United States v. Iverson ( 1996 )

UNITED STATES COURT OF APPEALS
Filed 11/12/96
TENTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-4185
(D.C. No. 95-CR-46)
JUDITH NELL IVERSON, (D. Utah)
Defendant-Appellant.
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ORDER AND JUDGMENT *
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Before BRORBY, EBEL and HENRY, Circuit Judges.
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After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
A jury convicted Ms. Judith Nell Iverson, defendant-appellant, on six
counts of filing false claims with the Internal Revenue Service, in violation of 18
U.S.C. § 287. The district court sentenced Ms. Iverson to twelve months
imprisonment and three years supervised release. As a condition of her
supervised release, Ms. Iverson is required to "pay all back taxes owed."
Additionally, Ms. Iverson must pay a $300 special assessment, $4,275.21 in
restitution and a $20,000 fine. Ms. Iverson appeals only the payment of back
taxes condition placed on the supervised release portion of her sentence. We
affirm.
On appeal, Ms. Iverson argues (1) the district court had no authority to
impose a payment of back taxes condition on her supervised release; (2) if the
court had authority to impose such a condition, the court impermissibly delegated
its authority to the probation office; and (3) the payment of back taxes condition
is "too vague to be enforced." Because Ms. Iverson had opportunity but did not
object to this condition of supervised release at sentencing, our review is for plain
error. See United States v. Ballard, 16 F.3d 1110, 1114 (10th Cir. 1994), cert.
denied, 114 S. Ct. 2762; United States v. Brewer, 983 F.2d 181, 183 (10th Cir.),
cert. denied, 508 U.S. 913 (1993).
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District courts have broad discretion when imposing conditions of
supervised release. United States v. Edgin, 92 F.3d 1044, 1048 (10th Cir. 1996).
However, by statute, the conditions imposed must 1) be reasonably related to "the
nature and circumstances of the offense and the history and characteristics of the
defendant," 18 U.S.C. § 3553(a)(1); 2) involve no greater deprivation of liberty
than is reasonably necessary given the needs "to afford adequate deterrence to
criminal conduct," id. § 3553(a)(2)(B), "to protect the public from further crimes
of the defendant," id. § 3553(a)(2)(C), and "to provide the defendant with needed
educational or vocational training, medical care, or other correctional treatment in
the most effective manner," id. § 3553(a)(2)(D); and 3) be consistent with any
pertinent Sentencing Commission policy. 18 U.S.C. § 3583(d). In other words,
the conditions of supervised release must be reasonably related to protecting the
public and rehabilitating the defendant. See United States v. Jordan, 890 F.2d
247, 255 (10th Cir. 1989).
Having reviewed the parties' briefs and the record in this case, we conclude
the district court acted well within the law and its authorized discretion in
ordering Ms. Iverson to pay back taxes as a condition of her supervised release.
The special condition at issue is not just reasonably related, but is directly related
to Ms. Iverson's conviction for making multiple fraudulent claims to the Internal
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Revenue Service for tax refunds. Such tax payments will prevent Ms. Iverson
from deriving any benefit from past tax evasion and protect the public coffers.
Moreover, the obligation to pay back taxes should deter Ms. Iverson from making
future fraudulent claims and from ignoring federal tax obligations as she has in
the past. The payment of back taxes condition in no way jeopardizes Ms.
Iverson's liberty, nor does she contend that the special condition conflicts with
any pertinent Sentencing Commission policy. The district court therefore was
fully authorized to impose the payment of back taxes condition.
Relying on principles applicable to restitution orders, Ms. Iverson contends
that even if the district court was authorized to impose the payment of back taxes
condition, such condition is an impermissible delegation of the court's authority,
and is unenforceable due to its vagueness. We disagree. In its judgment and
commitment order, the district court unambiguously mandated that "[a]s a special
condition of supervised release, the defendant is to pay all back taxes owed."
This statement is entirely consistent with the district court judge's oral statement
during sentencing that Ms. Iverson would be required to "take care of all back
taxes that she owes." Moreover, nothing in the record indicates the district court
either delegated the calculation of taxes to be paid to the probation office, or left
Ms. Iverson exposed to uncertain tax liability. Rather, the district court simply
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ordered Ms. Iverson to obey the tax laws by filing returns for any years she failed
to properly do so. The amount of Ms. Iverson's tax liability is controlled and
limited by the internal revenue laws, and will be determined by the Internal
Revenue Service once she files the necessary returns. The restitution cases Ms.
Iverson cites are inapposite under these circumstances. See United States v.
Serhant, 740 F.2d 548, 555-56 (7th Cir. 1984).
For these reasons, the special condition imposed on Ms. Iverson to "pay all
back taxes owed" prior to her becoming eligible for supervised release does not
constitute plain error. The judgment of the district court is AFFIRMED.
Entered for the Court:
WADE BRORBY
United States Circuit Judge
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