Dist. Ct. erred in sentencing defendant to 71-month term of incarceration on charges of impeding IRS from collecting taxes and three counts of presenting fictitious financial instruments with intent to defraud. Under section 2T1.1(c)(1) of USSG, relevant attempted loss calculation was equivalent to $5.3 million tax lien that IRS imposed on defendant’s properties, rather that $14 million calculated by Dist. Ct., which was total amount of fraudulent checks that defendant had passed to IRS. Thus, new sentencing hearing was required because instant miscalculation of loss resulted in Dist. Ct. using wrong/inflated base offense level. However, Ct. rejected defendant’s contention that tax loss calculation could not include tax penalties and interest, where, as here, Dist. Ct. found beyond reasonable doubt that defendant had intended to defraud IRS by willfully failing to pay taxes that he owed to IRS.
Federal 7th Circuit Court
Criminal Court
Sentencing