United States v. Daniel Musa , 830 F.3d 786 ( 2016 )


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  •                   United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 15-2078
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    Daniel Nok Musa
    lllllllllllllllllllll Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the District of Minnesota - St. Paul
    ____________
    Submitted: May 16, 2016
    Filed: July 28, 2016
    ____________
    Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
    ____________
    KELLY, Circuit Judge.
    Daniel Nok Musa pleaded guilty, without a written plea agreement, to 14
    counts of failing to pay to the Internal Revenue Service (I.R.S.) the full amount of his
    employees’ tax withholdings, in violation of 26 U.S.C. § 7202. The district court
    sentenced Musa to 51 months’ imprisonment on all 14 counts, to be served
    concurrently. Musa appeals, challenging the court’s application of a four-level
    leadership enhancement under USSG § 3B1.1(a). Because we find that the district
    court did not make the required findings for this enhancement, we remand to the
    district court.
    I.
    Musa was the owner and president of a home health care service. Beginning
    in the first quarter of 2006 and continuing through September 2009, Musa failed to
    forward all of the federal income taxes and FICA taxes withheld from his employees’
    paychecks to the I.R.S. Instead, he spent the money. As the I.R.S. attempted to
    collect the unpaid taxes, Musa changed the name of his home health care service and
    placed various properties and businesses in the names of his wife and three children.
    In calculating Musa’s advisory sentencing guidelines, the probation office
    recommended Musa be given a four-level enhancement for his role in the offense.
    See USSG § 3B1.1. The probation officer recommended the adjustment because:
    Musa controlled and exercised complete decision making authority over
    the six businesses he created over an extended (11 year) period of time.
    His conduct involved a degree of authority as he moved from one
    business to another in order to evade taxes. Further, investigative
    materials indicate that Musa created false documents to make it appear
    that at least one business, LLPCA[,] had been run by his daughter.
    Musa objected that this was a one-person offense and that being in control of various
    entities did not elevate his role into that of a leader or organizer. The probation office
    responded that the four-level role enhancement was warranted because the offense
    involved criminal activity that was “otherwise extensive,” “Musa controlled and
    exercised complete decision making authority over the six businesses he created” and
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    his “conduct involved a degree of authority as he moved from one business to another
    in order to evade taxes.”
    At the sentencing hearing, the district court overruled Musa’s objection,
    stating:
    I find that regardless of whether there were others involved in this
    criminal activity, there is the ‘or was otherwise extensive’ provision, and
    I think this was clearly extensive, this situation. Mr. Musa had authority
    over six businesses [over] an 11-year extended period of time. He
    certainly had authority because he moved from one business to another
    in order to evade taxes, created false documents.
    The district court then imposed the four-level enhancement.
    II.
    On appeal, Musa contends the district court erred in imposing a four-level
    leadership-role enhancement because the court failed to identify any other participant
    whose activities Musa directed. We review a district court’s factual findings
    regarding whether a leadership enhancement is warranted for clear error and its legal
    conclusions de novo. United States v. Adetiloye, 
    716 F.3d 1030
    , 1037 (8th Cir.
    2013). It is the government’s burden to prove a leadership enhancement applies by
    a preponderance of the evidence. 
    Id. Sentencing Guideline
    § 3B1.1(a) allows a four-level increase in a defendant’s
    offense level “[i]f the defendant was an organizer or leader of a criminal activity that
    involved five or more participants or was otherwise extensive.” In order for the
    leadership enhancement to apply, the government must prove two elements. First, the
    government must prove the defendant organized or led at least one other participant
    in the criminal activity. USSG § 3B1.1 cmt. n.2; see also United States v. Adejumo,
    -3-
    
    772 F.3d 513
    , 532 (8th Cir.2014) (noting that “[w]e have always required evidence
    that the defendant directed or procured the aid of underlings” (quoting United States
    v. Irlmeier, 
    750 F.3d 759
    , 764 (8th Cir. 2014)). Second, the government must prove
    the criminal activity involved at least five participants or was “otherwise extensive.”
    USSG § 3B1.1(a); see also United States v. Vasquez-Rubio, 
    296 F.3d 726
    , 729 (8th
    Cir. 2002). “A ‘participant’ is a person who is criminally responsible for the
    commission of the offense, but need not have been convicted.” USSG § 3B1.1 cmt.
    n.1; see also 
    Vasquez-Rubio, 296 F.3d at 729
    . “A person who is not criminally
    responsible for the commission of the offense (e.g., an undercover law enforcement
    officer) is not a participant.” USSG § 3B1.1 cmt. n.1.
    The government asserts the district court implicitly found that Musa’s family
    members were “participants” by adopting the information contained in the
    Presentence Report (PSR). Although we generally construe the terms “organizer” and
    “leader” broadly, see United States v. Bolden, 
    596 F.3d 976
    , 983 (8th Cir. 2010), in
    order for a defendant to be an organizer or leader, there must be some evidence that
    he directed at least one other participant. United States v. Rodriguez-Ramos, 
    663 F.3d 356
    , 365 (8th Cir. 2011). Here, the court specifically stated that the
    enhancement applied “regardless of whether there were others involved in this
    criminal activity.” There was no discussion regarding the necessary elements of the
    enhancement during the sentencing hearing. The only facts cited by the district court
    concerned Musa’s control over different business entities, not other people. Finally,
    both the PSR and the government’s position on sentencing suggested the
    enhancement could apply based on Musa’s criminal activity simply being “otherwise
    extensive,” without addressing whether Musa directed or organized someone else.
    On this record, we cannot say that the district court made the required finding
    that Musa organized or led at least one other participant in the criminal scheme to
    justify the four-level enhancement. Accordingly, we remand the case to provide the
    district court the opportunity to clarify whether Musa organized or led at least one
    -4-
    other participant, and to identify what evidence in this record supports that finding.1
    If the record fails to support such a finding, the district court should proceed
    accordingly.
    COLLOTON, Circuit Judge, concurring.
    The district court found that appellant Daniel Musa was an organizer or leader
    of criminal activity that was “otherwise extensive.” See USSG § 3B1.1(a). I concur
    in the opinion of the court remanding for clarification because it holds only that the
    district court did not make an adequate finding about whether Musa organized or led
    another participant in the criminal activity. See 
    id., comment. (n.2).
    The government
    argues on appeal that the adjustment was appropriate because the district court
    adopted facts in the presentence report establishing that Musa’s wife and children
    were participants in criminal activity organized or led by Musa. The court’s opinion
    does not address the sufficiency of this evidence; it holds only that the district court
    did not make the required finding that Musa organized or led another participant. The
    government also argues that the judgment could be affirmed on the alternative ground
    that Musa’s criminal activity involved at least five criminally responsible participants.
    The district court made no finding on this issue, and the opinion does not address it.
    Ante, at 5 n.1. The opinion also does not address whether the record would support
    an upward departure or variance from the advisory guideline range if Musa did not
    organize or lead another participant. See 18 U.S.C. § 3553(a)(1); USSG § 3B1.1,
    comment. (n.2). On these understandings, I concur.
    ______________________________
    1
    Because we are remanding for clarification of whether the government showed
    Musa organized or led at least one other participant—a necessary element for a
    leadership enhancement—we do not address whether the government showed that the
    criminal activity “involved five or more participants or was otherwise extensive.”
    USSG § 3B1.1(a).
    -5-
    

Document Info

Docket Number: 15-2078

Citation Numbers: 830 F.3d 786

Filed Date: 7/28/2016

Precedential Status: Precedential

Modified Date: 1/12/2023