United States v. Hoskins (Roy) , 435 F. App'x 781 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
August 12, 2011
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 10-4092
v. (D. of Utah)
ROY B. HOSKINS, (D.C. No. 08-CR-277-DB-1)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, Chief Judge, TYMKOVICH, and GORSUCH, Circuit
Judges.
Roy Hoskins pleaded guilty to two counts of tax evasion, in violation of 26
U.S.C. § 7201, for attempting to evade taxes on income earned from his escort
service. The district court sentenced Hoskins to 60 months’ imprisonment, 36
months’ supervised release, restitution, and a monetary assessment. He appeals
his 60-month prison sentence.
Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we
AFFIRM.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
I. Background
Roy Hoskins founded Companions, a Salt Lake City escort service that he
owned and managed. As a Schedule C business, Companions did not file its own
tax returns. Rather, Hoskins was required to personally report income and
deductions attributable to Companions. For tax year 2001, Hoskins reported on
his U.S. Individual Income Tax Return, Form 1040, that Companions took in
$157,600 in gross receipts. For tax year 2002, Hoskins and his wife, Jodi
Hoskins, filed a joint federal income tax return and reported $902,750 in gross
receipts. 1 The government discovered, however, that Companions received at
least $490,937 in credit-card payments in 2001 and at least $1,053,552 in 2002.
This did not include any cash payments at all, even though cash transactions
represented approximately 50–75% of Companions’ business. Thus, the
government doubled the credit-card receipts to conclude Companions took in
more than $3 million in gross receipts in 2001–2002—more than $2 million of
which was unreported. The government calculated Hoskins caused a tax loss of
$817,895.
In May 2008, a federal grand jury charged Hoskins with willfully
attempting to evade his income taxes for 2001 and 2002, in violation of § 7201.
1
Jodi Hoskins was tried, convicted, and sentenced under § 7201 for
signing the inaccurate 2002 tax return. She appealed her conviction and sentence.
In a separate opinion, we affirmed the district court’s ruling. See United States v.
Hoskins, No. 10-4131 (10th Cir. 2011).
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Hoskins pleaded guilty to both counts without entering into a plea bargain.
Crediting the government’s estimates, the district court found that by virtue of his
inaccurate tax returns, Hoskins failed to report more than $2 million in gross
receipts, which resulted in a tax loss to the government of $817,895. The district
court rejected Hoskins’s alternative accounting of the tax loss based on unclaimed
deductions for commissions and tips that suggested a tax loss of only $228,740.
Under the United States Sentencing Guidelines (USSG), Hoskins was
subject to a base offense level of 20 and a criminal history category of IV. The
district court applied a two-level enhancement because it found Hoskins “failed to
report or to correctly identify the source of income exceeding $10,000 in any year
from criminal activity.” USSG § 2T1.1(b)(1). The court also, however, granted
Hoskins a two-level deduction for accepting responsibility for his crime. Id.
§ 3E1.1. That left Hoskins with a total offense level of 20 and, under the
Guidelines, a sentencing range of 51 to 63 months. The district court sentenced
Hoskins to 60 months’ imprisonment, 36 months’ supervised release, $817,895 in
restitution, and a $200 assessment.
II. Analysis
In his briefs, Hoskins challenges only the district court’s tax-loss
calculation. He contends the court should have accounted for unclaimed
deductions and arrived at a tax loss of $228,740. This would have lowered
Hoskins’s total offense level to 18—and his sentencing range to 46 to 57 months.
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In oral argument, however, Hoskins’s counsel explicitly abandoned this argument
in light of United States v. Spencer, 178 F.3d 1365 (10th Cir. 1999). Spencer
suggested that, in calculating tax loss for purposes of sentencing under USSG
§ 2T1.1, a district court should not consider deductions that a defendant might
have claimed on his inaccurate tax returns, but for the tax evasion. Id. at 1367.
To replace this lone, now-abandoned issue, Hoskins’s counsel attempted to raise
new issues during oral argument. But arguments not raised in an appellant’s
opening brief are waived. Coleman v. B-G Maint. Mgmt., 108 F.3d 1199, 1205
(10th Cir. 1997) (holding that issues not raised in an appellant’s opening brief are
“deemed abandoned or waived”). Thus, given his counsel’s concession at oral
argument, Hoskins has no arguments left on appeal and we must affirm.
Even if he had not abandoned the claim, Hoskins’s tax-loss argument lacks
merit. Hoskins’s 51-to-63 month sentencing guideline range was tied to the
court’s calculation that the government suffered a tax loss of $817,895. Hoskins
disputes this figure and contends the court improperly failed to account for
hypothetical deductions when estimating the government’s tax loss. Accordingly,
he says the government’s actual tax loss was approximately $228,740. The law is
clear, however, that the court did not err in accepting the government’s tax-loss
calculation and refusing to credit Hoskins’s self-serving, after-the-fact,
hypothetical returns.
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In a criminal tax case, a defendant’s base offense level under the
Guidelines is 18 if the government’s tax loss was between $200,000 and
$400,000, and 20 if the loss was between $400,000 and $1 million. USSG §§
2T4.1(F)–(H). The Guidelines define “tax loss” for the purpose of sentencing
defendants convicted under § 7201:
If the offense involved tax evasion or a fraudulent or false return,
statement, or other document, the tax loss is the total amount of
loss that was the object of the offense (i.e., the loss that would
have resulted had the offense been successfully completed).
USSG § 2T1.1(c)(1). Under this provision, tax loss “shall be treated as equal to
28% of the unreported gross income . . . , unless a more accurate determination
of the tax loss can be made.” Id. § 2T1.1(c)(1), Note (A) (emphasis added). We
defer to these interpretations of the Guidelines as important instructions from an
authoritative source. See United States v. Wise, 597 F.3d 1141, 1148 n.6 (10th
Cir. 2010) (“Commentary interpreting the sentencing guidelines is binding on the
federal courts unless it violates the Constitution or a federal statute, or is
inconsistent with the guideline it interprets.”) (quotation omitted). The
government bears the burden of proving the amount of tax loss arising from
defendant’s illegal acts, but under the Guidelines, “neither the government nor the
court has an obligation to calculate the tax loss with certainty or precision.”
United States v. Sullivan, 255 F.3d 1256, 1263 (10th Cir. 2001) (quotation
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omitted). We may overturn the district court’s tax-loss calculation only if it was
clearly erroneous. See Spencer, 178 F.3d at 1367.
In this case, 28% of Hoskins’s more than $2 million of unreported gross
income was approximately $560,000—well within the $400,000 to $1 million
range necessary to support the district court’s sentence—but both parties
proposed more accurate determinations of the loss. The government introduced
evidence showing Hoskins’s tax evasion resulted in an actual tax loss of
$817,895. It arrived at this number by accounting only for the deductions
originally claimed on Hoskins’s 2001 and 2002 returns. To counter the
government, Hoskins introduced evidence of unclaimed deductions—which
included deductions he purportedly could have claimed on the 2001 and 2002
returns, but did not—that suggested a tax loss of $228,740. These returns were
premised on Hoskins’s assertion that more than 60% of Companions’ gross
receipts, including those from unreported cash, were deductible commission
payments given to the escorts.
The district court reasonably determined the government’s calculation was
more credible and adopted it. As set forth in our companion opinion affirming
Jodi Hoskins’s conviction and sentence, the district court had numerous reasons
to credit the government’s tax-loss estimate and reject Hoskins’s proposed
deductions. See United States v. Hoskins (10th Cir. 2011) [Pearl: Please have
clerk insert citation]. Indeed, the record shows that, just as in Spencer, 178 F.3d
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at 1368, the district court found the evidence supporting Hoskins’s estimate of the
unclaimed tax deductions was not credible. And just as in Spencer, the district
court reasonably concluded that Hoskins’s “post hoc self-serving
characterization” of his tax returns was inadequate. Id. at 1369.
Thus, the district court’s finding that the government suffered an
approximately $817,895 tax loss was not clearly erroneous. We also note that
even if the court had refused to credit the government’s estimate, the default tax-
loss estimate—$560,000—would have yielded the same guidelines range and
supported Hoskins’s 60-month sentence.
III. Conclusion
For the reasons set forth above, we AFFIRM.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Circuit Judge
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