2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-10-2015

USA v. Patricia Fountain

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 13-3023, 13-3025, 13-3478

_____________

UNITED STATES OF AMERICA

v.

PATRICIA FOUNTAIN,

Appellant in 13-3023

CALVIN JOHNSON, JR.,

Appellant in 13-3025

and LARRY ISHMAEL,

Appellant in 13-3478

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-12-cr-00155-001, 2-12-cr-00155-002 and 

2-12-cr-00155-003, )

District Judge: Honorable Stewart Dalzell

_______________

Argued: December 10, 2014

Before: FUENTES, FISHER, and KRAUSE, Circuit Judges.
2

(Opinion Filed: July 10, 2015) 

_______________

JOSEPH J. KHAN (Argued)

Office of United States Attorney

615 Chestnut Street

Suite 1250 

Philadelphia, PA 19106

Counsel for Appellee United States of America

RICHARD COUGHLIN

JULIE A. MCGRAIN (Argued)

Office of Federal Public Defender

800-840 Cooper Street

Suite 350

Camden, NJ 08102

Counsel for Appellant Patricia Fountain

LAWRENCE J. BOZZELLI (Argued)

Suite 701

211 North 13th Street

Philadelphia, PA 19107

Counsel for Appellant Calvin Johnson, Jr.

DANIEL I. SIEGEL (Argued)

Office of Federal Public Defender

800 King Street

Suite 200

Wilmington, DE 19801
3

Counsel for Appellant Larry Ishmael

___________

OPINION OF THE COURT

KRAUSE, Circuit Judge.

This is a consolidated criminal appeal, arising out of a 

large tax fraud conspiracy, that presents us with an 

opportunity to clarify the mental states required of the payor 

and payee to uphold a conviction for Hobbs Act extortion 

under color of official right. For the reasons set forth below, 

we will affirm.

1

I. Background

Between 2007 and 2012, Appellant Patricia Fountain, 

an IRS employee, helped orchestrate several schemes to 

fraudulently obtain cash refunds from the IRS. Those 

schemes involved filing false tax returns that claimed refunds 

pursuant to the Telephone Excise Tax Refund (“TETR”), the 

First Time Home Buyer Credit (“FTHBC”), or the American 

Opportunity Tax Credit (“AOTC”). Fountain employed her 

knowledge of the IRS’s fraud detection procedures to avoid 

suspicion, including that TETR claims below $1,500 would 

not be flagged for review. Over time, Fountain and her 

significant other, Appellant Larry Ishmael, enlisted various 

people, including Appellant Calvin Johnson, Jr., to recruit 

 

1 The District Court had subject matter jurisdiction 

under 18 U.S.C. § 3231, and we have jurisdiction under 28 

U.S.C. § 1291 and 18 U.S.C. § 3742.
4

claimants who would provide their personal information in 

exchange for a portion of a cash refund. During the same 

period, Johnson became involved in an additional conspiracy 

with some of his family members and other acquaintances

that involved submitting fraudulent FTHBC and AOTC 

claims. 

After a two-week trial, a jury convicted Fountain, 

Ishmael, and Johnson on multiple counts of conspiracy and 

filing false claims to the IRS in violation of 18 U.S.C. §§ 286

and 287. Fountain was also convicted on one count of Hobbs 

Act Extortion and two counts of making or presenting false 

tax returns, violations of 18 U.S.C. § 1951(a) and 26 U.S.C. § 

7206, respectively. Additionally, Johnson was convicted of 

filing false claims to the IRS while on pretrial release in 

violation of 18 U.S.C. §§ 287 and 3147(1). 

Fountain moved for a judgment of acquittal after trial 

on the Hobbs Act charge, which the District Court denied. 

Following evidentiary hearings on the dollar amounts 

involved in the Defendants’ schemes, the District Court 

sentenced Fountain to 228 months’ imprisonment and a threeyear term of supervised release, and ordered her to pay 

restitution of $1,740,221.40. The District Court sentenced 

Ishmael to 144 months’ imprisonment and a three-year term 

of supervised release, and ordered him to pay restitution of 

$1,751,809.40. Finally, the District Court sentenced Johnson 

to 216 months’ imprisonment and a three-year term of 

supervised release, and ordered him to pay restitution of 

$1,248,392.40. Each of these sentences fell within the 

applicable Guidelines ranges after the District Judge imposed 

various enhancements.

II. Discussion
5

A. Fountain’s Hobbs Act Conviction

Fountain contends that the evidence at trial was 

insufficient to support a conviction for extortion under color 

of official right. While sufficiency of the evidence is a 

question of law subject to plenary review, “[w]e review ‘the 

evidence in the light most favorable to the Government,’ 

afford ‘deference to a jury’s findings,’ and draw ‘all 

reasonable inferences in favor of the jury verdict.’” United 

States v. Moyer, 674 F.3d 192, 206 (3d Cir. 2012) (quoting 

United States v. Riley, 621 F.3d 312, 329 (3d Cir. 2010)). We 

will overturn the verdict “only when the record contains no 

evidence, regardless of how it is weighted, from which the 

jury could find guilt beyond a reasonable doubt.” Id. (quoting 

Riley, 621 F.3d at 329) (internal quotation marks omitted).

The extortion count against Fountain alleged that she 

obtained and attempted to obtain money from Deborah 

Alexander under color of official right as an IRS employee. 

As the Government demonstrated at trial, Alexander was a 

client at Natashia Witherspoon’s hair salon. Witherspoon, 

who was also Fountain’s hairstylist, recruited Alexander and 

other clients to provide personal information so that Fountain 

could file fraudulent tax returns in their names. Witherspoon 

had Alexander fill out blank IRS forms with her personal 

information and then gave those forms to Fountain for her to 

file. Alexander never dealt directly with Fountain, but she 

knew Fountain worked for the IRS. Sometime after her tax 

return was filed, Witherspoon told her that she had to pay 

Fountain a $400 fee. Alexander testified that she became 

suspicious, but paid the fee anyway. Witherspoon testified 

that she told some people that Fountain would “red flag” 

them if they did not pay her fee, but did not say whether she 

conveyed that information to Alexander in particular. 
6

Likewise, Alexander did not recall Witherspoon mentioning 

any consequences for failing to make the payment.

We hold that the evidence adduced at trial was 

sufficient to support Fountain’s Hobbs Act conviction. 

Because we have articulated the appropriate standard for an 

official right extortion conviction in varying ways in past 

cases, we take this opportunity to synthesize our case law and

explain how we come to this result. 

1. Elements of Hobbs Act Extortion 

Under Color of Official Right 

The federal statute penalizing extortion, 18 U.S.C. § 

1951, a codification of the 1946 Hobbs Act, provides that:

Whoever in any way or degree obstructs, 

delays, or affects commerce or the movement of 

any article or commodity in commerce, by 

robbery or extortion or attempts or conspires so 

to do, or commits or threatens physical violence 

to any person or property in furtherance of a 

plan or purpose to do anything in violation of 

this section shall be fined under this title or 

imprisoned not more than twenty years, or both.

18 U.S.C. § 1951(a). Extortion is defined as “the obtaining of 

property from another, with his consent, induced by wrongful 

use of actual or threatened force, violence, or fear, or under 

color of official right.” Id. § 1951(b)(2). As we explained in 

United States v. Manzo, 636 F.3d 56 (3d Cir. 2011):
7

Congress sought to proscribe coercive activity 

through enactment of the Hobbs Act. Under the 

terms of the Hobbs Act, a person can only 

commit extortion in one of two ways: (1) 

through threatened force, violence or fear or (2) 

under color of official right. See 18 U.S.C. § 

1951(b)(2). Both of these types of extortion are 

inherently coercive.

Id. at 65. 

Whereas in a case of extortion by force, violence, or 

fear, the acts or threats supply the coercion, “when 

proceeding under a ‘color of official right’ theory, the ‘misuse 

of public office is said to supply the element of coercion.’” 

Id. (quoting United States v. Hathaway, 534 F.2d 386, 393 

(1st Cir. 1976)); see also Evans v. United States, 504 U.S. 

255, 266 (1992) (adopting the majority rule that “the coercive 

element” of Hobbs Act extortion under color of official right 

“is provided by the public office itself”). In other words, the 

importance of a defendant’s public office or official act to a 

Hobbs Act charge is its coercive effect on the payor. 

Accordingly, after reviewing the legislative history and 

evaluating competing constructions of the statute, the 

Supreme Court held in Evans that to prove a conviction for 

extortion under color of official right, “the Government need 

only show that a public official has obtained a payment to 

which he was not entitled, knowing that the payment was 

made in return for official acts.” 504 U.S. at 268. 

We interpreted Evans in United States v. Antico, 275 

F.3d 245 (3d Cir. 2001), and explained that “no ‘official act’ . 
8

. . need be proved to convict under the Hobbs Act.” Id. at 

257. Rather, we focus on (1) the motivation of the payor, that 

is, whether a payment “was made in return for official acts,”

and (2) whether the defendant knew the payor’s motivation.

Id. (emphasis added) (quoting Evans, 504 U.S. at 268) 

(internal quotation marks omitted). As such, in Antico, we 

approved a district court’s instruction that the jury had to 

decide “whether the giver gave the payments . . . because he 

believed the defendant would use his office for acts not 

properly related to his official duty.” Id. at 259 (underline 

added). Similarly, in United States v. Urban, 404 F.3d 754 

(3d Cir. 2005), we upheld a Hobbs Act conviction where the 

government adduced substantial evidence that (1) the payors 

made payments to the defendants knowing they were “public 

officials exercising governmental authority”; (2) the payors 

“made payments in order to assure advantageous exercise of 

that government authority”; and (3) the defendants “knew that 

the [payors’] payments were made for an improper purpose, 

i.e., the influencing of their governmental authority.” Id. at 

769.

In other decisions, however, we have expressly 

identified another consideration in our official right extortion 

inquiry: whether the payor’s belief was reasonable. This line 

of cases began with our en banc decision in United States v. 

Mazzei, 521 F.2d 639 (3d Cir. 1975) (en banc). There, the 

defendant, a state senator, received payments in exchange for 

helping a corporation obtain a lease from a state executive 

agency. Id. at 641. The defendant argued that he could not 

have been acting under color of official right because he “had 

no official power” in that area, and he “never pretended to 

have any official power.” Id. at 643. We acknowledged that 

the “defendant had no statutory power as a state senator to 
9

control the granting of leases by state executive agencies,” 

but rejected the defendant’s argument, because “in order to 

find that defendant acted ‘under color of official right,’ the 

jury need not have concluded that he had actual de jure power 

to secure grant of the lease so long as it found that [the payor] 

held, and defendant exploited, a reasonable belief that the 

state system so operated that the power in fact of defendant’s 

office included the effective authority to determine recipients 

of the state leases here involved.” Id. 

We recently extended Mazzei in United States v. 

Bencivengo, 749 F.3d 205 (3d Cir. 2014). There, we upheld a 

Hobbs Act conviction of the Mayor of Hamilton Township, 

New Jersey, who accepted payments in exchange for agreeing 

to influence the awarding of School Board insurance 

contracts. Id. at 208. We noted that the defendant “had no 

actual de jure or de facto power over the award” of such 

contracts, and that unlike in Mazzei, there was no evidence 

“that [the payor] believed he had such power.” Id. at 212. 

Nonetheless, we held that Mazzei extended to situations 

where a payor reasonably believed the defendant possessed

“influence,” if not “effective power,” over an exercise of 

governmental authority. Id. at 212-13. Thus, we concluded,

“where a public official has, and agrees to wield, influence 

over a governmental decision in exchange for financial gain, 

or where the official’s position could permit such influence, 

and the victim of an extortion scheme reasonably believes that 

the public official wields such influence, that is sufficient to 

sustain a conviction under the Hobbs Act, regardless of 

whether the official holds any de jure or de facto power over 

the decision.” Id.

Read together, our holdings in Mazzei, Antico, Urban, 

and Bencivengo, while emphasizing different aspects of the 
10

payor’s motivation, are consistent in accounting for the 

payor’s reasonable belief as a reflection of the coercive effect 

of the defendant’s official acts. The reason we included in 

our inquiry the reasonableness of the payor’s belief that the 

defendant would engage in particular “official acts”—

whether by exercising de jure power, de facto power, or 

“influence”—in Mazzei and Bencivengo but not Antico or 

Urban is simple: The defendant’s authority to engage in the 

relevant “official acts” was not contested in Antico or Urban.

Both of those cases involved Philadelphia Licenses and 

Inspections officers who accepted illicit payments in 

exchange for favorable exercises of their authority, i.e., they 

rewarded people who paid and punished people who did not. 

See Urban, 404 F.3d at 760-62; Antico, 275 F.3d at 249.2

Those defendants clearly exercised de jure power over 

governmental decisions. In contrast, in Mazzei and 

Bencivengo, the defendants’ authority was contested, as 

indicated above.

3

 But in all of these cases, reasonableness 

was inherent in our inquiry. 

Thus, our case law articulates a unified standard for 

official right extortion cases: We will uphold a conviction for 

Hobbs Act extortion where the evidence indicates (1) that the 

payor made a payment to the defendant because the payor 

held a reasonable belief that the defendant would perform 

official acts in return, and (2) that the defendant knew the 

payor made the payment because of that belief. 

 

2 One might refer to these as “classic” official right 

extortion cases.

3 Fountain raises similar arguments here, as explored 

below.
11

2. Application

Upon a careful consideration of the record, we agree 

with the District Court that a rational juror could conclude 

that Alexander paid Fountain $400 with the understanding 

that Fountain would use her position at the IRS to help her 

obtain a cash refund, and that Fountain knew that Alexander 

paid her for that reason. While Fountain may not have had 

any power over the IRS’s decision to grant any of the 

fraudulent refunds she filed, we need not find that Fountain 

actually used her position or performed an official act in 

furtherance of the scheme to uphold her conviction; the focus 

of our inquiry is on Alexander’s state of mind. See Antico, 

275 F.3d at 257 (“In other words, no ‘official act’ (i.e., no 

‘quo’) need be proved to convict under the Hobbs Act. 

Nonetheless, the official must know that the payment—the 

‘quid’—was made in return for official acts.”); see also 

Urban, 404 F.3d at 768 (“[T]he government need not prove . . 

. that the public official acted or refrained from acting as a 

result of payments made.”). 

Fountain contends both that Alexander did not 

subjectively believe and that no reasonable person in 

Alexander’s position could have believed that Fountain, a 

customer service representative for the IRS, could influence 

whether she received a refund. Viewing the evidence in the 

light most favorable to the Government, however, the 

evidence at trial allowed the jury to find that Alexander 

reasonably believed Fountain could wield such influence. It 

is not clear exactly what Alexander understood about 

Fountain’s position, as Alexander interacted only with 

Witherspoon, but as Alexander testified, once her refund 

claim was submitted, she was told she had to pay $400 of the 

refund to Fountain and, despite her suspicions, she acquiesced 
12

because she was “still hoping to get the money.” Fountain’s 

App. 327. This suggests she understood her $400 payment to 

be compensation for services rendered. Indeed, when the IRS 

demanded repayment of the refund, Alexander told Fountain 

and Witherspoon, “I want my $400 back, because if I had to 

pay the $1,400 back [to the IRS], I’m not going to give her 

$400.” Fountain’s App. 318. On the basis of this evidence, 

the jury easily could have found that Alexander reasonably

believed Fountain would help her obtain the refund.

The jury also could have found that Alexander 

reasonably feared reprisal. Alexander paid Fountain after her 

claim had been submitted and despite her suspicions about 

Fountain’s demand for payment. Even though neither 

Alexander nor Witherspoon testified to any explicit 

discussion with Alexander about the consequences of failing 

to pay, Witherspoon did testify generally that Fountain 

threatened to “red flag” claimants who did not pay her fee and 

that she repeated Fountain’s warning to claimants. Fountain’s 

App. 265-66. Thus, a reasonable inference from the 

testimony, as well as the timing of the payment, is that 

Alexander paid Fountain because she was concerned that 

Fountain, as an IRS employee, otherwise would have

prevented the refund or flagged it to a superior for suspected 

fraud.

4

Finally, we reject Fountain’s argument that the 

evidence in support of the Hobbs Act charge was insufficient 

because the Government failed to prove that she used the 

 

4

Indeed, the Government demonstrated that Fountain 

did submit amended returns for claimants who ultimately 

failed to pay, leading the IRS to reclaim some of the 

fraudulently-obtained refunds, including from Alexander.
13

power of her employment at the IRS to induce Alexander to 

pay her in exchange for filing a false claim with the IRS. 

Inducement is not an element of Hobbs Act extortion under 

color of official right. Evans, 504 U.S. at 256; Urban, 404 

F.3d at 768; Antico, 275 F.3d at 256. Accordingly, we affirm 

Fountain’s conviction.5

B. The District Court’s Guidelines 

Determinations 

Fountain, Ishmael, and Johnson each challenge the 

District Court’s calculation of the applicable Guidelines range 

for their sentence. Where an objection is preserved at 

sentencing, we exercise plenary review of a district court’s 

interpretation of the Guidelines but review its factual findings 

for clear error. United States v. Grier, 475 F.3d 556, 570 (3d 

Cir. 2007) (en banc). If the facts underlying a Guidelines 

determination are not in dispute, “but the issue is whether the 

agreed-upon set of facts fit within the enhancement 

requirements,” we review the District Court’s application of 

the enhancement for clear error. United States v. Fish, 731 

F.3d 277, 279 (3d Cir. 2013). Finally, where an objection is 

not preserved at sentencing, we review that challenge for 

plain error. United States v. Couch, 291 F.3d 251, 252-53 (3d 

Cir. 2002); United States v. Knight, 266 F.3d 203, 206 (3d 

Cir. 2001). 

1. Sophisticated Means Enhancements

 

5 Because we conclude the evidence supports 

Fountain’s conviction for the completed offense, we need not 

consider the Government’s alternative contention that the 

evidence supported a conviction of attempted extortion.
14

a. Fountain and Johnson

Fountain and Johnson both argue that the District 

Court erred in applying a two-level enhancement for 

sophisticated means to their sentences under U.S.S.G. § 

2B1.1 because there was nothing particularly sophisticated 

about the means employed in their schemes. Their arguments 

are unpersuasive. 

While the Application Notes to § 2B1.1 suggest that 

the use of “fictitious entities, corporate shells, or offshore 

financial accounts” would constitute sophisticated means,6an 

offense can easily warrant the sophisticated means 

enhancement absent the use of those tactics. See United 

States v. Jennings, 711 F.3d 1144, 1147 (9th Cir. 2013) 

 

6 See U.S.S.G. § 2B1.1 cmt. n.9(B) (“‘[S]ophisticated 

means’ means especially complex or especially intricate 

offense conduct pertaining to the execution or concealment of 

an offense. For example, in a telemarketing scheme, locating 

the main office of the scheme in one jurisdiction but locating 

soliciting operations in another jurisdiction ordinarily 

indicates sophisticated means. Conduct such as hiding assets 

or transactions, or both, through the use of fictitious entities, 

corporate shells, or offshore financial accounts also ordinarily 

indicates sophisticated means.”); id. § 2T1.1 cmt. n.5 

(explaining similar factors for applying the sophisticated 

means enhancement for tax fraud offenses); see also id. § 

2T1.1 cmt. background (“Although tax offenses always 

involve some planning, unusually sophisticated efforts to 

conceal the offense decrease the likelihood of detection and 

therefore warrant an additional sanction for deterrence 

purposes.”).
15

(upholding a sophisticated means enhancement in the absence 

of corporate shells or offshore accounts, and explaining that 

“the list contained in the application note is not exhaustive,” 

and that “the enhancement properly applies to conduct less 

sophisticated than the list articulated in the application note”); 

see also Fish, 731 F.3d at 280 (holding that the existence of 

one of the facts listed in the application note is not necessary 

to a determination that an offense employed sophisticated 

means). 

Determining whether a defendant employed 

sophisticated means can involve considering factors like the 

duration of a scheme, the number of participants, the use of 

multiple accounts, and efforts to avoid detection. See Fish, 

731 F.3d at 280. Ultimately, a sophisticated means 

enhancement is appropriate where a defendant’s conduct 

“shows a greater level of planning or concealment than a 

typical fraud of its kind.” United States v. Fumo, 655 F.3d 

288, 315 (3d Cir. 2011) (quoting United States v. Landwer, 

640 F.3d 769, 771 (7th Cir. 2011)) (internal quotation mark 

omitted). 

The enhancement was clearly appropriate here. 

Fountain identified IRS programs that would pay substantial 

sums and then designed a scheme to maximize her payout 

while avoiding detection. In finding that she employed 

sophisticated means, the District Court pointed specifically to 

Fountain’s use of inside knowledge of the IRS’s enforcement 

thresholds, including that TETR claims under $1,500 would 

not be flagged for review. Fountain took steps to conceal her 

identity even from others involved in the scheme, employing 

third parties to recruit claimants and collect their fees so she 

could avoid any contact with them. Additionally, Fountain 

developed an enforcement mechanism to ensure her fees were 
16

paid: submitting amended returns that tipped off the IRS 

when claimants were reluctant to pay her. Fountain’s choice 

to use the IRS as her enforcer further decreased the likelihood 

that claimants would report her, as they would fear 

prosecution themselves. In short, Fountain endowed the 

scheme with a sophisticated knowledge of IRS practices—

including some not known to the public—and an elaborate 

plan for manipulating hundreds of people. 

For his part, Johnson engaged recruiters to collect 

additional claimants and instituted additional practices to 

avoid detection. He routed refunds into accounts that would 

not raise alarms, like the business bank accounts of various 

relatives and the estate and personal accounts of his recentlydeceased grandmother, and he used different business and 

personal addresses for the delivery and cashing of checks. 

Moreover, he electronically filed claims in such a manner that 

they could be traced only to a third party’s wireless network, 

rather than his own. 

Overall, the sophisticated means employed by 

Fountain, Johnson, and their co-conspirators (including 

Ishmael) allowed the scheme to grow to an extraordinary size 

while remaining undetected for years. Their cunning and 

willingness to abuse Fountain’s position with the IRS clearly 

set this scheme apart from a “typical fraud of its kind.” See 

Fumo, 655 F.3d at 315. Their conduct led the District Judge 

to remark, at Johnson’s sentencing, that “this was as 

sophisticated a tax fraud scheme as this Judge has seen in 22 

years.” Gov’t’s Supplemental App. 74. In light of these 

findings, the application of sophisticated means 

enhancements to Fountain and Ishmael was not clear error.

b. Ishmael
17

In the District Court, Ishmael challenged the 

sophisticated means enhancement to his sentence on the same 

grounds that Fountain and Johnson did: that the scheme, as a 

whole, did not involve sophisticated means. Ishmael does not 

raise that argument on appeal. Instead, he argues that the 

District Court committed procedural error under U.S.S.G. § 

1B1.3(a)(1)(B). He points to the District Court’s statement 

during his sentencing hearing that the fraud scheme “was only 

possible because of the sophisticated means that, to be sure, 

were made possible by Ms. Fountain, not Mr. Ishmael.” 

Ishmael’s App. 151. Ishmael contends that this statement 

indicates that the District Court attributed Fountain’s

sophisticated means to Ishmael and that it erred by doing so 

without finding that Fountain’s use of those means was 

reasonably foreseeable to Ishmael. He asks us to remand for 

resentencing so the District Court can make this finding.7

Ishmael argues that our decision in United States v. 

Collado, 975 F.2d 985 (3d Cir. 1992), compels us to remand 

for the District Court to make a finding of reasonable 

 

7 Because Ishmael did not raise this objection in the 

District Court, the Government argues that we should apply 

plain error review. Ishmael counters that our decision in 

United States v. Flores-Mejia, 759 F.3d 253 (3d Cir. 2014) 

(en banc), does not apply retroactively, and, accordingly, that

we should review for an abuse of discretion. We conclude 

that Ishmael’s challenge fails even if we do review for an 

abuse of discretion, and we thus need not decide whether his 

challenge should be subject to plain error review.
18

foreseeability.8 To the contrary, Collado indicates that we 

may conduct our own review of the record to see if it supports 

a finding of reasonable foreseeability. See Collado, 975 F.2d 

at 997. If we are convinced that the attribution of Fountain’s 

sophisticated means is firmly supported by the record, there is 

“no reason to remand this case only to have the district court 

reach the same sentencing decision.” United States v. Duliga, 

204 F.3d 97, 101 n.2 (3d Cir. 2000). 

Here, it is clear that the sophisticated means Fountain 

employed were reasonably foreseeable to Ishmael. Fountain 

and Ishmael lived together and had children together. The 

evidence established that Ishmael knew about the IRS’s 

$1,500 threshold for flagging TETR claims for review, and 

that he knew that Fountain would reverse claimants’ refunds 

if they did not pay her fee. Moreover, the District Court 

found that Ishmael was “the engine that drove [the] 

conspiracy from one that might have involved a handful of 

phony tax refunds to one that involved hundreds at a cost of 

over $2 million to the United States treasury,” and that 

Ishmael’s leadership “succeeded in spreading [the] scheme 

like wild fire.” Ishmael’s App. 163. Thus, we are convinced 

that a finding of reasonable foreseeability is firmly supported 

 

8 Although Collado dealt with the inclusion of drug 

quantities dealt by co-conspirators in a defendant’s base 

offense level calculation, also known as “accomplice 

attribution,” rather than a sophisticated means enhancement, 

the same “reasonably foreseeable” standard applies to each 

inquiry, as both are guided by § 1B1.3. See United States v. 

Anobah, 734 F.3d 733, 739 (7th Cir. 2013); United States v. 

Crosgrove, 637 F.3d 646, 666 (6th Cir. 2011).
19

by the record, and we affirm the District Court’s application 

of the sophisticated means enhancement to Ishmael.

2. Fountain’s Enhancement for Using a 

Minor

Fountain argues that the District Court erred in 

applying a two-level enhancement for using a minor to 

commit her offenses under U.S.S.G. § 3B1.4. The evidence 

established, however, that Fountain used her minor daughter 

to collect payments that had been given to Witherspoon on at 

least one occasion. Fountain counters that her use of her 

daughter cannot support the enhancement because by the time

she had her daughter collect payments, the crime was 

complete, as Fountain had already filed the false returns.

9

 

But the focus of a court’s inquiry under § 3B1.4 “is on the 

actions and intent of the defendant. Whether the minor 

himself engaged in any criminal actions, whether the minor 

intended to assist in the adult’s criminal activity, or whether 

the minor even knew that the adult was involved in criminal 

activity are factors irrelevant to application of the § 3B1.4 

enhancement.” United States v. Gaskin, 364 F.3d 438, 464-

65 (2d Cir. 2004) (collecting cases). Moreover, the crime

continued after the filing of returns, as collecting payment, 

which occurred after filing, was the whole point of the 

scheme. Further, the evidence indicates that Fountain and her 

co-conspirators continued filing false returns after Fountain 

 

9 The Government notes that Fountain did not raise 

this argument in the District Court, and argues that it should 

be reviewed for plain error as a result. Because we conclude 

that the District Court committed no error in applying the 

enhancement, we need not decide which standard applies.
20

had her daughter pick up payments from Witherspoon. Thus, 

the imposition of this enhancement was not clear error.

3. Johnson’s Leadership Role 

Enhancement

Johnson argues that the District Court erred in 

applying a four-level enhancement under U.S.S.G. § 3B1.1(a) 

because the record lacks evidence that Johnson was a leader 

or organizer. To support this enhancement, the evidence must 

show that Johnson exercised some degree of control over at 

least one other person involved in the offense. United States 

v. Helbling, 209 F.3d 226, 243-44 (3d Cir. 2000). The 

evidence indicated that Johnson recruited his father and a 

friend named Andre Bruce to participate in the AOTC and 

FTHBC schemes, and that Johnson’s father eventually 

became a recruiter for Johnson and would withdraw money 

for him after the IRS issued refunds. Johnson also directed

Bruce to destroy evidence while Johnson was on pre-trial 

release. Thus, the District Court did not clearly err in 

imposing this enhancement.

4. Johnson’s Loss Calculation

Johnson also argues that in calculating the loss 

attributable to him, the District Court improperly included 

losses that overstate his criminal conduct and were not 

reasonably foreseeable to him. It is well-settled that a 

sentencing court need only make a “reasonable estimate” of 

loss that is based on the available evidence in the record, 

United States v. Tupone, 442 F.3d 145, 156 (3d Cir. 2006), 

and it is clear the District Court did so here. 
21

Johnson’s arguments fail upon a review of the 

Government’s loss methodology, which the District Court 

approved when it adopted the most conservative of the 

Government’s proposed loss calculations. Johnson argues 

that the District Court erred by attributing all fraudulent tax 

returns to him, but the District Court did not do so. In fact, 

the Government did not ask the District Judge to do so. 

Along the same lines, Johnson argues he was improperly held 

responsible for returns filed from Fountain’s IRS computer

and for claims filed before he joined the conspiracy or after 

he left. The Government, however, excluded those amounts 

from its calculations. Further, Johnson argues that Bruce, not 

he, was responsible for returns filed from Bruce’s IP address.

But the District Court and the jury already rejected this 

argument based on Bruce’s trial testimony. Thus, attributing 

those amounts to Johnson at sentencing was not clear error. 

Finally, Johnson argues that the District Court 

improperly attributed to Johnson losses from the TETR and 

FTHBC conspiracies that were not reasonably foreseeable to 

him. In light of Johnson’s role in recruiting claimants and 

allowing the use of his address and bank account in the TETR 

scheme and his leadership in the FTHBC scheme, the District 

Judge’s inclusion of those amounts as reasonably foreseeable 

losses was not clear error.

In sum, the District Court arrived at a reasonable 

estimate of the loss amount attributable to Johnson by 

adopting the Government’s conservative calculation. As 

such, we will not disturb the District Court’s findings on 

appeal.

C. Reasonableness of Fountain and Johnson’s 

Sentences
22

Fountain and Johnson both argue that their sentences 

were procedurally and substantively unreasonable. We 

review a criminal sentence for an abuse of discretion and 

proceed in two stages. United States v. Wright, 642 F.3d 148, 

152 (3d Cir. 2011). First, we review for procedural error, 

including failure to give meaningful consideration to a 

defendant’s arguments or the factors listed in 18 U.S.C. § 

3553(a). Id. Second, if there is no such error, we review for 

substantive reasonableness, and “we will affirm [the

sentence] unless no reasonable sentencing court would have 

imposed the same sentence on that particular defendant for 

the reasons the district court provided.” Id. (alteration in 

original) (quoting United States v. Tomko, 562 F.3d 558, 568 

(3d Cir. 2009) (en banc)) (internal quotation marks omitted). 

Sentences that fall within the applicable Guidelines range are 

more likely to be reasonable than those that do not. United 

States v. Woronowicz, 744 F.3d 848, 852 (3d Cir. 2014).

1. Fountain’s Sentence

Fountain contends the District Court committed 

procedural error by placing undue weight on the Guidelines 

and on deterrence interests while minimizing the offenderspecific considerations in this case, including that she was a 

first-time offender and the sole caregiver of four children, one 

of whom received a terminal medical diagnosis during the 

course of this prosecution. But the District Court gave 

adequate consideration to all of these factors, finding they 

were not “sufficiently extraordinary” to warrant a variance, 

and noted that they did not deter Fountain from her 

“egregious and protracted criminality.” Fountain’s App. 

1008-09.
23

Fountain’s argument ultimately amounts to a challenge 

of substantive unreasonableness, as a complaint that a district 

court’s choice of sentence did not afford certain factors 

enough weight “is a substantive complaint, not a procedural 

one.” United States v. Merced, 603 F.3d 203, 217 (3d Cir. 

2010); see also United States v. Bungar, 478 F.3d 540, 546 

(3d Cir. 2007) (“Nor do we find that a district court’s failure 

to give mitigating factors the weight a defendant contends 

they deserve renders the sentence unreasonable.”). As such, 

notwithstanding the tragic circumstances facing Fountain’s 

family, Fountain cannot meet her heavy burden of showing 

that a sentence within the applicable Guidelines range was 

substantively unreasonable in light of the sophisticated nature 

of her crimes, her lack of remorse, her abuse of her position 

with the IRS, and the need to deter other public employees

from taking advantage of sensitive information.

2. Johnson’s Sentence

Johnson argues the District Court committed 

procedural error by cutting off his counsel’s arguments at his 

sentencing hearing. But the District Judge merely declined to 

allow Johnson’s attorney to cite an additional case in support 

of his sophisticated means objection. The District Judge only 

did so, moreover, after noting that all of Johnson’s objections 

had been briefed ad nauseam. Thus, we find no abuse of 

discretion in that decision. Johnson also contends the District 

Court erred in treating a sentence within the applicable 

Guidelines range as presumptively correct, and by failing to 

address some of Johnson’s arguments at sentencing. This 

contention, however, ignores the protracted exchange 

between the District Judge and Johnson’s counsel on the 

question of whether to grant a departure or variance. The 

District Court also heard allocution from Johnson himself. 
24

On the whole, Johnson cannot show the District Court failed 

to give meaningful consideration to any of his arguments or 

any sentencing factor, nor can he show any other procedural 

error. 

Finally, given the District Court’s findings that 

Johnson grew from a relatively small player in the TETR 

scheme to a major player in the conspiracy associated with 

the FTHBC and the AOTC, that he continued to commit 

offenses while he was on pretrial release, and that he failed to 

appreciate the magnitude of his crimes, Johnson cannot show 

that a sentence within the applicable Guidelines range was 

substantively unreasonable.

III. Conclusion

For the reasons stated above, we affirm the judgment 

of the District Court.