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United States v. Osman

United States Court of Appeals, Eighth Circuit

July 11, 2019

United States of America Plaintiff- Appellee
v.
Hassan Osman Defendant-Appellant

          Submitted: March 11, 2019

          Appeal from United States District Court for the District of Minnesota - St. Paul.

          Before GRUENDER, BENTON, and GRASZ, Circuit Judges.

          Benton, Circuit Judge.

         A jury 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[1] 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.

         I.

         From 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.

         A jury 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 release:

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 Office.

         On appeal, Osman objects to the three-level enhancement and the computer restriction.

         II.

         Osman 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 fact).

         Sentencing 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 second element.

         "To 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. ยง 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. ...


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