United States v. Roselli

366 F.3d 58, 93 A.F.T.R.2d (RIA) 2168, 2004 U.S. App. LEXIS 8838, 2004 WL 964297
CourtCourt of Appeals for the First Circuit
DecidedMay 5, 2004
Docket03-1550
StatusPublished
Cited by28 cases

This text of 366 F.3d 58 (United States v. Roselli) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Roselli, 366 F.3d 58, 93 A.F.T.R.2d (RIA) 2168, 2004 U.S. App. LEXIS 8838, 2004 WL 964297 (1st Cir. 2004).

Opinion

LIPEZ, Circuit Judge.

Defendant Antonio Roselli pleaded guilty to tax fraud. At sentencing, the district court declined to determine the exact amount of the tax loss, and the offense level that would result from such a determination, ruling that such a finding would not affect the sentence. The court then departed downward from the Sentencing Guidelines based on Roselli’s extraordinary family circumstances. The Government now appeals both the failure to specify an amount of tax loss and the decision to depart. Although we agree that the failure to specify an amount of tax loss and the related offense level was an error, we find that error harmless, and we affirm. 1

I.

In 1989, Antonio Roselli began working as a partner in an accounting firm where he provided tax services. In 1997 and 1998, Roselli prepared tax returns on behalf of his clients that included false deductions for charitable contributions and business expenses. He charged his clients approximately $250 for each false return. Roselli also amended tax returns from pri- or years, adding false deductions in an effort to procure retroactive refunds. For each amended return he charged approximately one third of the expected refund. The Government contends that, all told, Roselli prepared more than 140 false tax returns, accounting for $101,524 in tax loss to the United States Treasury.

On August 29, 2002, Roselli pleaded guilty to one count of conspiracy to aid, assist, and abet in the filing of materially false tax returns in violation of 26 U.S.C. § 7206(2). In the plea agreement, the Government stated its belief that the tax loss was $101,524, indicating a base offense level of 14 pursuant to section 2T1.4 of the Sentencing Guidelines. 2 The Government *61 argued that the appropriate total offense level, after several adjustments, was 13. 3 The Government agreed to recommend a sentence of twelve months incarceration, a $20,000 fine, a $100 special assessment, and three years of supervised release. Roselli asserted that the tax loss was not readily ascertainable and, in any event, was far less than $101,524. Although he asserted that the proper total offense level was 10, he nevertheless agreed to recommend the same sentence as the prosecution, except that he would seek home detention for the twelve month period rather than incarceration. 4

At the sentencing hearings, Roselli asserted that the tax loss was between $8,000 and $10,000. He offered several examples, though not an exhaustive list, of tax returns that he alleged should not have been included in the government’s loss calculation. These examples amounted to an alleged overstatement of $52,525, bringing the tax loss down to no more than $48,999. Nevertheless, Roselli reiterated that he would accept the Government’s recommendation of a total offense level of 13 so long as the court did not make a finding that the tax loss was $10,000 or more. The Government argued that the court must make a specific finding as to the tax loss and calculate the offense level based on that finding.

During the sentencing hearing, Roselli’s counsel explained that a tax loss finding could have harmful collateral consequences in a subsequent deportation proceeding. Although Roselli has lived in the United States for approximately 34 years, he is a citizen of the United Kingdom and may be subject to deportation if he is convicted of an “aggravated felony.” 8 U.S.C. § 1227(a)(2)(A)(iii). The violation of 26 U.S.C. § 7206(2)is not specifically listed as an aggravated felony, but the definition of “aggravated felony” includes any offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” 8 U.S.C. § 1101(a)(43)(M)(i). 5 If the court made an explicit finding that the tax loss was greater than $10,000, such *62 a finding might be preclusive in any subsequent deportation proceeding. See, e.g., Hammer v. INS, 195 F.3d 836, 840-41 (6th Cir.1999) (findings made during a denatu-ralization proceeding have preclusive effect in a subsequent deportation proceeding). Roselli would then be subject to deportation if the court found that a violation of 26 U.S.C. § 7206(2) fit the parameters outlined in 8 U.S.C. § 1101(a)(43)(M)(i).

After receiving supplemental briefs on the issue of the tax loss finding, the court declined to determine whether the tax loss was $101,524 as suggested by the Government, between $8,000 and $10,000 as suggested by Roselli, or somewhere between those two figures. The court reasoned that if it accepted Roselli’s assertion that the tax loss was between $8,000 and $10,000, the resulting total offense level would be 10, corresponding to a guideline range of 6 to 12 months and a fine of between $2,000 and $20,000. If the court accepted the Government’s contention that the tax loss was $101,524, the total offense level would be 13, corresponding to a guideline range of 12 to 18 months and a fine of $3,000 to $30,000. Thus, there was a point of overlap in guideline ranges that corresponded precisely with the Government’s sentencing recommendation: 12 months of incarceration and a fine of $3,000 to $20,000. 6 The court then stated its conclusion on the tax loss finding issue:

I’m confronted with, I think, a realistic prospect that the tax loss could be disputed. And the process of resolving that dispute would be not quite the equivalent of the trial itself, but would be a quite demanding claim upon the Court’s resources. Here, I would have to, I think, hear from [a witness]. I’d have to examine a variety of different tax returns to determine the tax loss. And there seems to me to be no particular benefit to doing that when we’re dealing with overlapping Guidelines. And, of course, it’s particularly the case that the Government in its plea agreement has committed itself to making a recommendation at that point of overlap under the Guidelines.

Having determined that the appropriate Guidelines sentence corresponded to a point of overlap in the two guideline sentencing ranges suggested by the parties, the court ruled that a finding as to the exact amount of the tax loss would “not affect sentencing” and was therefore unnecessary. Fed.R.Crim.P. 32(i)(3)(B). 7 The court made only the general finding that the tax loss was “not less than $8,000.”

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Bluebook (online)
366 F.3d 58, 93 A.F.T.R.2d (RIA) 2168, 2004 U.S. App. LEXIS 8838, 2004 WL 964297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-roselli-ca1-2004.