UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4433

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DOROTHY LEE ANDERSON,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Columbia. Joseph F. Anderson, Jr., District 

Judge. (3:11-cr-00837-JFA-1)

Argued: May 17, 2013 Decided: July 10, 2013

Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.

Affirmed by unpublished opinion. Judge Wilkinson wrote the 

majority opinion, in which Judge Duncan joined. Judge Wynn 

wrote a dissenting opinion.

ARGUED: Jonathan McKey Milling, MILLING LAW FIRM, LLC, Columbia, 

South Carolina, for Appellant. Jamie L. Schoen, OFFICE OF THE 

UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. 

ON BRIEF: William N. Nettles, United States Attorney, Winston D. 

Holliday, Jr., Assistant United States Attorney, OFFICE OF THE 

UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

WILKINSON, Circuit Judge:

Defendant Dorothy Lee Anderson was convicted of twenty 

counts of various crimes for using stolen identities to 

fraudulently obtain federal income tax refunds. Anderson now 

challenges the jury’s guilty verdict on four of those counts, as 

well as the district court’s application of two sentencing 

enhancements. However, finding sufficient evidence to support the 

convictions and concluding that the district court did not err 

in applying either of the enhancements, we affirm.

I.

In late 2007, Anderson took steps to establish a tax 

preparation business under the name of “DL Anderson Tax 

Service.” She applied to the IRS for authorization to 

electronically file tax returns and was issued an Electronic 

Filing Identification Number (“EFIN”) for her business and a 

Preparer’s Tax Identification Number (“PTIN”) for herself as a 

paid tax preparer. Anderson used the EFIN and PTIN throughout 

2008 to submit returns for the 2007 tax year.

In February 2009, the IRS interviewed Anderson as part of 

an investigation into certain returns filed by her business 

putatively on behalf of paid clients. Each return in question 

indicated that the refund due was to be deposited into one of 

several bank accounts controlled by Anderson, and each named 
3

Anderson as a third-party designee authorized to receive private 

tax information relating to the filer. When asked about these 

returns, Anderson stated that her employee, Tamika Davis, 

prepared them, but an IRS agent assigned to the case later 

testified that he could find “no evidence of an existence of 

that person.” J.A. 55.

On September 21, 2011, a federal grand jury in the District 

of South Carolina charged Anderson in a twenty-one count 

superseding indictment with nineteen counts of submitting false, 

fictitious, or fraudulent claims against the United States, in 

violation of 18 U.S.C. § 287; one count of embezzling public 

money or property, in violation of 18 U.S.C. § 641; and one 

count of aggravated identity theft, in violation of 18 U.S.C. 

§ 1028A. The indictment alleged that Anderson stole the 

identities of nineteen individuals and used their personal 

information to file fraudulent tax returns, with refund payments 

routed to accounts under her control.

At trial, the government presented testimony by fourteen 

witnesses whose names appeared on tax returns corresponding to 

Counts 1, 2, 4-8, 11-14, and 16-18 of the indictment, each filed 

using Anderson’s EFIN and PTIN. The witnesses testified that 

they did not authorize Anderson to prepare the returns and that 

they did not receive any refund payments in connection with the 
4

filed returns. Moreover, they indicated that much of the 

personal information listed on the returns was incorrect. 

The government also called seven other witnesses, among 

them Ronald Cooley, President and CEO of Brookland Federal 

Credit Union (“Brookland”); Russell Sciandra, an IRS Special 

Agent; and Tracy Trivison, General Manager of Receivables 

Management Corporation (“RMC”), Anderson’s former employer. 

Cooley testified that Anderson controlled multiple accounts at 

Brookland and identified certain deposits made by the United 

States Treasury into those accounts. Sciandra linked the 

Treasury deposit amounts to refunds claimed on tax returns filed 

using Anderson’s EFIN and PTIN. And Trivison testified that, 

while working for RMC, Anderson had access to the names, 

addresses, social security numbers, and dates of birth of some 

of the individuals whose tax returns were filed using Anderson’s 

EFIN and PTIN.

The jury found Anderson guilty on twenty of the twenty-one 

counts charged in the indictment. She was acquitted only on 

Count 10, a false claim charge linked to a tax return for which 

the refund was deposited into a separate bank account not 

referenced on any of the eighteen other returns. The individual 

whose name appeared on the return associated with Count 10 did 

not testify at trial.
5

In calculating Anderson’s Guidelines sentencing range, the 

Presentence Investigation Report (“PSR”) applied two

enhancements now at issue in this appeal, one for the number of 

victims involved and another for the amount of loss implicated. 

The PSR reported that there were nineteen victims of Anderson’s 

crimes, triggering a two-level enhancement pursuant to U.S.S.G.

§ 2B1.1(b)(2), and that the intended loss amount was $437,822, 

triggering a fourteen-level enhancement pursuant to U.S.S.G. 

§ 2B1.1(b)(1)(H). After accounting for these enhancements, the 

PSR arrived at a final Guidelines range of 65 to 75 months’ 

imprisonment.

Counsel for Anderson raised ten objections to the PSR, none 

of which challenged the application of the aforementioned 

sentencing enhancements and most of which were resolved prior to 

sentencing. Anderson herself also filed a pro se objection 

challenging the “entire” PSR, but her statement was directed 

primarily at the jury’s finding of guilt and not at the proposed 

Guidelines range. She did not raise any specific objection to 

either enhancement. At the sentencing hearing, the district 

court denied Anderson’s request for a variance, resolved the 

outstanding PSR objections -- none of which affected the 

advisory Guidelines range -- and sentenced Anderson to 75 months 

of incarceration. This appeal followed.
6

II.

Anderson first challenges the sufficiency of the evidence 

supporting the jury’s guilty verdict on four of her eighteen 

convictions for submitting false or fraudulent claims against 

the United States. Although Anderson preserved her objection on 

this issue, we note at the outset that the standard for

overturning a jury verdict is a very difficult one to meet: a 

conviction will be reversed for insufficient evidence “only if 

no reasonable jury could have concluded beyond a reasonable 

doubt” that the defendant committed the charged crime. United 

States v. Sayles, 296 F.3d 219, 223 n.1 (4th Cir. 2002). On the 

other hand, if “substantial evidence” -- that is, direct or 

circumstantial evidence “that a reasonable finder of fact could 

accept as adequate and sufficient to support a conclusion of a 

defendant’s guilt beyond a reasonable doubt” -- supports a 

verdict, it will be upheld. United States v. Burgos, 94 F.3d 

849, 862 (4th Cir. 1996) (en banc); see also United States v. 

Stewart, 256 F.3d 231, 249 (4th Cir. 2001). Put otherwise, only 

when the prosecution’s failure to prove its case is “clear” will 

the defendant prevail in challenging a jury’s guilty verdict. 

Burks v. United States, 437 U.S. 1, 17 (1978).

Anderson specifically attacks her convictions on Counts 3, 

9, 15, and 19, four counts for which the government did not 

present live witness testimony as to the fraudulent nature of 
7

the corresponding tax returns. Notwithstanding the jury’s guilty 

verdict, Anderson asserts that she is entitled to a judgment of 

acquittal because “there is a total absence of evidence” with 

respect to the challenged counts. Appellant’s Reply Br. 3. But 

her argument is unavailing because the prosecution did present 

substantial evidence of her guilt, although that evidence was 

not in the form of direct witness testimony about the four 

specific returns related to those counts. 

It is well settled that the government is not required to 

come forward with any particular form of evidence and may 

proffer direct or circumstantial evidence to make its case. See

Stewart, 256 F.3d at 249 (citing Glasser v. United States, 315 

U.S. 60, 80 (1942)). Here, the prosecution presented significant 

circumstantial evidence demonstrating that Anderson was guilty 

on Counts 3, 9, 15, and 19, and we therefore affirm her 

convictions.

The tax returns associated with the four challenged counts 

were remarkably similar to those associated with the fourteen 

other counts on which Anderson was also convicted. All eighteen 

returns contained Anderson’s EFIN and PTIN -- indicating that 

she or someone acting at her instruction prepared the returns --

and each return directed the IRS to deposit the refund due into 

one of two accounts controlled by Anderson. As discussed above, 

the government presented direct testimonial evidence that 
8

fourteen of these eighteen returns contained false information 

and were filed without the authorization of the individuals 

named therein, none of whom actually received the associated 

refunds. That the four other returns contained the same EFIN, 

PTIN, and bank account information as these fourteen is ample 

circumstantial evidence from which a reasonable jury could have 

concluded -- and, here, did conclude -- that Anderson was guilty 

beyond a reasonable doubt on Counts 3, 9, 15, and 19. 

We need not resolve the question of precisely how many 

returns would, in some other case, be necessary to establish 

this pattern of fraud. Rather, we need hold only that the 

pattern established by direct testimony concerning the fourteen 

returns unchallenged on appeal was sufficient circumstantial 

evidence to justify the jury’s conclusion that the four other 

remarkably similar returns were also false or fraudulent. Faced 

with the government’s evidence, Anderson offered no satisfactory 

explanation to the jury as to why those remaining returns were 

not fraudulent. She was, of course, under no obligation to offer 

such an explanation, but her failure to do so raised the risk 

that the jury would accept the government’s evidence. See United 

States v. Echeverri-Jaramillo, 777 F.2d 933, 938 (4th Cir. 1985) 

(quoting McGautha v. California, 402 U.S. 183, 215 (1971)).

It is worth noting that the jury acquitted Anderson on 

Count 10, the only count for which the corresponding tax return 
9

directed the refund to a bank account not listed on any of the 

eighteen other returns. The acquittal indicates that the jury 

was not asleep at the wheel in this case but actually did 

consider whether the evidence presented by the prosecution -- to 

wit, the testimonial evidence and the marked resemblances among 

the eighteen tax returns -- established Anderson’s guilt on each 

individual count. The jury was convinced by the inculpatory 

evidence with respect to eighteen of the charged counts, but not 

by the evidence with respect to Count 10. This outcome is not 

altogether surprising given that the single return in Count 10 

deviated from the pattern displayed by the eighteen other 

returns. That the jury apparently recognized and reacted to a 

deviation from the pattern only fortifies the conclusion that 

the striking conformity to that pattern of the four convictions 

at issue here provided a sound basis for the jury’s verdict.

III.

Next, Anderson challenges the district court’s application 

of a two-level sentencing enhancement pursuant to U.S.S.G. 

§ 2B1.1(b)(2)(A) for the number of victims -- nineteen --

involved in this case. As an initial matter, we note that 

neither Anderson nor her attorney objected to the PSR’s 

application of this enhancement. Therefore, our review is for 

plain error. 
10

Under the plain-error standard, a defendant “must establish 

that the district court erred, that the error was plain, and 

that it affected [her] substantial rights.” United States v. 

Robinson, 627 F.3d 941, 954 (4th Cir. 2010) (internal quotation 

marks and alterations omitted) (citing United States v. Olano, 

507 U.S. 725, 734 (1993)). And even if a defendant meets this 

heavy burden, an appellate court has “discretion whether to 

recognize the error, and should not do so unless the error 

seriously affects the fairness, integrity or public reputation 

of judicial proceedings.” United States v. Hargrove, 625 F.3d 

170, 184 (4th Cir. 2010) (internal quotation marks omitted). 

Here, the district court did not commit error -- much less plain 

error -- and we therefore affirm its application of the numberof-victims enhancement.

Pursuant to U.S.S.G. § 2B1.1(b)(2)(A), a defendant is 

subject to a two-level sentencing enhancement if convicted of a 

theft or fraud offense involving ten or more victims. The 

commentary to § 2B1.1 generally defines the term “victim” as 

“(A) any person who sustained any part of the actual loss 

determined under subsection (b)(1); or (B) any individual who 

sustained bodily injury as a result of the offense.” U.S.S.G. 

§ 2B1.1 cmt. n.1. However, if an offense “involve[s] means of 

identification,” that definition is expanded to include “any 
11

individual whose means of identification was used unlawfully or 

without authority.” Id. cmt. n.4(E).

Anderson does not dispute that her conviction brings her 

within the scope of § 2B1.1(b)(2)(A) standing alone, given that 

she was convicted of using the means of identification of 

eighteen different individuals to submit fraudulent tax returns. 

See Appellant’s Br. 18. She argues, however, that the number-ofvictims enhancement does not apply to her because that 

enhancement is based on a “specific offense characteristic,” 

U.S.S.G. § 2B1.1(b)(1), and the commentary to a separate 

Guidelines provision for aggravated identity theft, U.S.S.G. 

§ 2B1.6 cmt. n.2, instructs a court to “not apply any specific 

offense characteristic for the . . . use of a means of 

identification when determining the sentence for the underlying 

offense” if the defendant is also being sentenced for aggravated 

identity theft -- as Anderson was here. The identity theft 

sentence, so Anderson’s argument goes, is meant to account for 

the unlawful use of a means of identification, such that 

application of the expanded definition of “victim” in 

§ 2B1.1(b)(2)(A) would “double count” the use of the stolen 

identities for sentencing purposes. See Appellant’s Br. 18-19. 

We decline to embrace Anderson’s reasoning. Like all of our 

sister circuits to have considered the issue, we conclude 

instead that § 2B1.6 does not preclude a district court from 
12

imposing a number-of-victims enhancement in conjunction with a 

sentence for aggravated identity theft. See United States v. 

Lyles, 2012 WL 5907483, at *5 (6th Cir. 2012) (unpublished); 

United States v. Manatau, 647 F.3d 1048, 1057 n.4 (10th Cir. 

2011); United States v. Yummi, 408 F. App’x 537, 541 (3d Cir. 

2010) (unpublished); see also United States v. Jenkins-Watts, 

574 F.3d 950, 961-62 (8th Cir. 2009).

Comment 2 to the aggravated identity theft Guidelines 

provision instructs a district court to refrain from applying an 

enhancement only if it is triggered by a “specific offense 

characteristic for the transfer, possession, or use of a means 

of identification.” U.S.S.G. § 2B1.6 cmt. n.2. The most natural 

reading of the comment limits its application to enhancements 

linked to the nature of the offense, such as the two-level 

enhancement found in § 2B1.1(b)(11)(C) that applies if an 

offense involved “the unauthorized transfer or use of any means 

of identification unlawfully to produce or obtain any other 

means of identification.” Applying this “means of 

identification” enhancement from § 2B1.1(b)(11)(C) in 

conjunction with an aggravated identity theft sentence would, in 

fact, augment a defendant’s sentence twice for the same 

substantive conduct -- use of a means of identification. Thus, 

per Comment 2, an enhancement under § 2B1.1(b)(11)(C) cannot be 

imposed alongside a sentence for aggravated identity theft.
13

By contrast, the § 2B1.1(b)(2)(A) enhancement at issue here 

looks only to the number of victims of the offense. That the 

term “victim” is defined to include the individuals whose means 

of identification were used in the crime does not transform 

§ 2B1.1(b)(2)(A) into an enhancement triggered by a “specific 

offense characteristic for the transfer, possession, or use of a 

means of identification.” As the Sixth Circuit has explained, 

the number-of-victims enhancement “punishes the impact of the 

crime, not the transfer, possession, or use of a means of 

identification.” Lyles, 2012 WL 5907483, at *5. As such, the 

instructions contained in Comment 2 do not bar the application 

of that enhancement here.

IV.

Finally, Anderson challenges the fourteen-level sentencing 

enhancement triggered by the PSR’s conclusion that her intended 

loss was $437,822. As with the number-of-victims enhancement, 

our review here is for plain error because neither Anderson nor 

her attorney objected to the PSR’s calculation of the loss 

amount or to the district court’s subsequent application of the 

corresponding enhancement. After reviewing Anderson’s 

contentions, we find no plain error in the district court’s 

sentencing decision on this point.
14

Although the PSR states that “[t]he facts of the case 

revealed the actual loss amount was $437,822.00,” J.A. 470, 

Anderson contends that she is subject to an enhancement only for 

the loss of $65,911 that was found by a jury, see Appellant’s 

Br. 24-25. However, it is clear that a district court may 

consider facts not found by a jury when issuing a sentence 

somewhere between the statutory minimum and maximum. See Harris 

v. United States, 536 U.S. 545, 566 (2002).1 Here, the district 

judge made a factual finding -- based on the PSR -- that 

Anderson’s intended loss amount was $437,822. That finding 

triggered an enhancement but did not take Anderson’s sentence 

beyond the statutory maximum for her offenses. A sentencing 

judge must remain free to make run-of-the-mill factual findings 

underlying advisory Guidelines enhancements without eliciting 

constitutional concerns. That is all the judge did here, and the 

amount-of-loss enhancement was thus permissible.

Anderson next complains that, even if the trial judge was 

free to impose an enhancement based on facts not found by a 

jury, the government failed to provide sufficient evidence to 

 1 Anderson asks us to vacate her sentence and remand the 

matter in light of the Supreme Court’s grant of certiorari in 

United States v. Alleyne, 457 F. App’x 348 (4th Cir. 2011) 

(unpublished), cert. granted, 133 S. Ct. 420 (2012) (No. 11-

9335). However, Alleyne involves the application of mandatory 

minimum sentences and is not relevant to the advisory Guidelines 

enhancement dispute here.
15

support the PSR’s loss calculation of $437,822. Appellant’s Br. 

21. But we must reject Anderson’s contention at the outset, 

because the government is not required to present evidence 

demonstrating the accuracy of facts in a PSR. See United States 

v. Terry, 916 F.2d 157, 162 (4th Cir. 1990). When challenging a 

PSR, a defendant “has an affirmative duty to make a showing that 

the information in the [document] is unreliable, and articulate 

the reasons why the facts contained therein are untrue or 

inaccurate.” Id. “Without an affirmative showing the information 

is inaccurate, the court is ‘free to adopt the findings of the 

[PSR] without more specific inquiry or explanation.’” Id.

(quoting United States v. Mueller, 902 F.2d 336, 346 (5th Cir. 

1990)). Here, Anderson failed to make an affirmative showing 

that the loss calculation in the PSR was inaccurate or 

unreliable, and her objection to that calculation now must 

therefore fail.

Moreover, Anderson’s argument misses the mark for a 

separate reason: the record does contain unrebutted evidence 

supporting the PSR’s loss calculation. We note as an initial 

matter that, for Guidelines sentencing purposes, loss amount is 

not limited to the actual loss resulting from the charged 

conduct. Rather, the Guidelines indicate that the defendant’s 

intended loss is the relevant figure when it exceeds actual 

loss, U.S.S.G. § 2B1.1 cmt. n.3(A), and both charged and
16

uncharged conduct may be considered, see U.S.S.G. § 1B1.3(a) & 

cmt. background. Moreover, a sentencing court need not precisely 

calculate intended loss, as the Guidelines require only “a 

reasonable estimate of the loss.” U.S.S.G. § 2B1.1 cmt. n.3(C).

At trial, the government introduced certain bank statements 

from Anderson’s accounts at Brookland, but was not permitted to 

introduce evidence that the Treasury deposited $333,403 worth of 

tax refunds into those accounts in 2008. The district judge 

ruled that the government could introduce evidence of loss 

associated with only the nineteen counts charged in this case. 

Thus, the jury was not permitted to review the $333,403 figure, 

although it is referenced in the record.2

It is well settled, however, that the ordinary rules of 

evidence do not apply in the sentencing phase of a criminal 

proceeding. See 18 U.S.C. § 3661; Fed. R. Evid. 1101(d)(3). 

Thus, the fact that indications of the total loss amount were 

not before the jury did not bar the PSR or the trial judge from 

using such evidence to determine Anderson’s sentence. Of course, 

in the absence of any objection, the government had no 

 2 The record also indicates that the IRS was “actually able 

to identify some of the refunds as fraudulent and stop them 

before they went out.” J.A. 274. Therefore, it is unremarkable 

that Anderson’s intended loss amount ($437,822) exceeds the 

amount of fraudulent tax refund payments actually deposited into 

her accounts ($333,403).
17

obligation to affirmatively establish the total loss amount 

stated in the PSR in the first place. See Terry, 916 F.2d at 

162. However, the ample evidentiary support for that loss 

calculation only bolsters our conclusion that the district court 

did not err -- much less commit plain error -- when it applied 

the fourteen-level sentencing enhancement in this case.

V.

For the foregoing reasons, the judgment of the district 

court is affirmed.

AFFIRMED
18

WYNN, Circuit Judge, dissenting:

To prove a violation 18 U.S.C. § 287, the government bears 

the burden of establishing “two elements: 1) making or 

presenting a claim to any agency of the United States 2) knowing 

such claim to be false, fictitious, or fraudulent.” United 

States v. Ewing, 957 F.2d 115, 119 (4th Cir. 1992). There is no 

dispute that filing a tax return for a refund constitutes 

“presenting a claim” to the IRS. The key issue here is whether 

the government presented sufficient evidence to show that each 

of the tax returns in this matter supporting an individual count 

under 18 U.S.C. § 287 was “false, fictitious, or fraudulent.”

For the fourteen returns supporting Counts 1, 2, 4-8, 11-

14, and 16-18, the government presented not only the returns but 

also the persons named on those returns, who testified that the 

returns were unauthorized and or inaccurate. Accordingly, I 

agree with the majority that the government met its burden of 

proof under 18 U.S.C. § 287 as to those fourteen counts.

As to Counts 3, 9, 15, and 19, however, the government 

presented only the four returns. The government essentially 

argued that because these naked returns looked just like the 

fourteen returns clothed by witnesses’ testimonies, they were 

dressed in the requisite criminality. The majority apparently 

agreed, stating that the four naked returns were “remarkably 

similar” to the returns clothed by witnesses’ testimonies. 
19

Supra 7. But the only similarities between the naked and 

clothed returns—the tax preparer information (PTIN and EFIN) and 

refund destination—show nothing inherently false or fraudulent 

about the four naked returns.

Moreover, the use of the PTIN and EFIN shows only that DL 

Anderson prepared the return, not that this preparation was 

unauthorized. Similarly, the use of the routing number shows 

only that the refund was to be deposited into an account 

controlled by Anderson, not that this direction was 

unsanctioned. Nor is it unlawful to direct a refund to a tax 

preparer or another third party. Put simply, the tax preparer 

information (PTIN and EFIN) and refund destination appear on all 

returns filed by tax preparers. Indeed, based on this evidence, 

the returns were just as likely honest and accurate as they were 

fraudulent and false.

Further, merely associating these naked returns with the 

fourteen other returns was an insufficient basis for convicting

Anderson on Counts 3, 9, 15, and 19. A pattern of conduct may 

be used to connect a crime to a particular individual or 

establish intent. Here, however, the pattern is not being used 

to infer that it was Anderson who filed the four returns, but 

that those returns were false in the first place—that there was, 

in fact, a crime. See United States v. Drape, 668 F.2d 22, 26 

(1st Cir. 1982) (“Appellant’s signature on his [tax] return was 
20

sufficient to establish knowledge once it had been shown that 

the return was false.”) (emphasis added). Yet this cannot be, 

as “[t]he first presumption is that a defendant is innocent 

unless and until the government proves beyond a reasonable doubt 

each element of the offense charged.” Clark v. Arizona, 548 

U.S. 735, 766 (2006). Drawing this inference belies the bedrock 

principle of criminal law that the government bears the burden 

of proving each element of an offense. In re Winship, 397 U.S. 

358, 364 (“[W]e explicitly hold that the Due Process Clause 

protects the accused against conviction except upon proof beyond 

a reasonable doubt of every fact necessary to constitute the 

crime with which he is charged.”).

To be sure, the government need not have presented direct 

witness testimony to demonstrate that the tax returns associated 

with Counts 3, 9, 15, and 19 were false or fraudulent; 

nonetheless, some evidence was required to carry the 

government’s burden to prove this element—and none was 

presented. Because the evidence at trial was insufficient for 

any rational fact-finder to conclude beyond a reasonable doubt 

that these four naked returns were false or fraudulent, I 

respectfully dissent.