United States v. Baucom , 486 F.3d 822 ( 2007 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 06-4229
MARTIN LOUIS BAUCOM,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 06-4230
PATRICK GRANT DAVIS,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 06-4273
MARTIN LOUIS BAUCOM,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 06-4396
MARTIN LOUIS BAUCOM,
Defendant-Appellee.

2 UNITED STATES v. BAUCOM
UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 06-4398
PATRICK GRANT DAVIS,
Defendant-Appellee.

UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 06-4418
MARTIN LOUIS BAUCOM,
Defendant-Appellee.

Appeals from the United States District Court
for the Western District of North Carolina,
at Charlotte and Statesville.
Graham C. Mullen, Senior District Judge.
(5:02-cr-00026-1; 5:02-cr-00026-2; 3:02-cr-00147)
Argued: March 16, 2007
Decided: May 16, 2007
Before WILKINS, Chief Judge, and WILKINSON and
TRAXLER, Circuit Judges.
Affirmed in part; vacated and remanded in part by published opinion.
Chief Judge Wilkins wrote the opinion, in which Judge Wilkinson
and Judge Traxler joined.
UNITED STATES v. BAUCOM 3
COUNSEL
ARGUED: Thomas Kieran Maher, Chapel Hill, North Carolina, for
Martin Louis Baucom and Patrick Grant Davis. David Alan Brown,
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for the United
States. ON BRIEF: Gretchen C. F. Shappert, United States Attorney,
Charlotte, North Carolina, for the United States.
OPINION
WILKINS, Chief Judge:
Martin Louis Baucom and Patrick Grant Davis (collectively, "Ap-
pellants") appeal their convictions for conspiracy to defraud the
United States, see 18 U.S.C.A. § 371 (West 2000), and willful failure
to file tax returns, see 26 U.S.C.A. § 7203 (West 2002). The Govern-
ment challenges the variance sentences imposed by the district court,
contending that the district court improperly calculated the advisory
guidelines range and that the sentences imposed were unreasonable.
For the reasons set forth below, we affirm Appellants’ convictions,
vacate their sentences, and remand for resentencing.
I.
Appellants operated Baucom-Davis and Associates, a land survey-
ing and computer consulting business. From 1990 until 2002, Appel-
lants failed to file personal income tax returns. They also failed to file
income and employment tax returns for the business.
Appellants were charged in separate indictments on May 7, 2002.
On June 3, before his initial appearance, Davis requested a 60-day
continuance "to seek competent assistance of counsel to represent
[him] on constitutional grounds." J.A. 39. Davis’ motion stated that
he had "NEVER Waived [his] RIGHT TO COUNSEL" and that he
"object[ed] to this court’s attempt to force counsel on [him] against
[his] will." Id. at 41. Magistrate Judge H. Brent McKnight granted
Davis’ request for additional time.
4 UNITED STATES v. BAUCOM
At his initial appearance on June 17, Baucom also requested addi-
tional time to obtain counsel. This request was granted by Magistrate
Judge Carl Horn, III. Telephone calls from the office of the clerk on
July 2 and 18 indicated that Baucom had not yet obtained counsel. At
a hearing on August 12, Baucom informed the court that he had sent
nine questionnaires to attorneys in the hope of obtaining counsel but
had been unsuccessful. Magistrate Judge Horn granted Baucom an
additional four weeks, advising him that he should consider another
method of contacting potential attorneys and warning him that he
would be required to appear pro se at his arraignment if he did not
obtain counsel.
Meanwhile, on July 9, Davis filed another request for a continu-
ance to seek counsel. Davis asserted the right to have a "friend" act
as counsel, arguing that the right to "Counsel" guaranteed by the Sixth
Amendment, U.S. Const. amend. VI, was not limited to professional
attorneys. Davis’ 28-page memorandum in support of his motion pro-
vided, in part:
Defendant . . . has little confidence in the legal profession
. . . . Defendant is aware of a few attorneys he trusts, but
their multi-thousand dollar fees are out of the question . . . .
He does NOT trust just any attorney out of a grab-bag
whom the government is willing to furnish; neither would
this defendant be satisfied with such an "attorney’s" concept
of the Constitution of the United States after the average
attorney, full of law-school brainwashing, thinks that the
Constitution is what the judges say it is, rather than what the
Constitution itself, says it is.
J.A. 75. At a hearing regarding the motion, Magistrate Judge Mc-
Knight offered to appoint counsel for Davis, but Davis declined. The
judge granted Davis an additional 60 days.
At a hearing on August 8, Davis informed the judge that he still
had not obtained counsel. Davis assured Magistrate Judge McKnight
that he did not plan to ask for another extension of time. Despite this
pledge, on September 3 Davis filed yet another request for a 60-day
continuance to obtain counsel. The motion indicated that Davis had
contacted only three attorneys since the previous hearing. Baucom
UNITED STATES v. BAUCOM 5
filed an identical motion on the same day, naming the same three
attorneys and providing copies of the same certified mail receipts that
Davis had used as proof that he was attempting to obtain counsel.
Magistrate Judge Horn conducted Baucom’s arraignment on Sep-
tember 9, at which time Baucom stated that he still did not have coun-
sel. Magistrate Judge Horn justifiably admonished Baucom for
continuing to send questionnaires to potential attorneys after having
been advised that this was not an effective means of obtaining coun-
sel. The judge then ruled that Baucom had had adequate time to
obtain counsel, deemed him to be representing himself for purposes
of the arraignment, and asked Baucom whether he pleaded guilty or
not guilty. When Baucom refused to enter a plea, Magistrate Judge
Horn entered a plea of not guilty on Baucom’s behalf.
On October 23, Davis filed a document entitled "AFFIDAVIT &
DECLARATION OF CONTINUED EFFORTS TO SEEK COMPE-
TENT COUNSEL." Id. at 156. The document contained numerous
citations of Washington State cases and procedural rules. Among
other things, Davis asserted that "[t]his court has NO authority to
appoint me counsel over my objections"; "I can and will sue any
Attorney for ineffective assistance of counsel who is appointed to my
case over my objections"; and that "I can and will sue the person who
picked my attorney and appointed him to me over my objections if
said attorney loses my case." Id. at 163. The "affidavit" was witnessed
by Davis’ wife (who also notarized it) and by Baucom.
On November 4, United States District Judge Richard L. Voorhees
entered an order denying Davis additional time to seek counsel. Judge
Voorhees concluded that Davis "has been given ample time to secure
counsel, and his failure to do so is a result of his unjustifiable failure
to avail himself of the opportunities fairly given." Id. at 183.
At a hearing regarding counsel on November 6, Davis stated,
I’m of the opinion that this indictment is invalid and I don’t
think that I should have to plead to an invalid indictment. It
fails to state the specific tax that they are alleging I have
never paid. . . . [T]he section that is listed on this indictment
is a section that specifies the penalty for failing to obey
6 UNITED STATES v. BAUCOM
some other section, but they did not specify the section that
I have supposedly failed to comply with.
Id. at 191-92. Davis further asserted that even to plead "not guilty"
would amount to accepting the validity of the Government’s claim
that there was a tax that Davis owed. Judge Voorhees rejected this
argument, noted that Davis had had adequate time to obtain counsel,
and stated that Davis had the option of proceeding pro se with or
without standby counsel or having counsel appointed. Responding to
Davis’ protest, Judge Voorhees observed that Davis "seem[ed] to take
an attitude that [he was] not going to do anything affirmatively that
might help address the stalemate that now exists in the case and con-
sequently the court has to take its own initiative in the matter." Id. at
196. The court therefore appointed counsel.
A superseding indictment was filed on December 3, essentially
consolidating the charges against Appellants. Several days later,
Davis filed yet another motion seeking an extension of time to seek
counsel. He also filed several documents purporting to terminate
appointed counsel. At Davis’ arraignment on December 12, Magis-
trate Judge Horn discussed the situation with Davis and with
appointed counsel and decided to leave matters as they stood. When
Davis refused to enter a plea, Magistrate Judge Horn entered a plea
of "not guilty" on Davis’ behalf.
Davis filed a fifth request for a continuance on December 30, 2002.
Baucom filed an identical request—his third—on the same day. At
Baucom’s rearraignment, also on December 30, Magistrate Judge
Horn warned Baucom that the onus was on him to obtain a lawyer,
and if the scheduled trial date arrived and Baucom did not have coun-
sel, he would be required to proceed pro se. Baucom acknowledged
this.
Magistrate Judge Horn conducted a status-of-counsel hearing
regarding Davis on March 6, 2003. In light of Davis’ refusal to coop-
erate with appointed counsel, Magistrate Judge Horn relieved
appointed counsel. The judge then warned Davis that his trial was
scheduled for early April and stated, "You do not have a right to delay
the trial any further. That will be up to the [district court] whether [it]
wants to exercise the discretion and give you more time or not. If you
UNITED STATES v. BAUCOM 7
get to the April term and you haven’t found someone to represent
you, you will be representing yourself . . . ." Id. at 283.
Despite the warnings given to both Appellants, neither had retained
counsel by the April term of court. United States District Judge Gra-
ham Mullen (hereinafter "the district court") continued the case to the
July term of court.
On April 10, the district court filed a document from one Lewis
Anthony Ewing, which the court construed as a motion to appear pro
hac vice. The motion included a declaration in which Ewing claimed
to be "admitted to practice in the Superior Courts of the State of
Washington" and five tribal courts in that state, and "a member in
good standing" of several bar associations. Id. at 302. Ewing’s decla-
ration identified "Alan Richey" as co-counsel but provided no infor-
mation regarding him. Id. The motion was referred to Magistrate
Judge Horn. In a written order, the judge noted that despite Ewing’s
purported membership in bar associations, the declaration did not
indicate whether Ewing had graduated from an accredited law school,
whether he had passed a state bar exam, and whether he had been
admitted to any state bar. Further, Magistrate Judge Horn’s order
stated that he had called the telephone number supplied in the declara-
tion to inquire about these matters. "Mr. Ewing’s message did not
appear to be that of a law office, but the undersigned identified him-
self and recorded the three points of inquiry on Mr. Ewing’s voice
mail." Id. at 309. This call was not returned. In light of these prob-
lems, Magistrate Judge Horn denied the motion.
Appellants’ case was called for trial on August 4, 2003. At that
time, Appellants still were not represented by counsel, and they
requested another continuance. The district court denied the motion,
commenting, "It sure looks like you fellows have gamed the system
and it’s time for it to be over with . . . ." Id. at 344. The case then
proceeded to trial, and Appellants were convicted.
II.
We first consider Appellants’ challenge to their convictions.
Appellants maintain that their Sixth Amendment right to counsel was
8 UNITED STATES v. BAUCOM
violated by the refusal of the district court to grant a further continu-
ance to allow them to obtain counsel. We disagree.
The Constitution generally entitles a defendant to representation by
counsel of his choice. See United States v. Gonzalez-Lopez, 126 S. Ct.
2557, 2561 (2006). This right may be violated when the district court
refuses to continue a trial despite the fact that the defendant does not
have counsel, or when defendant’s counsel is unprepared to proceed.
See Sampley v. Att’y Gen., 786 F.2d 610, 612-13 (4th Cir. 1986). At
the same time, however, a defendant cannot delay trial indefinitely
"by simply showing up without counsel, or with allegedly unsatisfac-
tory counsel, whenever his case is called for trial." Id. at 613. In con-
sidering a request for continuance on the basis of absence of counsel,
the court must "make a judgment whether [the lack of counsel] results
from the lack of a fair opportunity to secure counsel or rather from
the defendant’s unjustifiable failure to avail himself of an opportunity
fairly given." Id. This judgment is reviewed for abuse of discretion.
See id.
The district court clearly did not abuse its discretion here. Nearly
15 months elapsed between Appellants’ initial indictments and the
date their case was called for trial. The record reveals that this lengthy
delay was due entirely to the desire of the magistrate and district court
judges to provide Appellants ample opportunity to obtain counsel of
their choice. Under the circumstances, Appellants were given a fair
opportunity to obtain counsel, and the denial of their motion to con-
tinue on the day of trial was not an abuse of discretion.
III.
Having affirmed Appellants’ convictions, we now consider the
Government’s challenges to the sentences imposed by the district
court. In United States v. Booker, 543 U.S. 220, 244 (2005), the
Supreme Court held that the Sixth Amendment right to a jury trial is
violated when the district court, acting pursuant to a mandatory guide-
lines system, imposes a sentence greater than the maximum autho-
rized by the facts found by the jury alone. To remedy this problem,
the Court severed and excised the provisions of the Sentencing
Reform Act, see Sentencing Reform Act of 1984, Pub. L. No. 98-473,
ch. II, 98 Stat. 1987-2040 (1984) (codified as amended at 18 U.S.C.A.
UNITED STATES v. BAUCOM 9
§§ 3551-3742 (West 2000 & Supp. 2006) and at 28 U.S.C.A. §§ 991-
998 (West 2006)), that mandated sentencing and appellate review in
conformance with the guidelines. See Booker, 543 U.S. at 259. This
excision rendered the guidelines "effectively advisory," id. at 245, and
replaced the previous standard of review with review for reasonable-
ness, see id. at 261.
We have previously described the necessary procedure for impos-
ing sentence under the now-advisory sentencing guidelines:
First, the court must correctly determine, after making
appropriate findings of fact, the applicable guideline range.
Next, the court must determine whether a sentence within
that range serves the factors set forth in [18 U.S.C.A.]
§ 3553(a) [(West 2000 & Supp. 2006)] and, if not, select a
sentence within statutory limits that does serve those factors.
In doing so, the district court should first look to whether a
departure is appropriate based on the Guidelines Manual or
relevant case law. . . . If an appropriate basis for departure
exists, the district court may depart. If the resulting depar-
ture range still does not serve the factors set forth in
§ 3553(a), the court may then elect to impose a non-
guideline sentence (a "variance sentence"). The district court
must articulate the reasons for the sentence imposed, partic-
ularly explaining any departure or variance from the guide-
line range. The explanation of a variance sentence must be
tied to the factors set forth in § 3553(a) and must be accom-
panied by findings of fact as necessary. The district court
need not discuss each factor set forth in § 3553(a) in check-
list fashion; it is enough to calculate the range accurately
and explain why (if the sentence lies outside it) this defen-
dant deserves more or less.
United States v. Moreland, 437 F.3d 424, 432 (4th Cir.) (citations,
internal quotation marks, & alterations omitted), cert. denied, 126
S. Ct. 2054 (2006). We review a sentence for reasonableness, consid-
ering "the extent to which the sentence . . . comports with the various,
and sometimes competing, goals of § 3553(a)." Id. at 433.
We begin our analysis by recounting the manner in which the dis-
trict court calculated Appellants’ advisory guideline ranges. Bau-
10 UNITED STATES v. BAUCOM
com’s presentence report (PSR) estimated his unpaid taxes at
$347,134.40; this amount included approximately $36,000 in unpaid
state taxes. See United States Sentencing Guidelines Manual
§ 2T4.1(G) (2003) (providing a base offense level of 18 for tax loss
of more than $200,000 but less than $400,000). The PSR recom-
mended a downward adjustment of two levels for acceptance of
responsibility, see U.S.S.G. § 3E1.1(a). The resulting final offense
level of 16, combined with Baucom’s Criminal History Category of
I, resulted in an advisory guideline range of 21-27 months. Davis’
guideline range was calculated in the same manner, except that Davis’
PSR estimated his unpaid taxes to be approximately $20,000 more
than Baucom’s.
At Baucom’s sentencing hearing in November 2004, the district
court refused to include the state taxes in relevant conduct:
I don’t think I have the . . . jurisdiction to sentence this man
for [a] violation of North Carolina law. I mean, it’s incon-
ceivable to me that a federal judge would be sitting up here
and saying you violated North Carolina law and I’m putting
you in jail for it. It’s just — what happened to the whole
notion of federalism? I don’t think I have the power to do
that. And if I do, if I have discretion, I decline to exercise
the discretion to do that. It’s not fair and I ain’t gonna. Y’all
can all go to Richmond and they can tell some other judge
what to do.
J.A. 702-03. The district court also overruled the Government’s
objection to the acceptance of responsibility reduction. The court
found that Appellants had gone to trial solely for the purpose of chal-
lenging the constitutionality of the federal tax system and therefore
the acceptance of responsibility reduction was available to them even
though they had gone to trial. See U.S.S.G. § 3E1.1, comment. (n.2)
(noting that a defendant who goes to trial may still receive an accep-
tance of responsibility deduction when, for example, he "goes to trial
to assert and preserve issues that do not relate to factual guilt," such
as a constitutional challenge to the statutory scheme).
The district court announced a sentence for Baucom of 21 months
imprisonment but delayed entering a judgment until Davis’ sentence
UNITED STATES v. BAUCOM 11
had been imposed. In the interim, the Supreme Court decided Booker,
and the district court reconvened the sentencing hearing in February
2006. The court considered the factors set forth in 18 U.S.C.A.
§ 3553(a), and imposed a sentence of 15 months imprisonment. The
court found that after being a "scofflaw" for 12 years, J.A. 778, Bau-
com had not made adequate efforts to rectify the situation. However,
the court ruled that there was no need to deter Baucom from further
criminal conduct or to protect the public.
At Davis’ sentencing, conducted the same day, the court imposed
a sentence of four years probation, conditioned on the service of 12
months of house arrest. In articulating the reasons for this sentence,
the court first noted Davis’ "extraordinary charitable works," id. at
761, which consisted of his involvement with a group that each sum-
mer brought children living in the area of the Chernobyl nuclear
disaster to the United States for medical treatment. The court also
noted Davis’ efforts to become current on his tax liability and the fact
that if Davis were incarcerated, the employees of his business would
suffer. As it did in Baucom’s case, the court found little need for the
sentence imposed to deter future criminal conduct or to protect the
public.
A.
The Government first maintains that the district court erred by
excluding state tax amounts from Appellants’ relevant conduct. This
is a question involving the legal interpretation of the guidelines, and
as such it is subject to de novo review. See United States v. Schaal,
340 F.3d 196, 198 (4th Cir. 2003).
The question here is whether state tax loss is relevant conduct to
a federal tax offense; if so, the district court erred in not including the
state tax amounts in its guideline calculations. See United States v.
Hayes, 322 F.3d 792, 802 (4th Cir. 2003) (holding that "a court has
no discretion to disregard relevant conduct in order to achieve the
sentence it considers appropriate"). Relevant conduct includes "all
acts and omissions . . . that were part of the same course of conduct
or common scheme or plan as the offense of conviction." U.S.S.G.
§ 1B1.3(a)(2). Under the plain language of the guideline, state tax
losses caused by Appellants are relevant conduct to the extent that
12 UNITED STATES v. BAUCOM
they "were part of the same course of conduct or common scheme or
plan" as Appellants’ failure to file federal tax returns. See United
States v. Powell, 124 F.3d 655, 665-66 (5th Cir. 1997).
The record indicates that Appellants failed to file state tax returns
as part of the course of conduct for which they were convicted. There-
fore, it was error for the district court to refuse to include the state tax
amounts when calculating the advisory guideline range. Although
Appellants contend that inclusion of the state tax loss would not alter
their base offense levels, it is not clear that this is correct. The Gov-
ernment notes that the district court did not include in its calculations
tax losses from the years 1998 through 2002, nor did it consider
updated figures offered by the Government at Davis’ sentencing hear-
ing. We leave to the district court the task of calculating the correct
amount of tax loss upon resentencing.
B.
The Government also contends that the district court erred in grant-
ing Appellants a two-level reduction for acceptance of responsibility.
We review this ruling for clear error. See United States v. Kise, 369
F.3d 766, 771 (4th Cir. 2004). "A finding is clearly erroneous when,
although there is evidence to support it, on the entire evidence the
reviewing court is left with the definite and firm conviction that a
mistake has been committed." Faulconer v. Comm’r, 748 F.2d 890,
895 (4th Cir. 1984).
Ordinarily, a reduction for acceptance of responsibility is not avail-
able to "a defendant who puts the government to its burden of proof
at trial by denying the essential factual elements of guilt, is convicted,
and only then admits guilt and expresses remorse." U.S.S.G. § 3E1.1,
comment. (n.2). However, when the defendant does not contest fac-
tual guilt but goes to trial only for the sake of raising and preserving
a constitutional challenge to the statutory scheme he is charged with
violating, an acceptance of responsibility reduction may still be avail-
able. See id. "In each such instance, however, a determination that a
defendant has accepted responsibility will be based primarily upon
pre-trial statements and conduct." Id.
Seizing on the above-quoted sentence, the Government maintains
that Appellants’ pretrial conduct was uniformly obstructive and was
UNITED STATES v. BAUCOM 13
"exactly the opposite of the expression of remorse that the acceptance
of responsibility guideline contemplates." Br. for the United States at
36 (internal quotation marks omitted). We agree. Furthermore, we
conclude that the district court clearly erred in finding that Appellants
proceeded to trial solely for the purpose of preserving their constitu-
tional challenge to the validity of the tax code. A cursory review of
the trial transcript demonstrates that Appellants in fact challenged
their factual guilt by contesting the element of willfulness. Therefore,
the district court improperly granted Appellants reductions for accep-
tance of responsibility.
C.
Finally, the Government contends that the sentences ultimately
imposed by the district court were unreasonable, even if premised on
proper guidelines calculations. Although we have already determined
that the district court improperly calculated the advisory guideline
ranges for Appellants, we will provide some brief comments regard-
ing the reasonableness of Appellants’ sentences as an aid to the dis-
trict court on remand.
First, we note that in both of Appellants’ cases, the district court
discounted the value of deterrence in so-called "tax protestor" cases.
The Government argues that this ruling is inconsistent with the poli-
cies set forth in the guidelines, and we are inclined to agree. In com-
mentary preceding the tax guidelines, the Sentencing Commission
states:
The criminal tax laws are designed to protect the public
interest in preserving the integrity of the nation’s tax system.
Criminal tax prosecutions serve to punish the violator and
promote respect for the tax laws. Because of the limited
number of criminal tax prosecutions relative to the esti-
mated incidence of such violations, deterring others from
violating the tax laws is a primary consideration underlying
these guidelines. Recognition that the sentence for a crimi-
nal tax case will be commensurate with the gravity of the
offense should act as a deterrent to would-be violators.
U.S.S.G. Ch. 2, Pt. T, intro. comment. (emphasis added). Even if the
district court is correct that deterrence is of less value in tax protestor
14 UNITED STATES v. BAUCOM
cases than in run-of-the-mill tax evasion cases, we remain of the opin-
ion that the district court acted unreasonably in entirely discarding
deterrence as a consideration in imposing sentence.
We also think that the sentences imposed by the district court fail
to reflect the seriousness of the offense and do not provide just pun-
ishment, as required by 18 U.S.C.A. § 3553(a)(2)(A). Appellants
failed to file taxes of any sort for twelve years before they were appre-
hended. Moreover, as the Government notes, neither Appellant began
paying taxes until 2004, after his conviction. Finally, we note with
respect to Davis’ sentence that we are troubled by the heavy reliance
of the district court on Davis’ charitable works. Cf. U.S.S.G.
§ 5H1.11, p.s. (providing that a defendant’s charitable works are ordi-
narily not a basis for departing from the guidelines).
IV.
For the reasons set forth above, we affirm Appellants’ convictions.
We vacate their sentences and remand for resentencing consistent
with this opinion.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART