[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 19

- 11058 Non

- Argument Calendar

________________________ D.C. Docket No. 6:17

- cr - 00140

- PGB

- LRH

- 3

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus JACQUES JEANTY, Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Middle District of Florida

________________________ ( April 22, 2021 ) Before BRANCH , LAGOA , and BRASHER , Circuit Judges.
PER CURIAM :

USCA11 Case: 19-11058 Date Filed: 04/22/2021 Page: 1 of 112 Jacques Jeanty was convicted of conspiring to steal money from the United States and stealing property from the United States for his participation in a tax refund fraud conspiracy. J acques pleaded not guilty , and , at trial, argued that he was ignorant of the con spiracy and that the other conspirators

— his children and an employee of a family business

— were actually to blame. The district court gave a deliberate ignorance instruction to the jury, which thereafter convicted J acques
. The district court then sentence d Jacques to 78 months’ imprisonment and did not grant his request for a downward variance based on his poor health and lack of criminal history.
J acques appeal s , challenging the district court’s deliberate ignorance jury instruction and the lack of a down ward variance in his sentence. After careful consideration, we affirm the district court’s deliberate ignorance jury instruction. And because w e lack jurisdiction to consider J acques ’s challenge to the denial of his request for a downward variance, we dismiss that portion of his appeal

.
I. BACKGROUND A. Factual B ackground Jacques’ s daughter, Jeanine Jeanty , owned and operated Jahira’s Convenience Store. Jahira’s employed Jacques’s son , Jean, as well as Samuel Belizaire. I n October 2010, Jeanine and Jean

— together with Jacques and Belizaire

— began submitting fraudulent federal tax returns. USCA11 Case: 19-11058 Date Filed: 04/22/2021 Page: 2 of 113 The conspirators’ scheme was simple : Jeanine purchased stolen identification information and then she, Jean, and Belizaire used the inform ation to prepare fraudulent tax returns. The trio carried out the scheme at Jahira’s. When the conspirators filled out the fraudulent tax returns, they would use various addresses that did not belong to the victims, including several addresses for
proper ties that belonged to Jacques or one of the other conspirators. Based on the information in the fraudulent tax returns , the Internal Revenue Service (“IRS”) would mail refund checks addressed to the victims to the listed addresses. After receiving the checks , one of the conspirators would bring them to Jahira’s. Jeanine, Jean, or Belizaire would falsely endorse the checks, and then one of the conspirators would deposit the checks into one of the seven bank accounts the conspirators had op ened to receive the tax return checks

. In total, the conspirators deposited 400 fraudulent checks totaling $2,764,771 into the seven bank accounts. Jacques was involved in this scheme in several ways

. He was sometimes at Jahira’s while the others prepare d the fraudulent tax returns. He also owned several properties to which the conspirators had arranged to have the checks mailed. For example, Jacques’s driver’s license listed his address as an apartment

on Ernest Drive from 2010

– 2012. Jacques later told IRS agents that he lived there. The IRS mailed eight refund checks to various taxpayers at that address between April 2011 and March 2012. Another refund check was sent to a different property

USCA11 Case: 19-11058 Date Filed: 04/22/2021 Page: 3 of 114 that Jacques owned on Galbi Drive. When a refund check arrived at one of Jacques’s properties, he sometimes brought the check to Jahira’s himself and sometimes asked Jean to pick it up for him. Jacques was sometimes at Jahira’s when one of the other conspirators falsely endorsed a refund check. Jacques also opened eight bank accounts in 2012

— some of them personal, some of them jointly with another conspirator, and some of them on behalf of Jahira’s. The conspirators

— including Jacques himself

— deposited f raudulent tax return checks into these accounts. J acques and Jean also registered a limited liability corporation, J&J Multi Services Co., LLC , and obtained a license for it as a check

- cashing business. They listed Jacques as the registered agent and manager of the company on the registration

. J&J was a shell company and Jacques and Jean deposited 153 fraudulent return checks totaling $960,922 into the J&J account

. Jacques was out of the country for part of the duration of the fraud scheme. He was travelling and absent fo r six non

- consecutive months of the full 21 months the scheme lasted.
B. Procedural H istory A grand jury indicted Jacques on one count of conspiring to steal money from the United States, in violation of 18 U.S.C. §§ 371 and 641 , and one count of stealing property from the United States, in violation of 18 U.S.C. §§ 641 and 642.
J acques pleaded not guilty to both charges and his trial began in August 2018.

USCA11 Case: 19-11058 Date Filed: 04/22/2021 Page: 4 of 115 However, th e trial resulted in a hung jury. J acques ’s second trial, the one at issue in this appeal, began in December 2018.
J acques ’ s defense was ignorance of the conspiracy. After the close of evidence, t he district court held an informal charge conference with the parties to discuss the jury instructions. At th e conference, J acques objected to the district court’s inclusion of a jury instruction regarding deliberate ignorance

. The district court overruled J acques ’s objection , explaining that J acques ’s ignorance defense and the totality of the facts

— checks addressed to other people arrived at his residence or properties he controlled, he brought those checks to the convenience store, he opened multiple bank accounts, and the checks were not directly related
to the convenience store’ s business

— supported an inference that there was a high probability J acques was aware of the fraudulent checks and purposefully avoided learning all the facts. J acques maintained his objection to the deliberate i gnorance instruction. The district court’s instruction to the jury on deliberate i gnorance was : If a Defendant’s knowledge of a fact is an essential part of a crime, it is enough that the Defendant was aware of a high probability that the fact existed

– unless the Defendant actually believed the fact did not exist. “Deliberate avoidance of positive knowledge”

– which is the equivalent of knowledge

– occurs, for example, if a defendant possesses a package and believes it contains a controlled substance but deliberately avoids learning that it contains the controlled substance so he or she can deny kno wledge of the package’s contents. USCA11 Case: 19-11058 Date Filed: 04/22/2021 Page: 5 of 116 So you may find that a defendant knew about the possession of a controlled substance if you determine beyond a reasonable doubt that the defendant (1) actually knew about the controlled substance, or (2) had every reason to know but deliberately closed his eyes. But I must emphasize that negligence, carelessness, or foolishness isn’t enough to prove that the Defendant knew about the possession of the controlled substance. The jury found J acques guilty on both counts. At sentencing, the district court found Jacques’s total offense level to be 28 and that he had a criminal history categ ory of I , which resulted in a U

. S

. Sentencing G uideline s range of 78 to 97 months’ imprisonment. J acques argued that he should receive a non

- prison sentence, or, in the alternative, a downward variance to a 24

- month s’ imprisonment

. He argued that he was not well

- educated and came from a broken home and asserted that “the guidelines [were] very tough” on him, especially given that his children were the principal actors in the scheme.
J acques also pointed out that he had no criminal history and was unl ikely to commit future crimes. Finally, he explained that he had physical health issues

— heart issues and general poor physical health that required eight prescriptions

— that should be taken into consideration. The district court sentenced J acques to a term of 78 months ’ imprisonment : 60 months for the conspiracy conviction and 78 months for the fraud conviction, to run concurrently, with two years of supervised release and a restitution payment of $2,764,769. The district court explained that it had consid ered the sentencing

USCA11 Case: 19-11058 Date Filed: 04/22/2021 Page: 6 of 117 factors in 18 U.S.C. § 3553(a): the nature of the crime ; J acques’ s lack of criminal history ; and the need for the sentence to reflect the gravity of the crime, promote respect for the law, and to provide just punishment

. The district court noted that the fraud scheme last ed for two years, was complex, and that J acques had been a participant from the scheme’s inception and had played a central role by creating a fraudulent company and using it to open bank accounts to conc eal the illegal activity. The district court further explained that the 78

- month sentence was adequate because the public needed to understand that commonplace fraud schemes such as this one carried serious consequences and that the sentence would promote respect for the law and provide just punishment. The district court also noted that it had denied J acques’ s request for a non

- prison sentence or a downward variance based on its assessment of the § 3553(a) factors.
J acques timely appealed.
II. DISCUSSION A. The Deliberate Ignorance Jury Instruction
J acques argues that the district court erred by instructing the jury on deliberate ignorance because the facts do not support the instruction. He argues that he did not know about the fraud committed by the other conspirators and that the government presented no evidence that he knew his own actions were illegal or that he deliberately avoided learning the facts.

USCA11 Case: 19-11058 Date Filed: 04/22/2021 Page: 7 of 118 We review de novo a challenge to the district court’s jury instructions

. United States v. Stone , 9 F.3 d 934, 937 (11th Cir. 1993). “[ D ] istrict courts have broad discretion in formulating jury instructions provided that the charge as a whole accurately reflects the law and the facts. ” United States v. Williams , 526 F.3d 1312, 1320 (11th Cir. 2008) (quotation omitted)

. “[W]e will not reverse a conviction on the basis of a jury charge unless the issues of law were presented inaccurately, or the charge improperly guided the jury in such a substantial way as to violate due process.” United States v. Prather , 205 F.3d 1265, 1270 (11th Cir.
2000 ) (citation and quotation marks omitted) . “If the instructions accurately reflect the law, we give the [district] court wide discretion in determining the style and wording of the instructions.” Williams , 526 F .3d at 1321. “[A] deliberate ignorance instruction is appropriate when the facts support the inference that the defendant was aware of a high probability of the existence of the fact in question and purposefully contrived to avoid learning all of the facts in order to have a defense in the event of a subsequent prosecution.” United States v.
Garcia

- Bercovich , 582 F.3d 1234, 1237 (11th Cir. 2009) (quoting United States v.
Perez

- Tosta , 36 F.3d 1552, 1564 (11th Cir. 1994) ). This standard is the same for both direct and circumstantial evidence. United States v. Arias , 984 F.2d 1139, 1143 (11th Cir. 1993). An erroneous deliberate ignorance instruction is harmless if the jury was properly instructed that finding deliberate ign orance requires proof

USCA11 Case: 19-11058 Date Filed: 04/22/2021 Page: 8 of 119 beyond a reasonable doubt, the jury was instructed on a theory of actual knowledge, and there was sufficient evidence to support that theory. Stone , 9 F.3d
at 937

– 38; United States v. Steed , 548 F.3d 961, 977 (11th Cir. 2008). Here, the district court did not err when it gave a deliberate ignorance jury instruction. Numerous pieces of evidence support the inference that Jacques was aware of a high probability that his conduct was illegal and that he purposefully avoided learning all of the facts

. For example , many checks addressed to other people arrived at J acques ’s residence and other properties he owned, and he brought those checks to Jahira’s and either deposited them into multiple bank accounts that he had opened or gave them to another conspirator to deposit . The checks were not obviously related to Jahira’s bu siness. J acques opened a bank account in the name of a shell company . He was present at Jahira’s while the other conspirator s were preparing fraudulent tax returns and fraudulently endorsing tax refund checks. Taken together, these facts provide circums tantial evidence that
J acques a ttempted to remain ignorant of the legality of his own actions and the source of the money while allowing the other conspirators to continue operating. Accordingly, the district court’s deliberate ignorance instruction was n ot

erroneous. 1

1 E ven if the deliberate ignorance instruction was erroneous, any error that may have resulted was harmless because the district court also included an instruction on actual knowledge to the jury. See Stone , 9 F.3d at 937

– 38; Steed , 548 F.3d 977.

USCA11 Case: 19-11058 Date Filed: 04/22/2021 Page: 9 of 1110 B. J acques’ s Request for a Downward Variance
J acques argues that the district court abused its discretion by denying his request for a downward variance. He asserts that his lack of criminal history and poor health support his request for a downward variance and that the district court had discretion under U.S.S.G. § 5K2.20 2 to grant his request. W e lack jurisdiction to review a district court’s decision to deny a request for a downward variance unless the district court incorrectly believed that it lacked the authority to grant the variance

. United States v. Dudley , 463 F.3d 1221, 1228 (11th Cir. 2006) (citing United States v. Winningear , 422 F. 3d 1241, 1245 (11th Cir. 2005)). We have further explained that “when nothing in the record indicates otherwise, we assume the sentencing court understood it had authority to depart downward.” Id . (quoting United States v. Chase , 174 F.3d 1193, 1195 (11t h Cir. 1999)). J acques points to nothing in the transcript of the sentencing proceedings that indicates that the district court believed it lacked the authority to grant a downward variance. To the contrary, t he district court analyzed the 18 U.S.C. § 35 53 (a) factors and determined that J acques ’s sentence was sufficient to satisfy

2 U.S.S.G. § 5K2.20 provides, in relevant part, that: The court may depart downward under this policy statement only if the defendant committed a single criminal occurrence or single criminal transaction that (1) was committed without significant planning; (2) was of limited duration; and (3) represents a marked deviation by the defendant from an otherwise law

- abiding life. USCA11 Case: 19-11058 Date Filed: 04/22/2021 Page: 10 of 1111 th ose factors while remaining on the low end of the guidelines range

. That analysis suggest s to us that the district court understood that it had discretion to grant a downward variance but chose not to do so. Thus, w e do not have jurisdiction to review the merits of Jacques’s request for a downward variance.

* * * For these reasons, we affirm.
AFFIRM ED. USCA11 Case: 19-11058 Date Filed: 04/22/2021 Page: 11 of 11