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United States v. Weisberg

June 2, 2008


The opinion of the court was delivered by: Hon. Hugh B. Scott



Before the Court are defendant's objections to the Presentence Investigation Report ("PSR") and request to set the proper Sentencing Guidelines offense level for defendant (Docket No. 91*fn1 , Def. Objections at 1-2, 2 n.1). This case was scheduled for sentencing on May 28, 2008, before the undersigned (text notice, entered Mar. 14, 2008; Docket No. 88), but the Court heard argument of this issue on that date (Docket No. 94) after the Government briefed this issue by May 16, 2008 (Docket No. 94). In this Order, the Court will reschedule the balance of the sentencing submissions and the new sentencing date.


Defendant was tried for four counts of failure to file a tax return for the tax years 2000 to 2003, in violation of I.R.C. § 7203, and was convicted on three of the four counts (for tax years 2000, 2001, and 2003); the jury was unable to reach an unanimous for tax year 2002.

The PSR recommends an enhancement for obstruction due to defendant's purported perjury during the trial. The report indicates that defendant lied about his knowledge of his obligation to file tax returns following receipt of a manual from American Asset Protection, that the American Asset Protection's definition of a "person" for tax purposes only included corporations, when defendant would file his 2003 return, and whether he knew John Ellis of American Asset Protection was indicted (see Docket No. 91, Def. Memo. at 5-8).

Defendant contends that the PSR recommends a two-level enhancement pursuant to Guidelines § 3C1.1 for obstruction, that the PSR recommends denying credit for acceptance of responsibility under § 3E1.1, and that the PSR uses the 2007 version of the Guidelines rather than an earlier, more lenient version (Docket No. 91, Def. Objections at 2-3). He argues that the pre-2001 version of the Guidelines' tax provisions should be used, otherwise applying the 2007 version would violate his ex post facto clause rights (id. at 3, 13-16). He concludes that the appropriate total offense level should be 13, rather than 18 as proposed in the PSR (id. at 3), or 15 as the base offense level without enhancements or reductions (see id. at 16).

According to defendant's calculation, using the pre-2001 Guidelines tax provisions, his base offense level would be 15 (id. at 3). He seeks to not have a two-level enhancement imposed for alleged obstruction, and also seeks a two-level reduction for acceptance of responsibility, reducing the total level to 13 (id. at 2-3).

On the acceptance of responsibility, defendant points to several instances in which he has accepted responsibility (such as his letter of acceptance sent to the Probation Department, his admissions to IRS agents, his cooperation with investigating agents, plea negotiations, offers to stipulate to admission of evidence and streamlining the trial issues to boil it down to defendant's intent) to show that he deserves that reduction (id. at 10-13).


I. Appropriate Sentencing Guidelines Offense Level

A. Booker

The Supreme Court in United States v. Booker held that the Sentencing Guidelines can not be imposed mandatorily consistent with the Sixth Amendment rights of defendants, United States v. Booker, 543 U.S. 220, 244-67, 259 (2005) (opinion of Breyer, J.). This Court, however, must still "consult with those Guidelines and take them into account when sentencing," id. at 264; see United States v. Crosby, 397 F.3d 103, 111 (2d Cir. 2005). As a result, the Court must begin the sentencing process by considering what the Guidelines range would be for defendant's offense, even though the statutory mandatory sentence for a § 7203 violation is one year in prison, I.R.C. § 7203; cf. U.S. Sentencing Guidelines Manual §§ 1B1.2(a), 1B1.9 (2007) (Sentencing Guidelines do not apply to Class B misdemeanors, of up to six months) (hereinafter cited as "Sentencing Guidelines"); United States v. Maul, 205 Fed. Appx. 456 (7th Cir. 2006) (defendant sentenced to 1year for class A misdemeanor, less than Guideline range for offense).

But the cases revising the federal sentencing landscape, leading to and including Booker, involved how a judge could impose a Guidelines sentence beyond the maximum from the evidence adduced at trial consistent with the Sixth Amendment. Starting with Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), through Blakely v. Washington, 542 U.S. 296 (2004), and to Booker itself, 543 U.S. 220, the Supreme Court has held that the Sixth ...

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