Alizа Jones pled guilty to count I of a nine-count superseding indictment that charged her and co-defendant Anthony D. Scott with executing a tax fraud scheme in violation of 26 U.S.C. § 7212(a) & 18 U.S.C. § 2. In imposing a prison sentence of 20 months, the district court refused to grant Jones a two-point reduction to her base offense level for accеptance of responsibility under section 3El.l(a) of the Sentencing Guidelines. Jones contends in this appeal that the district court’s finding is clearly erroneous, but we disagree and thus affirm her sentence.
I.
The superseding indictment charged Jones and Scott with managing a tax fraud scheme that involved the filing of false and fraudulent tax rеturns through the Internal Revenue Service’s (IRS’s) Electronic Filing Program (“EFP”). 1 The indictment charged that Jones and Scott, after collecting information from individuals we will call “runners,” prepared W-2 forms, tax returns, and other documents in a runner’s name. Utilizing false employment, income, and withholding information, these documents claimed that the runner was entitled to a tax refund. Jones and Scott then instructed the runner to utilize a tax filing service to submit the fictitious information to the IRS under the EFP.
Jones entered into a plea agreement with the government in which she admitted devising and conducting this scheme between approximately March 1992 and February 1993. Jones also admitted, as charged in count I of the superseding indictment, that at least ten fraudulent tax returns were filed electronically during the relevant time period as part of this scheme. Two of the returns were submitted in Jones’ own name for the 1990 and 1991 tax years, a 1991 return was submitted in Scott’s name, and the remaining seven returns were for the 1991 tax year and were submitted in the names of seven runners, including Jones’ son. Jones agreed in the plea agreement that the refunds claimed in these ten returns totaled approximately $25,854.00, and that the payouts on these claims by еither the IRS or banks in the form of RALs totaled $20,754.00.
The plea agreement also included preliminary offense level calculations under the Sentencing Guidelines. With respect to a two-point reduction for acceptance of responsibility, the government agreed as follows in ¶ 6(d):
The defendant has clearly demоnstrated a recognition and affirmative acceptance of personal responsibility for her criminal conduct. If the government does not receive additional evidence in conflict with this provision, and if the defendant continues to accept responsibility for her actions within the meaning of Guideline § 3E1.1, a two-level reduction in the offense level is appropriate.
Jones entered her plea of guilty pursuant to the plea agreement at a hearing before the district court on October 4, 1993. In the course of that hearing and while Jones was under oath, the district court asked whether she disagreed with any part оf the government’s explanation of the evidence it would have offered at her trial. Jones indicated that she “had nothing to do with” the false tax materials submitted by two of the individuals listed in the superseding indictment and in the plea agreement. (Oct. 4, 1993 Tr. at 26.) The court then asked whether individuals other than those named in the indictment and plea agreement had filed false returns pursuant to the scheme, and Jones indicated that there had been others. (Id.) The court explained that in connection with her pledge of cooperation in the plea agreement, it expected Jones to fully cooperate with the government in naming these other individuals. (Id.) The court indicated that it would take the extent of Jones’ cooperation into account at her sentencing. (Id.)
The United States Probation Office prepared a presentence report (“PSR”) prior to Jones’ sentencing. The probation officer recommended that Jones be denied thе two-level adjustment for acceptance of responsibility, reporting that in her meetings with the officer, Jones had acknowledged only a portion of the conduct to which she had pled guilty. The probation officer explained that in the course of their discussions, Jones had accepted responsibility fоr only two of the ten fraudulent tax returns, and the officer further noted that Jones had not abided the court’s admonition to cooperate further by naming other runners. Indeed, the PSR stated that three separate appointments had been scheduled between Jones and thé Assistant United States Attorney for this purpose but that Jones had failed to appear for each appointment.
The district court held a sentencing hearing on January 24, 1994, at which two issues were disputed — whether Jones had been a manager or supervisor under Guidelines sec
The court then turned to whether Jones had accepted responsibility under section 3El.l(a), explaining initially that its conclusiоn on the manager or supervisor enhancement suggested that Jones had not in fact accepted responsibility for her offense. (Id. at 11-12.) Yet the court then engaged Jones in a colloquy to resolve the discrepancy between her plea hearing statements, where she had disclaimed involvement in only two of the ten tax returns, and her subsequent statements to the probation officer, where she had admitted involvement in only two of the ten returns. Jones explained to the court that she had written only two of the returns in her own hand but that she had been present during the preparation of some of the other returns. (Id. at 12-13.) She also insisted that shе had never instructed anyone else on how to prepare a fraudulent return and that she had given instructions to only one of the runners as to how to present information to H & R Block for electronic filing. (Id. at 13.)
In its proffer, however, the government indicated that a handwriting and fingerprint analysis showed that Jones had herself written at least one additional return. A further return had been written by Scott but filed in the name of Jones’ son. Finally, the government explained that several of the other runners would testify, and previously had indicated to the court in the course of plea hearings, that Jones had on occasion accompanied them to the tax filing service and had instructed them in thе filing of returns. Some of the runners also would attest that Jones was present at the currency exchange when a loan check was cashed and that she divided the money, giving half to the runner and keeping the remainder for herself and Scott. Jones denied these acts. (See id. at 14-16.) On the basis of the PSR, the government’s proffered evidеnce, and Jones’ own statements at the sentencing hearing, the district court determined that Jones had not accepted responsibility for her involvement in this criminal endeavor. (Id. at 16.) Absent the acceptance of responsibility reduction, then, Jones had a base offense level of 15 and thus a Guidelines range of 18 to 24 months. The district court sentenced Jones to a 20-month term of imprisonment.
II.
Guidelines section 3El.l(a) authorizes a two-level reduction in Jones’ base offense level if she “clearly demonstrate[d] acceptance of responsibility for [her] offense.” U.S.S.G. § 3El.l(a);
see also United States v. Dvorak,
It is clear from the transcript of Jones’ sentencing hearing that despite her earlier guilty plea, the district court did not believe she was being entirely truthful about the role she plаyed in the tax fraud scheme. For example, the government proffered evidence to show that more than only two tax returns actually had been drafted by Jones, that she in fact had instructed certain runners as to how to submit their returns, and that she actually had divided the proceeds of certain loan checks. These wеre all integral parts of the scheme charged in count I of the indictment, to which Jones had admitted her guilt at the plea hearing. That plea did not automatically entitle Jones to the two-level reduction for acceptance of responsibility, however
(Panadero,
Jones nonetheless launches a two-pr.onged attack on the district court’s finding. She first contends that despite discrepancies between thе government’s evidence and her own statements at the sentencing hearing, she did on three occasions accept responsibility for the conduct charged in count I. Yet, in the same way that the plea itself does not automatically entitle Jones to the two-level reduction, neither do bare statements to the district court at the sentencing hearing to the effect that she “accept[s] responsibility for [her] wrongdoing.” (Jan. 24, 1994 Tr. at 22.)
See Dvorak,
Finding no clear error, we AffiRM Jones’ sentence.
Notes
. Under this program, a taxpayer does not file a traditional tax return but instead submits a completed Form 8453 to a participating tax filing service. That form requires the taxpayer to provide all the information necessary to preparе a United States Individual Income Tax Form 1040, 1040A, or 1040EZ. The filing service then electronically transmits the information on the form to an IRS office. Because the program accelerates the processing of a return, it is used most frequently by taxpayers entitled to a refund.
. That section provides for a three-level increase to a defendant's base offense level "[i]f the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive.” U.S.S.G. § 3Bl.l(b).
. In
Hammick,
we explained that under the current version of section 3El.l(a), a defendant may invoke her "right to remain silent concerning relevant conduct outside the scope of [the] offense without compromising [her] eligibility for a two-level reduction for acceptance of responsibility."