FILED

NOT FOR PUBLICATION

FEB 26 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-10360

Plaintiff-Appellee, D.C. No. 1:14-cr-00217-DAD-BAM-1 v.

KIMBERLY ENGLISH, AKA Kimberly MEMORANDUM* Brown-English,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding

Submitted February 16, 2018** San Francisco, California

Before: BEA and N.R. SMITH, Circuit Judges, and LASNIK,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. Kimberly English appeals the sentence imposed following her jury

conviction for two counts of filing a fraudulent tax return by an employee of the

United States, and four counts of making an opportunity for a person to defraud the

United States, arising out of her preparation and filing of fraudulent tax returns on

behalf of herself and others. 26 U.S.C. § 7214(a)(7), (a)(5). English argues that

the district court abused its discretion by imposing a two-level adjustment for her

use of a “special skill” pursuant to U.S. Sentencing Guidelines § 3B1.3. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

First, the district court identified the correct legal standard when it selected

and interpreted U.S.S.G. § 3B1.3. The court found that English had “specialized

training” that was “not possessed by members of the general public.” These are

nearly exact quotes from § 3B1.3 and application note 4. See U.S.S.G. § 3B1.3

(“If the defendant . . . used a special skill, in a manner that significantly facilitated

the commission or concealment of the offense, increase by 2 levels.”); U.S.S.G. §

3B1.3 cmt. n.4 (“‘Special skill’ refers to a skill not possessed by members of the

general public and usually requiring substantial education, training, or licensing.”).

Second, English’s many years as an Internal Revenue Service (“IRS”)

employee and her specialized training were sufficient to support the application of

the special skill enhancement. In determining whether a skill constitutes a “special

2 skill” within the meaning of the Guidelines, we consider: (1) “whether the skill is

possessed by members of the general public,” and (2) “whether the skill requires

substantial training, education or licensing, and is analogous to the skills described

in the application note.” United States v. Corona-Verbera, 509 F.3d 1105, 1120

(9th Cir. 2007).

As for the first step, the preparation of other’s returns is not an activity in

which the general public typically engages. It is a skill which is often exercised by

accountants, a group of individuals expressly identified in the Guidelines as

holding “special skills.” U.S.S.G. § 3B1.3 cmt. n.4. English prepared tax returns

for at least 15 other individuals. From this, the district court could infer her skill at

preparing tax returns was not a skill possessed by the general public. Last, English

charged money for her services, from which the district court could infer that she

was selling a service not possessed by members of the general public.

As for the second step, English became familiar with certain aspects of tax

law during her employment by the IRS. By early 2012, she knew the tests that the

IRS used to determine whether a taxpayer can properly claim head of household

filing status, dependents, child tax credit, and additional child tax credit. Upon

being promoted to a Correspondence Exam Technician (“CET”) in 2012, English

participated in an eight-week training course, which included 112 hours of

3 hands-on lab training. English gained additional familiarity with exemptions and

other areas of tax law during her “on-the-job instruction” period when she was

assigned a coach to oversee her work. As a CET, English was responsible for

fielding and answering questions from taxpayers.

Furthermore, the knowledge, training, and experience that English acquired

during her employment by the IRS facilitated her preparation and filing of the

charged returns. See U.S.S.G. § 3B1.3 (special skill enhancement appropriate

where the defendant “used a special skill[] in a manner that significantly facilitated

the commission or concealment of the offense”). By the end of 2012, English had

received specialized training regarding the very deductions, exemptions, and

credits that were fraudulent in the 2012 charged returns, which she filed in the

spring of 2013.

AFFIRMED.

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