United States v. Baxter, Laura M. , 217 F. App'x 557 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 27, 2007
Decided March 1, 2007
Before
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-2577
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District
of Illinois, Eastern Division
v.
No. 04-CR-371
LAURA BAXTER,
Defendant-Appellant. James F. Holderman,
Chief Judge.
ORDER
Laura Baxter pleaded guilty to obstructing and impeding the administration of the
federal tax laws, see 26 U.S.C. § 7212(a), and was sentenced at the low end of the
guidelines range to 24 months’ imprisonment. At sentencing, among many other things
the district judge commented that “[t]here are certain factors, of course, that the
sentencing guidelines require me not to consider.” Seizing upon this statement, Baxter
argues that her sentence is unreasonable because the district court erroneously
thought that the guidelines constrained his discretion to consider the factors set forth
in 18 U.S.C. § 3553(a). Taken out of context, we too would be concerned about the
district court’s statement. Reviewing the sentencing proceeding as a whole, however,
it is evident that the district court fully understood its discretion to select a reasonable
sentence and that it did not impose any limits at all on the evidence Baxter presented.
If the court committed any error in its phrasing of the test, we are satisfied that the
No. 06-2577 Page 2
error was harmless and did not reflect the reality of its actions. We therefore affirm the
sentence.
I
In October 1997 Baxter, a certified public accountant, knowingly submitted false
figures to an Internal Revenue Service auditor to foil an audit against one of her
clients, a married couple. Her ploy worked: the audit was closed and the IRS found (at
that time) that the couple owed no additional taxes. Several years later, however,
during its investigation of a complex tax sheltering scheme known as the Aegis system,
the government discovered what Baxter had done. The married couple had used the
Aegis System to underreport their income in a big way: Baxter’s falsified submission
to the auditor enabled them to avoid paying $576,000 in taxes. Baxter ultimately
pleaded guilty in a written agreement to obstructing and impeding the administration
of the federal tax laws, see 26 U.S.C. § 7212(a). For the purpose of computing relevant
conduct, the probation officer considered the tax loss attributable to Baxter to be
$576,000. Based on that, the probation officer calculated an offense level of 17, which
when combined with Baxter’s criminal history category of I, yielded a guidelines range
of 24 to 30 months’ imprisonment.
The district court conducted two sentencing hearings. At the first, held in
September 2005, the government raised several objections to the PSR (none relevant
to this appeal) and four witnesses testified on Baxter’s behalf to her good character and
charitable nature. One of Baxter’s business associates, for instance, testified that
Baxter filed tax returns at a discount for senior citizens and free of charge for military
personnel.
After ruling that it was adopting the probation officer’s recommendation, the court
conducted the second hearing in May 2006. At this hearing, Baxter argued that in light
of the factors set forth in § 3553(a), a non-custodial sentence would be reasonable.
Baxter, her lawyers argued, was a hardworking and compassionate woman. They
referred to several letters that Baxter’s friends and family had submitted that
explained how Baxter had built an accounting practice from the ground up; nursed a
family friend through a battle with cancer; completed tax returns for senior citizens
and military personnel free of charge; and volunteered with the Chamber of Commerce
for the last ten years. Although they conceded the fact that her offense was a serious
one, her attorneys asked the court to take into account the fact that her false
submission to the IRS was an aberration and that she had completed thousands of tax
returns without incident. Addressing the question of just punishment, they implored
the judge to consider what Baxter had lost since being indicted: her accounting
practice, her self-respect, and the respect of her community. Accordingly, they argued,
there was little need for a long sentence for the purpose of deterring either Baxter
herself or others in her position, nor was it necessary to protect the public from
Baxter’s future actions.
No. 06-2577 Page 3
At the conclusion of the hearing, the district court addressed the factors in
§ 3553(a). Expressly referring to § 3553(a)(1), the judge found that “the history and
characteristics of Ms. Baxter, of course, dictate toward a lighter sentence,” but it
reasoned that the serious nature of the offense, especially considering the significant
amount of the tax loss, largely offset Baxter’s redeeming qualities. Citing § 3553(c)(2),
the court then explained that while it believed Baxter “will never again engage in
criminal conduct,” it also believed that the reference to “adequate deterrence to
criminal conduct [in § 3553(c)(2)] is not specific deterrence of the defendant . . . [b]ut
it is to provide general deterrence.” At this point, the judge uttered the statement that
is the focus of this appeal:
There are certain factors, of course, that the sentencing guidelines require me
not to consider. In evaluating a sentence, I must look objectively at the factors,
but consider each defendant who comes before me.
The court ultimately concluded that a non-custodial sentence would “deprecate the
seriousness of the offense” and sentenced Baxter to 24 months’ imprisonment, the low-
end of the guidelines range.
II
Based on the judge’s statement that the “sentencing guidelines require [him] not
to consider” certain factors, Baxter argues that her sentence is unreasonable. To reach
this conclusion, Baxter assumes that the judge refused to consider her character
evidence, such as her preparation of tax returns free of charge for senior citizens and
military personnel and her volunteer work with the Chamber of Commerce. The
guidelines indeed discourage courts from considering these factors. See U.S.S.G.
§ 5H1.11 (discouraging courts from factoring “military, civic, charitable, or public
service; employment-related contributions; and similar prior good works” in deciding
whether to depart). Based on this assumption, Baxter concludes that her sentencing
was unreasonable because the Supreme Court’s decision in United States v. Booker,
543 U.S. 220 (2005), required the district court to consider whether her civic and
charitable works might have warranted a sentence below the guidelines range. See 18
U.S.C. § 3553(a)(1).
The government argues that we should review Baxter’s arguments about her
sentencing only for plain error, because Baxter did not object when the district court
made the statement at issue. That is incorrect. We have explained that “our decisions
after Booker . . . assume the absence of any need to object to a sentence as
unreasonable . . .” United States v. Castro-Juarez, 425 F.3d 430, 433 (7th Cir. 2005)
(rejecting government’s urging that defendant’s sentence be reviewed for plain error);
see also United States v. Cunningham, 429 F.3d 673, 679-80 (7th Cir. 2005) (“a lawyer
in federal court is not required to except to rulings by the trial judge”).
No. 06-2577 Page 4
Turning to the merits of Baxter’s arguments, a few propositions are well
established. First, this court accords a rebuttable presumption of reasonableness to a
sentence like Baxter’s that is within the guidelines range. See United States v. Gama-
Gonzalez, 469 F.3d 1109, 1110 (7th Cir. 2006). Since the Supreme Court granted
certiorari in Rita v. United States, 127 S.Ct. 551 (2006), in order to consider whether
any such presumption is consistent with Booker, we have also been reviewing the
reasonableness of sentences independently. We have followed that practice here as
well. Second, we have no quarrel with the general proposition that Booker eliminated
any notion of factors that may not be considered in sentencing solely because the
guidelines so define them. (Naturally, as the government points out, the Constitution
still constrains sentencing, and thus a court could not discriminate on the basis of race
or sex in its sentencing decisions. See, e.g., United States v. Wallace, 458 F.3d 606, 608
(7th Cir. 2006) (sex).) Courts may, however, take into account the fact that the
Sentencing Commission thought that certain factors ought to be disfavored, as long as
they ultimately consider whether the guidelines sentence conforms to the factors in 18
U.S.C. § 3553(a):
[T]he defendant must be given the opportunity to draw the judge’s attention to
any factor listed in section 3553(a) that might warrant a sentence different from
the guidelines sentence for it is possible for such a sentence to be reasonable and
thus within the sentencing judge’s discretion under the new regime . . . .
United States v. Dean, 414 F.3d 725, 730-31 (7th Cir. 2005). Accord Cunningham, 429
F.3d at 676. We have recognized repeatedly that it might be appropriate for a
sentencing judge to consider a defendant’s charitable works even though § 5H1.11 says
that such works are “not ordinarily relevant” to a guidelines calculation.
U.S.S.G. § 5H1.11; see Wallace, 458 F.3d at 608; United States v. Long, 425 F.3d 482,
488 (7th Cir. 2005). Indeed, unlike some other courts, see, e.g., United States v. Duhon,
440 F.3d 711, 717 & n.4 (5th Cir. 2006), we have said that district judges in this circuit
are not even required to explain why they have chosen to disregard a guidelines
provision like § 5H1.11, see United States v. Repking, 467 F.3d 1091, 1095 (7th Cir.
2006) (per curiam).
Baxter admits that she merely assumes that in exercising its discretion under
§ 3553(a), the district court ignored the now-permissible factors of her civic and
charitable work. The record conclusively refutes that argument. On the one hand, the
court never mentioned § 5H1.11 or indicated that anything Baxter had mentioned was
off limits. On the other hand, the sentencing transcripts affirmatively indicate that the
district court understood that it had discretion to consider Baxter’s civic and charitable
works. The court allowed Baxter to submit a substantial amount of evidence that
pertained to such activities, including the testimony of the four witnesses who testified
to her charitable nature; numerous letters that chronicled her charity work and her
volunteer position with the Chamber of Commerce; and the oral presentations of both
of her attorneys who described her charity work in detail. More than that, the court
No. 06-2577 Page 5
made it clear that it had reviewed these materials. And when it finally pronounced its
sentence, the court specifically referred to Baxter’s “history and characteristics”—the
factor in § 3553(a) that her civic and charity work bore upon—stating that “the history
and characteristics of Ms. Baxter, of course, dictate towards a lighter sentence . . . .”
Baxter’s sentence is not unreasonable just because the district court was not
persuaded to dip below the guidelines range. As this court has explained, “[a]
sentencing judge surely may elect to treat a defendant’s contributions to his community
as . . . grounds for a less severe sentence, but such contributions do little to establish
that a sentence within the Guidelines range is unreasonable.” United States v. Della
Rose, 435 F.3d 735, 738 (7th Cir. 2006).
Baxter makes one final argument that we readily dismiss. Acknowledging that she
agreed to the tax loss amount in her plea agreement and that she did not object to the
amount in the district court, she argues that the court nonetheless committed plain
error, see United States v. Groves, 470 F.3d 311, 330 (7th Cir. 2006), by attributing to
her a $576,000 loss. She contends that the loss was actually only $515,000, which she
argues would have lowered her offense level from 17 to 16, and yielded a guidelines
range of 21 to 27 months as opposed to 24 to 30 months. Baxter’s position is based
entirely on “post-sentencing research,” which she appends to her brief. But “[a]n
appellant may not attempt to build a new record on appeal to support [her] position
with evidence that was never admitted in the court below.” Brokaw v. Weaver, 305 F.3d
660, 668 (7th Cir. 2002) (quoting United States v. Phillips, 914 F.2d 835, 840 (7th
Cir.1990)); see also Fed. R. App. P. 10(a). We therefore do not consider this argument,
nor do we address the government’s argument that the district court erred in any event
by using the 1995 version of the guidelines rather than the 2005 version, and that
under the 2005 version Baxter’s sentence would be higher even using her revised
figures.
The judgment of the district court is AFFIRMED.