United States v. Roshanda D. Johnson , 135 F. App'x 312 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 14, 2005
No. 04-11405
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-00048 CR-J-S
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROSHANDA D. JOHNSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(June 14, 2005)
Before EDMONDSON, Chief Judge, BIRCH and COX, Circuit Judges.
PER CURIAM:
Roshanda D. Johnson appeals her sentence for conspiracy to defraud the
Internal Revenue Service in violation of 18 U.S.C. § 286, and for transferring and
using the identification of another with the intent to commit an unlawful activity in
violation of 18 U.S.C. § 1028(a)(7), (b)(1)(D). We vacate and remand for
resentencing.
We find no error in the district court’s calculation of the sentence under the
Guidelines, except that the court erred in calculating the amount of loss by including
the amount of the tax refunds to which the taxpayers were legitimately entitled. The
district court did not err by including the refund Johnson received from her 1996 tax
return in the loss calculations. Nor did the court err in determining that Johnson’s
conduct involved more than minimal planning, and in applying the abuse of trust and
vulnerable victim enhancements.
Under the Guidelines, the amount of loss does not have to be determined with
exact precision, and a court need only determine a reasonable estimation of the loss
given the available information. U.S.S.G. § 2F1.1, comment. (n.8) (1997). However,
the court provided no basis for why a reasonable estimation should include legitimate
tax refunds. Accordingly, we vacate Johnson’s sentence and remand for
resentencing.
Resentencing in this case must of necessity be consistent with the Supreme
Court’s decision in United States v. Booker, 125 S. Ct. 738 (2005). That being the
case, we need not address defendant’s argument that her original sentencing violated
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Booker. See United States v. Thompson, No. 04-2614 (8th Cir. April 14, 2005)
(stating that the court need not address a Booker issue where defendant’s sentence
was vacated and remanded for resentencing on other grounds).
SENTENCE VACATED; REMANDED FOR RESENTENCING.
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