USA v. Guy R. Paul

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13035
Non-Argument Calendar
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D.C. Docket No. 8:13-cr-00600-JDW-TGW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUY R. PAUL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(February 24, 2016)
Before HULL, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.
PER CURIAM:
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After a guilty plea, Guy R. Paul appeals his 36-month concurrent sentences
on his convictions for preparing false tax returns for others and filing a false
personal tax return, in violation of 26 U.S.C. § 7206(1) and (2). On appeal, Paul
argues that his sentences, which are 6 months above the upper end of his guidelines
range, are substantively unreasonable. Upon review of the record and
consideration of the parties’ briefs, we affirm.
I. FACTUAL BACKGROUND
A federal grand jury indicted Paul on 15 counts, including one count each of
wire fraud and aggravated identity theft, 11 counts of assisting in the preparation of
false tax returns for others, and two counts of filing false personal tax returns.
Under a written plea agreement, Paul agreed to plead guilty to two counts in
exchange for the remaining counts being dismissed: one count of assisting in the
preparation of a false tax return for another, in violation of 26 U.S.C. § 7206(2),
and one count of filing his own false personal tax return in 2007, in violation of 26
U.S.C. § 7206(1).
According to the presentence investigation report (“PSI”), Paul participated
in the preparation and presentation of 35 fraudulent tax returns from 2008 to 2013
through his tax preparation business, causing a $127,125.30 tax loss to the
government. As part of this scheme, Paul used the names and Social Security
numbers of at least 53 people, many of whom were young children, as dependents
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on others’ returns without the knowledge of these dependents’ rightful claimants.
Paul also did not report his business income on his personal income tax returns,
causing a $90,121 tax loss to the government.
The PSI calculated a base offense level of 18 under U.S.S.G. §§ 2T1.4(a)(1)
and 2T4.1(G). The PSI applied a 2-level increase under § 2T1.4(b)(1)(B) because
Paul was in the business of preparing tax returns, and a 3-level reduction under §
3E1.1(a)-(b) for acceptance of responsibility, yielding a total adjusted offense level
of 17. Because Paul had no prior criminal convictions, the PSI assigned him a
criminal history category of I. The PSI reported that Paul, a permanent United
States resident who emigrated from Haiti, was married with four children. Paul’s
youngest daughter suffered from febrile seizures and is on the autism spectrum.
Paul received a degree in Business Economics, with an Accounting minor, from
the University of South Florida.
Based on Paul’s total offense level of 17 and criminal history category of I,
the PSI recommended an advisory guidelines range of 24 to 30 months’
imprisonment. The maximum statutory penalty for each count was three years’
imprisonment.
Paul’s sentencing memorandum requested a below-guidelines sentence of
five months’ imprisonment due to his background, immigration status, and family
circumstances. The government’s sentencing memorandum requested a sentence
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at the high end of the guidelines range because of the identity theft underlying
several of the dismissed counts.
At sentencing, neither party made objections, and the district court adopted
the PSI’s guidelines calculations. Paul asked that the court impose a five-month
sentence as this would give him the “slightest hope” of not being deported, and he
urged the court to consider his family and especially his youngest daughter’s
medical condition.
The government sought a sentence at the high end of the guidelines range,
arguing that: (1) Paul’s criminal conduct was made more egregious by the fact that
he was a noncitizen defrauding the IRS and violating United States tax laws; (2)
Paul’s use of other persons’ identities on fraudulent tax returns was not reflected in
the guidelines range calculation; (3) Paul’s education and accounting degree
indicated that Paul knew what he was doing and knew the risks of his actions; and
(4) Paul prepared questionable tax returns for some of the individuals who wrote
letters to the court supporting him.
The district court sentenced Paul to 36 months’ imprisonment on each of the
two counts of conviction, to run concurrently, as well as a one year term of
supervised release. The district court noted that there was a basis for an upward
departure from the guidelines range because that range did not adequately reflect
the seriousness of Paul’s offenses and the conduct underlying the dismissed counts
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of the indictment. Later on the district court, however, expressly stated “I have
varied upward from the advisory guideline range for the reasons which should be
apparent from my comments.” The district court cited the above facts, along with
the need to deter others from engaging in tax fraud, in justifying its imposition of
an upward variance.
The district court found Paul’s education and immigration status to be
aggravating factors instead of mitigating factors, stressing that as a resident alien
he was “privileged” to be in the country and that as a college graduate he had the
knowledge and ability to avoid violating the law. The district court did not find
Paul’s family situation to be a mitigating factor, and it noted that Paul knowingly
risked his family’s welfare by engaging in criminal conduct and was responsible
for the consequences that his imprisonment would have on them. While the
district court appreciated the support Paul received from his friends and family, it
noted that none of the letters written on his behalf had acknowledged the nature of
his criminal conduct.
The district court also imposed restitution in the amount of $217,246.30.
II. LEGAL STANDARD
We review the reasonableness of a sentence, including a sentence above the
advisory guidelines range, under a deferential abuse-of-discretion standard. United
States v. Overstreet, 713 F.3d 627, 636 (11th Cir. 2013). Applying this standard
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involves a two-step process. United States v. Cubero, 754 F.3d 888, 892 (11th
Cir.), cert. denied, 135 S. Ct. 764 (2014). First, we examine whether the district
court committed any significant procedural error, such as miscalculating the
advisory guidelines range, treating the guidelines as mandatory, failing to consider
the factors listed in 18 U.S.C. § 3553(a),1 selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence. Id. Second,
we examine whether the sentence is substantively unreasonable under the totality
of the circumstances and in light of the 18 U.S.C. § 3553(a) factors. Id. The party
who challenges the sentence bears the burden of establishing that it is
unreasonable. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
The weight given to any specific § 3553(a) factor is left to the sound
discretion of the district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir.
2007). A district court, however, can abuse its discretion when it: (1) fails to
consider relevant factors that were due significant weight; (2) gives an improper or
irrelevant factor substantial weight; or (3) commits a clear error of judgment by
balancing proper factors unreasonably. United States v. Irey, 612 F.3d 1160, 1189
1The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission;
(9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution
to victims. 18 U.S.C. § 3553(a).
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(11th Cir. 2010) (en banc). The district court may consider conduct underlying
dismissed counts in its determination of a sentence. See United States v. Smith,
741 F.3d 1211, 1226-27 (11th Cir. 2013) (courts may consider both uncharged and
acquitted conduct in determining an appropriate sentence where that conduct is
proven at sentencing by a preponderance of the evidence).
Where, as here, a district court imposes an upward variance based upon
§ 3553(a) factors, it should explain why the variance is appropriate in that
particular case. See United States v. Moran, 778 F.3d 942, 983 (11th Cir.), cert.
denied, 136 S. Ct. 268 (2015). While “extraordinary justification” is not required,
the justification must be “sufficiently compelling to support the degree of the
variance.” Id. (quotation marks omitted).
III. DISCUSSION
As to procedural reasonableness, Paul argues that the district court erred by
departing upward under U.S.S.G. § 5K2.21 to reflect the seriousness of the conduct
underlying the dismissed counts.2 A review of the record shows that the district
court did not actually depart upward pursuant to U.S.S.G.
§ 5K2.21, but merely noted that there was a basis for such a departure under this
provision. Instead, the district court imposed a six-month upward variance, basing
its decision on its consideration of the § 3553(a) factors and its stated belief that
2Although Paul couches his argument in terms of substantive reasonableness, an
argument that the district court misapplied the guidelines goes to procedural reasonableness.
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the advisory guidelines range did not adequately reflect the seriousness of Paul’s
offense or his conduct. See United States v. Kapordelis, 569 F.3d 1291, 1316
(11th Cir. 2009) (concluding that a district court imposed an upward variance, and
not an upward departure, where the court’s rationale for the sentence was based on
its belief that the guidelines were inadequate and its consideration of the § 3553(a)
factors).3
Paul’s 36-month concurrent sentences are also substantively reasonable.
The district court expressly considered Paul’s education, immigration status,
family situation, and community support, and did not find them to be mitigating
factors. The district court considered Paul’s crimes to be very serious offenses and
deserving of a significant prison sentence. The district court sufficiently explained
its reasons for imposing a six-month upward variance, stating that the sentence
needed to reflect the seriousness of Paul’s offenses, promote respect for the law,
and deter others from engaging in similar conduct. These are appropriate
sentencing factors, and it was within the district court’s discretion to determine the
appropriate weight due these factors. See 18 U.S.C. § 3553(a)(2); Clay, 483 F.3d
at 743.
3 Although the district court here cited § 5K2.21 (unlike the district court in Kapordelis,
569 F.3d at 1316) in explaining why there was a basis for a departure, this is not dispositive
because the district court later on did not actually impose a departure relying on this provision
but stated it had varied upward.
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Finally, we reject Paul’s argument that the district court either abused its
discretion or violated Paul’s rights by considering conduct relating to the dismissed
counts in sentencing him. As we have already noted, the district court may
consider conduct underlying dismissed counts in its determination of a sentence.
See Smith, 741 F.3d at 1226-27. Accordingly, we affirm Paul’s 36-month
concurrent sentences.
AFFIRMED.
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