The opinion of the court was delivered by: VICTOR MARRERO, District Judge
A jury convicted defendant Kimberly Hollier ("Hollier") of
three counts tax evasion. He now moves the Court to lower the
base level of his offense under the Sentencing Guidelines because
he contends the Probation Office overstated the tax loss he
caused. The Sentencing Guidelines' broad provisions for including
relevant conduct in the loss calculation expressly reject those
contentions. Hollier also moves the Court to downwardly depart
from the otherwise applicable sentencing range because he
contends his behavior was aberrant. The Court denies that motion
because Hollier's actions involved several years of deliberate
and planned conduct.
The facts emerging from this criminal trial, which are set
forth more fully in the Court's Decision and Order denying
Hollier's Rule 29 motion for a judgment of acquittal, see
United States v. Hollier, No. 03 Cr. 144, 2004 WL 856253
(S.D.N.Y. Apr. 19, 2004), are briefly as follows. Hollier worked as a carpenter for the New York City Housing Authority
("NYCHA") and in the three tax years for which he was indicted
(1996, 1997, and 1998), he attempted to pay zero taxes despite
earning substantial income. Hollier falsely stated on his IRS
Form W-4s that he was exempt from income withholding, and when
the IRS notified NYCHA that Hollier was indeed subject to
withholding, Hollier forged IRS letters purporting to return him
to exempt status. The evidence at trial was overwhelming and
unrefuted, and the jury returned a guilty verdict on all three
counts after only brief deliberation.
In calculating Hollier's base level offense for purposes of the
Sentencing Guidelines, the Probation Office determined that
Hollier failed to pay $46,653 in taxes owing to the federal
government and to New York State for the tax years 1993 through
1998. Hollier contends that figure is overstated.
First, Hollier claims that, in the pre-indictment tax years
(1993, 1994, and 1995), his unpaid taxes did not arise from the
scheme alleged in the indictment of falsely claiming to be
exempt, and thus, he contends those figures should be excluded
from the loss calculation as not part of "the same course of
conduct or common scheme or plan as the offense of conviction."
See United States Sentencing Guidelines Manual § 1B1.3(a)(2)
(1998) ("U.S.S.G."). The Sentencing Guidelines expressly reject Hollier's
contention: "In determining the total tax loss attributable to
the offense (see § 1B1.3(a)(2)), all conduct violating the tax
laws should be considered as part of the same course of conduct
or common scheme or plan unless the evidence demonstrates that
the conduct is clearly unrelated." See id. § 2T1.1 cmt. n. 1.
Hollier has not put forth any evidence suggesting the
pre-indictment tax deficiencies were unrelated; in fact, he does
not attempt to explain the nature of the deficiencies at all.
Second, Hollier alleges that he actually overpaid the IRS
$5,707 for the tax year 1999 and contends that this figure should
also be excluded. Even if this were true (the Court cannot verify
it) and setting aside the fact that it would make no difference
to Hollier's base offense level,*fn1 the Guidelines make
clear that "[t]he tax loss is not reduced by any payment of the
tax subsequent to the commission of the offense." Id. §
Hollier next moves for a downward departure on the theory that
his conduct was aberrant. His motion portrays an individual who
has overcome adversity to lead a productive life. The Court has
received about a dozen letters from friends and family as further testament to his character, apart
from the present offense. Hollier also points out that he has
repaid his tax debts corresponding to the tax years charged in
These facts are immaterial to the legal question at hand
because, under the Sentencing Guidelines, a Court may depart
downward for aberrant behavior "only if the defendant committed a
single criminal occurrence or single criminal transaction that
(1) was committed without significant planning; (2) was of
limited duration; and (3) represents a marked deviation by the
defendant from an otherwise law-abiding life." See U.S.S.G. §
5K2.20(b) (2003).*fn2 Hollier's actions were plainly of
significant duration and involved significant planning.
The trial evidence established that Hollier submitted at least
four W-4s falsely claiming exemption in four separate years, and
that he forged at least three IRS letters over a two-year period.
His fake letters appeared to track the language and appearance of
authentic IRS letters, and thus must have involved careful
planning and attention. This extensive and deliberate behavior
cannot be considered aberrant, no matter how admirably Hollier has carried himself in
other aspects of his life.
Finally, Hollier points out that a defendant named Guillermo
Riley ("Riley"), who was involved with the same anti-tax group as
Hollier and who committed similar crimes, was sentenced to
probation. Hollier apparently suggests that it would only be fair
that his sentence primarily not involve incarceration. The Court
is unclear as to the nature of this suggestion i.e., whether
it is a separate request for a downward departure or whether it
is merely something for the Court's consideration in determining
the sentence within the appropriate range. In either event, the
Court considers Riley's sentence immaterial for any purpose
regarding the punishment appropriate to Hollier's circumstances.
Riley pled guilty and thus received an adjustment for his
acceptance of responsibility, ultimately entitling him (unlike
Hollier) to a probationary sentence.