United States v. Herve Wilmore, JR., 11th Cir. (2015)

Case: 14-13194
Date Filed: 08/18/2015
Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13194
Non-Argument Calendar
________________________
D.C. Docket No. 0:13-cr-60029-RNS-2
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus
HERVE WILMORE, JR.,
DELVIN JEAN BAPTISTE,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(August 18, 2015)
Before HULL, JULIE CARNES and BLACK, Circuit Judges.
PER CURIAM:
Case: 14-13194
Page: 2 of 7
Herve Wilmore, Jr. appeals his convictions and total sentence of 240
months imprisonment. He argues (1) sufficient evidence does not support his
convictions for conspiracy under 18 U.S.C. 371, wire fraud under 18 U.S.C.
1343, and aggravated identity theft under 18 U.S.C. 1028A(a)(1); (2) the
district court erred in declining to give an aiding and abetting jury instruction; (3)
the district court erred in enhancing his sentence for the loss amount, number of
victims, leadership, and the use of sophisticated means; and (4) his sentence was
substantively unreasonable.1 Devin Jean Baptiste appeals his convictions for
conspiracy, wire fraud, and aggravated identity theft, arguing sufficient evidence
did not support the convictions. As the parties are familiar with the facts of this
case, we will not recount them in detail. We include only those facts necessary to
the discussion of each issue. Upon review, 2 we affirm.
Wilmores brief states in a heading and in the conclusion that the district court erred by
imposing restitution of $20,246,577, but Wilmore makes no arguments in support of that
statement. As such, Wilmore has abandoned any restitution argument. See United States v.
Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) ([A] party seeking to raise a claim or issue
on appeal must plainly and prominent so indicate.).
2
We review sufficiency of the evidence de novo, viewing the evidence in the light most
favorable to the government and drawing all reasonable inferences and credibility choices in
favor of the jurys verdict. United States v. Ramirez, 426 F.3d 1344, 1351 (11th Cir. 2005). We
review findings of fact for clear error and application of the sentencing guidelines de novo.
United States v. Gupta, 572 F.3d 878, 887 (11th Cir. 2009). We review the substantive
reasonableness of a sentence for abuse of discretion. United States v. Dougherty, 754 F.3d 1353,
1361 (11th Cir. 2014), cert. denied, 135 S. Ct. 1186 (2015). Where an argument was not raised
before the district court, we will not correct the alleged error unless (1) there is error; (2) that is
plain; (3) that affects substantial rights; and (4) that seriously affects the fairness, integrity, or
public reputation of judicial proceedings. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th
Cir. 2005).
2
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I. DISCUSSION
A. Sufficiency of the Evidence
Sufficient evidence supported Wilmores convictions for conspiracy, wire
fraud, and aggravated identity theft. The Government introduced sufficient
evidence that Wilmore was involved in a conspiracy to defraud the IRS, as it
showed Wilmore knowingly worked with others to prepare and cash fraudulent tax
refund checks. See United States v. Adkinson, 158 F.3d 1147, 1154 (11th Cir.
1998) (holding where the IRS is victim of fraud, the government must prove there
was an agreement whose purpose was to impede the IRS and each defendant
knowingly participated in that conspiracy). A reasonable jury could also
conclude Wilmore committed wire fraud and aggravated identity theft because the
fraudulently obtained refund checks were sent to addresses that he rented and used.
A jury could have concluded Wilmore knew he was using the identities of real
people because the scheme required the use of real identities. See United States v.
Gomez-Castro, 605 F.3d 1245, 1248 (11th Cir. 2010) (Both the circumstances in
which an offender obtained a victims identity and the offenders later misuse of
that identity can shed light on the offenders knowledge about that identity.). A
jury could find the IRS would have rejected the tax returns had Wilmore not used
real names and corresponding Social Security Numbers.
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Sufficient evidence also supported Baptistes convictions. The Government

introduced evidence that Baptiste frequented Lucky Star Check Cashing, cashed
illegitimate checks at Miami Gardens Check Cashing and Imperial Check Cashing,
established Royal Tax where he filed fraudulent tax returns, and was listed as the
preparer on Jacqueline Jenningss fraudulent tax returns. While Baptiste disputes
he was the person who actually submitted the fraudulent returns, as a member of a
conspiracy he can be liable even if he did not physically press the button
submitting the returns. See United States v. Mothersill, 87 F.3d 1214, 1218 (11th
Cir. 1996) (Each party to a continuing conspiracy may be vicariously liable for
substantive criminal offenses committed by a co-conspirator during the course and
in the furtherance of the conspiracy, notwithstanding the partys non-participation
in the offenses or lack of knowledge thereof.).
B. Jury Instructions
The district court did not err in declining to give an instruction on aiding and
abetting. We review Wilmores argument for plain error because, by his
admission, he did not object at trial. Wilmore has not cited any authority
establishing a district court errs by not providing an aiding and abetting instruction
when the government did not rely on that theory and when neither side requested
the instruction. As such, there cannot be plain error. See United States v.
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Page: 5 of 7
Humphrey, 164 F.3d 585, 588 (11th Cir. 1999) (stating that without binding
precedent directly resolving the claim, an alleged error cannot be plain).
C. Sentencing Enhancements
The district court did not clearly err in holding Wilmore responsible for the
actual loss of approximately $2.9 million3 and enhancing his base offense level by
18 levels. See U.S.S.G. 2B1.1(b)(1)(J). Because sufficient evidence supported
Wilmores conspiracy conviction, he was responsible at sentencing for the
reasonably foreseeable losses of the conspiracy. U.S.S.G. 1B1.3(a)(1)(B). The
$2.9 million amount was reasonably foreseeable given Wilmores heavy
involvement in the tax fraud conspiracy and his participation from nearly the
beginning of the scheme.
The district court did not clearly err in applying a 6-level enhancement for
defrauding 250 or more victims. See U.S.S.G. 2B1.1(b)(2)(C). The evidence
showed that, as part of the conspiracy, Wilmore purchased thousands of stolen
identities from co-conspirators and used those identities to file fraudulent tax
returns.
The district court did not clearly err in applying a 4-level enhancement based
on Wilmores leadership role in the conspiracy. See U.S.S.G. 3B1.1(a). The
While the district court overruled Wilmores objection to the fraud loss of $20 million,
the district court later, at the request of the Government, ultimately held Wilmore responsible
only for the actual loss of about $2.9 million.
5
Case: 14-13194
Page: 6 of 7
evidence at trial showed, inter alia, Wilmore served as the president of Worldwide
Financial Multiservices, set up the 4747 Hollywood Boulevard address where
many fraudulent refund checks were sent, and paid employees at the Kennedy
Plaza office to prepare fraudulent returns. While Wilmore was not the sole leader
of the conspiracy, the district court did not clearly err in finding that he was a
leader or organizer. See U.S.S.G. 3B1.1 comment. (n.4).
The district court also did not clearly err in imposing a two-level
enhancement for using sophisticated means. See U.S.S.G. 2B1.1(b)(10)(C). As
a member of the conspiracy, Wilmore concealed his criminal activities though
legitimate-sounding businesses, purchased names and Social Security numbers,
and filed fraudulent tax returns with the IRS. These activities were sufficiently
sophisticated.
D. Substantive Reasonableness of Sentence
The district court did not abuse its discretion in sentencing Wilmore to 240
months imprisonment. The district court considered the 18 U.S.C. 3553(a)
factors and sentenced Wilmore within the recalculated advisory range. That his
sentence exceeded that of the cooperating witnesses does not make his sentence
substantively unreasonable. See United States v. Docampo, 573 F.3d 1091, 1101
(11th Cir. 2009) ([D]efendants who cooperate with the government and enter a
Case: 14-13194
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written plea agreement are not similarly situated to a defendant who provides no
assistance to the government and proceeds to trial.).
II. CONCLUSION
In light of foregoing reasons, we affirm.
AFFIRMED.

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Case: 14-13194

Date Filed: 08/18/2015

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

Date Filed: 08/18/2015

Date Filed: 08/18/2015

Date Filed: 08/18/2015

Sufficient evidence also supported Baptistes convictions. The Government

Date Filed: 08/18/2015

Date Filed: 08/18/2015

Date Filed: 08/18/2015

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