Case: 18-12336 Date Filed: 09/03/2019 Page: 1 of 20 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 18-12336 Non-Argument Calendar ________________________ D.C. Docket No. 9:17-cr-80187-RLR-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MANUEL ANTONIO SEVERINO, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (September 3, 2019) Before MARTIN, NEWSOM, and GRANT, Circuit Judges. PER CURIAM: Case: 18-12336 Date Filed: 09/03/2019 Page: 2 of 20 Manuel Antonio Severino appeals his convictions and 65-month sentence for aiding and assisting in the preparation of false tax returns, wire fraud, and aggravated identity theft. The district court did not abuse its discretion in declining to give the additional willfulness instruction requested by Severino because that instruction was subsumed by the offense instruction given. In addition, the evidence was sufficient to support Severino’s convictions, and the court did not abuse its discretion in weighing the 18 U.S.C. § 3553(a) factors or rely on any improper factor in imposing sentence. We therefore affirm. I. Severino proceeded to a jury trial on all 17 counts of a superseding indictment charging him with: 13 counts of 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 (Counts 1–13); 2 counts of wire fraud, in violation of 18 U.S.C. §§ 1343 and 2 (Counts 14– 15); and 2 counts of aggravated identity theft against “J.LM.” and “K.M” (later identified as Kenneth Mestre), in violation of 18 U.S.C. §§ 1028A(a)(1) and 2, (Counts 16–17). At trial, the government called an expert witness and Internal Revenue Service agent who testified, in relevant part, that the American Opportunity Credit is a tax credit that applies to qualified post-secondary education expenses. The agent explained that a Form 1098-T issued by the educational institution is used to 2 Case: 18-12336 Date Filed: 09/03/2019 Page: 3 of 20 verify the credit and prevent fraud. He further stated that in claiming the American Opportunity Credit, the education expenses had to be paid in the same tax year for which the credit was claimed and that a Form 8863 was supposed to be attached to the tax return. The Form 8863 required the name of the student and the educational institution that they attended, as well as the amount of expenses based on the 1098-T. The government later called an investigative analyst for the IRS, who testified that 452 tax returns, unsigned by any preparer, had come from two IP addresses linked to Severino; later testimony tied the IPs to Severino’s residential address. Of the 452 unsigned returns, 388 claimed the American Opportunity Credit, but only 14 had a corresponding 1098-T. The analyst stated that this was much higher than the ordinary proportion of returns claiming the credit. In addition, the government offered testimony from four individuals whose tax returns were the subject of the § 7206(2) counts; each testified that Severino had prepared the returns on their behalf. The ...
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