United States v. Alease Marie Lewis , 226 F. App'x 960 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 10, 2007
No. 06-16423 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00171-CR-01-RWS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEASE MARIE LEWIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 10, 2007)
Before BIRCH, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Alease Lewis appeals her 18-month sentence imposed after she pled guilty
to thirteen counts of preparing false tax returns, in violation of 26
U.S.C. § 7206(2). On appeal, Lewis argues that her sentence is unreasonable in
light of the factors in 18 U.S.C. § 3553(a). After review, we affirm.
I. BACKGROUND
Lewis worked as a tax preparer at Ace Tax Service during the 2001 filing
season. Between 2002 and 2004, Lewis operated her own tax preparation business.
Lewis attracted new clients by promising bigger refunds.
In May 2002, the Atlanta Fraud Detection Center opened an administrative
investigation after it noticed a pattern of inflated Schedule A deductions in returns
prepared by Lewis. In August 2002, Internal Revenue Service (“IRS”)
investigators interviewed Lewis regarding suspected income tax fraud. A
subsequent examination of 28 of the approximately 1500 tax returns Lewis
prepared between 2002 and 2004 revealed $88,568.43 in lost tax revenue.
Lewis pled guilty to thirteen counts of willfully assisting taxpayers in the
preparation and presentation to the IRS of tax forms that contained false tax
amounts, which were calculated based on entries that Lewis knew to be false.
Over half of the thirteen tax returns that formed the basis of Lewis’s indictment
were prepared after Lewis’s 2002 interview with the IRS.
The presentence investigation report (“PSI”) recommended a total offense
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level of 15 and a criminal history category of I, resulting in an advisory guidelines
range of 18 to 24 months’ imprisonment. Lewis filed a sentencing memorandum,
arguing that a term of probation would be a reasonable sentence. Lewis pointed to
the fact that she had no criminal history, was the sole provider for her two minor
children, and had not received any portion of the refunds she obtained. Lewis also
noted that the government had chosen not to prosecute the taxpayers involved.
At the sentencing hearing, Lewis did not object to the facts or the guidelines
calculations in the PSI.1 The district court therefore adopted the PSI’s findings and
advisory guidelines range.
Lewis argued for a sentence of probation. Lewis again pointed out that she
had no prior criminal record, which distinguished her from the average offender in
a criminal history category of I. The district court interrupted and expressed
concern that Lewis “got a warning shot” when she was visited by the IRS in 2002,
yet “continued to do this.” The district court explained that it was reluctant to
impose a sentence below the guidelines range because Lewis had engaged in “overt
illegal conduct” by “using her own children on other people’s returns.” Lewis
responded that the district court should also consider that Lewis was a veteran and
had “pulled herself up from nothing” to graduate from college, was raising two
1
Lewis’s only objection to the PSI was to argue that there was no basis for an upward
variance from the advisory guidelines range.
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children as a single mother, and was active in her church and the community.
Lewis contended that a term of probation would achieve the aims of punishment
without separating Lewis from her children.
After considering the parties’ arguments, the district court stated that Lewis
was “to be commended for what [she has] done in terms of improving [her] lot in
life,” and acknowledged the “terribly difficult decision” the court faced as to
whether to separate a family. The district court concluded, however, that Lewis
had “engaged in clearly illegal conduct that [she] knew was illegal,” “over a period
of time,” even after she was warned that the IRS was examining her. The district
court explained that it “[has] a duty under the law to apply the law impartially and
especially as between people who commit similar crimes under similar
circumstances” and observed that Lewis’s offenses were “not the least egregious of
these types of crimes” the district court had seen. Accordingly, the district court
sentenced Lewis to an 18-month sentence, at the low end of the advisory guidelines
range.
Lewis filed this appeal.
II. DISCUSSION
After United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), a district
court, in determining a reasonable sentence, must consider the correctly calculated
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advisory guidelines range and the 18 U.S.C. § 3553(a) factors. United States v.
Talley, 431 F.3d 784, 786 (11th Cir. 2005). Although the district court must
consider the § 3553(a) factors, “nothing in Booker or elsewhere requires the
district court to state on the record that it has explicitly considered each of the §
3553(a) factors or to discuss each of the § 3553(a) factors.” United States v. Scott,
426 F.3d 1324, 1329 (11th Cir. 2005). Instead, indications in the record that the
district court considered facts and circumstances falling within § 3553(a)’s factors
will suffice. Id. at 1329-30; Talley, 431 F.3d at 786.
We review a defendant’s ultimate sentence for reasonableness in light of the
§ 3553(a) factors. United States v. Williams, 435 F.3d 1350, 1353 (11th Cir.
2006). This “[r]eview for reasonableness is deferential,” and “when the district
court imposes a sentence within the advisory Guidelines range, we ordinarily will
expect that choice to be a reasonable one.” Talley, 431 F.3d at 788. “[T]he party
who challenges the sentence bears the burden of establishing that the sentence is
unreasonable in the light of both [the] record and the factors in section 3553(a).”
Id.
Here, we conclude that Lewis has not shown that her 18-month sentence is
unreasonable. Lewis does not dispute the district court’s advisory guidelines
calculations. Furthermore, although the district court did not, and was not required
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to, discuss each § 3553(a) factor, the record clearly indicates that the district court
considered several facts and circumstances falling within § 3553(a)’s factors,
including (1) Lewis’s history and characteristics, such as her efforts to escape dire
conditions as a child and graduate from college and her status as a single mother;
18 U.S.C. § 3553(a)(1); (2) the nature and circumstances of Lewis’s offenses, such
as the fact that Lewis continued to produce fraudulent tax returns after the IRS
informed her that it was monitoring her activities, id.; and (3) the need to avoid
unwarranted sentencing disparities, by recognizing that Lewis’s case was not the
least egregious, id. § 3553(a)(6). Under the facts and circumstances of this case,
Lewis has failed to show that her 18-month sentence, at the low end of the advisory
guidelines range, is unreasonable.
AFFIRMED.
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