Submitted: March 11, 2019
from United States District Court for the District of
Minnesota - St. Paul.
GRUENDER, BENTON, and GRASZ, Circuit Judges.
Benton, Circuit Judge.
convicted Hassan Osman of conspiring to file false tax
returns in violation of 18 U.S.C. § 371, aiding and
assisting in the preparation of false tax returns in
violation of 26 U.S.C. § 7206(2) and 18 U.S.C. § 2,
and failing to appear at a pretrial conference in violation
of 18 U.S.C. § 3146(a)(1). The district
court sentenced him to 108 months'
imprisonment and three years' supervised release. He
appeals the sentence, challenging the application of a
three-level role enhancement under United States Sentencing
Guideline § 3B1.1(b), and the restriction on his
computer and internet use during supervised release. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.
2008 to 2011, Osman operated a scheme to prepare false tax
returns with Christine Clausen, Christiana Ocholi, and Mo
William. They filed tax returns in the names of themselves
and others. The false tax returns sought over $965, 000 from
the Internal Revenue Service (IRS). The IRS paid about $347,
000 in refunds, mostly in the form of prepaid debit cards
sent to Osman and William. The conspirators initially used
tax preparers to file the false returns. In March 2009, they
switched to tax software, filing the returns themselves. The
conspirators filed many returns from the Internet Protocol
(IP) address of Osman's business, Hot Wireless.
convicted Osman on 15 counts: one count of conspiracy to
defraud the United States in violation of 18 U.S.C. §
371; thirteen counts of aiding and assisting the preparation
of a false tax return in violation of 26 U.S.C. §
7206(2) and 18 U.S.C. § 2; and one count of failure to
appear at a pretrial conference in violation of 18 U.S.C.
§ 3146(a)(1). The district court imposed a three-level
enhancement under U.S.S.G. § 3B1.1(b) for managing and
supervising a criminal operation with five or more
participants. The court also imposed a special condition
restricting Osman's computer use during supervised
Defendant shall not possess or use a computer or have access
to any online service without the prior approval of the U.S.
Probation and Pretrial Services Office. Defendant's
cooperation shall include, but is not limited to, allowing
installation of a computer and Internet monitoring program
and/or identifying computer systems, Internet-capable
devices, and similar memory and electronic devices to which
he has access. Monitoring may include random examinations of
computer systems along with Internet, electronic, and media
storage devices under his control. The computer system or
devices may be removed for a more thorough examination, if
necessary. Defendant shall contribute to the costs of such
monitoring services, based on your ability to pay, as deemed
appropriate by the U.S. Probation and Pretrial Services
appeal, Osman objects to the three-level enhancement and the
challenges the district court's factual finding that he
was a manager or supervisor of the criminal activity, and
thus subject to a three-level sentencing enhancement under
U.S.S.G. § 3B1.1(b). This court reviews the district
court's factual findings for clear error. United
States v. Reid, 827 F.3d 797, 800-01 (8th Cir. 2016).
See United States v. Whirlwind Soldier, 499 F.3d
862, 872 (8th Cir. 2007) (noting that "the
defendant's role in the offense" is a finding of
Guideline § 3B1.1(b) requires two elements for a
three-level enhancement. First, the defendant must act as
"manager or supervisor" of an offense. U.S.S.G.
§ 3B1.1(b). Second, the criminal activity must involve
"five or more participants" or be "otherwise
extensive." Id. Osman does not challenge the
qualify for an adjustment under [§ 3B1.1(b)], the
defendant must have been the organizer, leader, manager, or
supervisor of one or more other participants."
United States v. Hammerschmidt, 881 F.3d 633, 637
(8th Cir. 2018), quoting U.S.S.G. § 3B1.1 cmt.
n.2. The evidence showed Osman recruited the majority of
filing conspirators and collected their personal information.
He then oversaw the status of the tax returns, obtaining
corrected information where necessary. ...