United States v. Vasquez , 176 F. App'x 292 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
4-19-2006
USA v. Vasquez
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2462
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2462
UNITED STATES OF AMERICA,
Appellant,
v.
ROLANDO VASQUEZ
Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal Action No. 04-cr-00084)
District Judge: Honorable William J. Martini
Submitted Under Third Circuit LAR 34.1(a)
March 7, 2006
Before: RENDELL and AMBRO, Circuit Judges,
and SHAPIRO,* District Judge
(Opinion filed April 19, 2006)
OPINION
SHAPIRO, District Judge.
*
Honorable Norma L. Shapiro, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
Rolando Vasquez was found guilty of filing a false claim with the Internal
Revenue Service (“IRS”) and aiding in the filing of a false income tax return. The
Government appeals his sentence of 16 months’ imprisonment. We vacate the sentence
and remand.
I. Factual Background and Procedural History
Rolando Vasquez, a tax preparer in Jersey City, New Jersey, used his tax
preparation business to defraud the IRS. The fraud took two forms: first, Vasquez, using
the social security numbers and identities of unknowing Puerto Rican residents to create
false W-2 forms and false tax returns, then claimed refunds on their behalf and deposited
the refund checks in bank accounts he controlled; second, Vasquez inflated tax refunds of
his actual tax preparation clients by fabricating deductions, without the knowledge of the
individual taxpayers, to increase his business volume (by establishing Vasquez’s
reputation as someone who could obtain large tax refunds). The scheme apparently had
the desired effect, as Vasquez prepared nine times as many tax returns in 2002 as he did
in 1995; the refunded amounts were correspondingly larger. The IRS audited 849 of the
13,164 tax returns Vasquez prepared for 2001 and 2002; filing those returns alone caused
a tax loss to the government of over two and one-half million dollars.
A jury convicted Vasquez of four counts of filing a false claim with the IRS in
violation of 18 U.S.C. § 287 (Counts 1-4) and eight counts of aiding in filing a false
income tax return, in violation of 26 U.S.C. § 7206(2) (Counts 5-12). The Indictment
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alleged a tax loss of $19,961, attributable to Counts 1-4; no specific amount of loss was
attributed to Counts 5-12.
Vasquez’s sentencing took place after the Supreme Court decided United States v.
Booker, 543 U.S. 220 (2005). Prior to sentencing, the Government presented the
Probation Office with evidence of many more fraudulent returns as “relevant conduct” for
sentencing under U.S.S.G. § 1B1.3.1 With regard to Counts 1-4, the Government
presented evidence of 52 additional false claims filed on behalf of Puerto Rican residents
as proof of a tax loss of approximately $260,000; with regard to Counts 5-12, it presented
evidence of over 800 additional inflated tax returns as proof of a tax loss of over $2.7
million. These losses raised the Sentencing Guidelines offense level for Counts 1-4 to 18
(from six) and for Counts 5-12 to 24 (also from six). Taking into account the loss
amounts and other sentence enhancing factors proffered by the Government, the
Presentence Report calculated the offense level at 26; with a criminal history category of
I, the Sentencing Guidelines range was 63 to 78 months’ incarceration.
By letter to the District Court, Vasquez argued the sentence should be based on the
guidelines offense level only for the loss figure alleged in the Indictment, because
judicial fact-finding in support of a Sentencing Guidelines increase violated his Sixth
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U.S.S.G. § 1B1.3(a) requires sentencing courts to consider as relevant conduct “all acts
and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully
caused by the defendant . . . that occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to avoid detection or responsibility for
that offense.”
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Amendment right to a jury trial under Booker. The offense level for the loss amount
proven at trial was only 12, with a guidelines range of 10 to 16 months. The Government
argued the continued appropriateness of judicial fact-finding at sentencing. The district
judge accepted certain sentence enhancing factors alleged by the Government,2 but
excluded the Government’s evidence of additional losses because he believed a sentence
based on losses not proven at trial was unconstitutional under Booker. Considering only
the “losses . . . reflected in the Indictment which the jury found the Defendant guilty on”
(less than $20,000), the district judge sentenced Vasquez to 16 months’ imprisonment.
The Government timely appealed.
II. Discussion
The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction under 28 U.S.C. § 1291 (review of final orders) and 28 U.S.C. § 3742(b)
(appeal of sentence by the Government).
We review the questions of law de novo, United States v. Hendricks, 395 F.3d 173,
176 (3d Cir. 2005), and the sentence for reasonableness. United States v. Cooper, 437
F.3d 324, 326-27 (3d Cir. 2006).
The issues before the Court are: whether the sentencing judge erred in refusing to
2
The judge found that Vasquez was in the business of preparing and assisting in the
preparation of income tax returns and used a special skill in committing the false claims fraud.
Additionally, the judge accepted the Government’s evidence that Vasquez was still preparing tax
returns while released on bond, although he had told the Probation Office the contrary, but
refused to accept proof the returns were fraudulent.
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consider the Government’s evidence of tax loss; and whether the resulting sentence was
reasonable.
The sentencing judge refused to consider any evidence of tax loss beyond that
alleged in the Indictment because a hearing before a judge to consider the Government’s
additional evidence would be “exactly the type of situation that the [Supreme Court in
Booker] said would not satisfy the Sixth Amendment, versus a hearing before a jury or a
plea of guilty to a specific amount of money.” J.A. at 58.
In Booker, the Supreme Court held the mandatory enhancement of a sentence
under the Sentencing Guidelines, based on facts (other than prior convictions) not
admitted by the defendant or found by a jury, violates the Sixth Amendment. Booker, 543
U.S. 220, 244 (2005). It remedied this constitutional infirmity by making the Sentencing
Guidelines “effectively advisory.” Id. at 245. After Booker, the sentencing procedure
includes two steps. United States v. Robinson, 435 F.3d 699, 700-701 (7th Cir. 2006).
The first step is to calculate the correct guideline range just as before. See Cooper, 437
F.3d at 330 (“as before Booker, the standard of proof under the guidelines for sentencing
facts continues to be preponderance of the evidence”); United States v. Miller, 417 F.3d
358, 363 (3d Cir. 2005) (“the District Court is free to engage in precisely the same
exercise in judicial fact finding as it did [before Booker], so long as such fact finding is
consistent with Booker”). In the second step, a judge must consider the statutory factors
listed in 28 U.S.C. § 3553(a) to determine whether to sentence within the advisory
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guidelines range. Because Booker did not change the manner in which the correct
guidelines range is calculated, but only the weight of the correctly calculated range in the
final determination of the appropriate sentence, the district judge erred in holding that it
was improper to consider evidence relevant to sentencing.
Vasquez contends that even if the sentencing judge erred in failing to consider the
additional evidence of tax loss, the sentence should not be vacated because it is
reasonable. To determine if the court acted reasonably in imposing a sentence, we must
first be satisfied the court exercised its discretion by giving meaningful consideration to
the relevant factors under 18 U.S.C. § 3553(a). Meaningful consideration of the §
3553(a) factors necessarily includes the correct calculation of the applicable guideline
range. 18 U.S.C. § 3553(a)(4). See Booker, 543 U.S. at 224 (“district courts must consult
the Guidelines and take them into account when sentencing”); Cooper, 437 F.3d at 329(“[i]n consideration of the § 3553(a) factors, a trial court must calculate the correct
guidelines range applicable to a defendant's particular circumstances”).
The district judge did not give meaningful consideration to the § 3553(a) factors
because he refused to consider tax loss evidence that, if found probative, would have
resulted in a significantly higher offense level and guideline sentencing range. See
Robinson, 435 F.3d at 702 (“[b]y sidestepping [the] determination [of the sentencing facts
alleged by the Government], the district judge erred as a matter of law by failing to
resolve a disputed sentencing fact essential to a properly calculated guidelines range”).
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Under Booker, a trial judge is not obligated to sentence within the applicable
guidelines range, but is obligated to consider the correct range as one of the § 3553(a)
factors. A judge cannot reasonably impose the same sentence regardless of the correct
advisory range any more than the judge could reasonably impose the same sentence
regardless of the seriousness of the offense. United States v. Duhon, No. 05-30387, ---
F.3d ----, 2006 WL 367017 (5th Cir. Feb. 17, 2006), at *4.
On remand, the district judge should consider the evidence proffered by the
Government, correctly calculate the applicable guidelines range, and impose a sentence
upon consideration of all the § 3553(a) factors.
III. Conclusion
The sentencing judge erred in failing to consider the Government’s evidence of
relevant conduct. We vacate the judgment of sentence and remand for resentencing in
accordance with this opinion.
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