United States v. William Jones, Jr. , 778 F.3d 1056 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-1327
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
William Fielding Jones, Jr.
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: November 14, 2014
Filed: March 3, 2015
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Before BYE, SHEPHERD, and KELLY, Circuit Judges.
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SHEPHERD, Circuit Judge.
William Fielding Jones, Jr. pled guilty to tax evasion and now appeals the
sentence imposed by district court,1 arguing the district court improperly enhanced his
sentence for use of sophisticated means. We affirm.
1
The Honorable David Gregory Kays, Chief Judge, United States District Court
for the Western District of Missouri.
I.
Jones owned a company called SAM Packaging. Between Fall 2009 and Fall
2010, Jones took numerous actions to avoid paying the several hundred thousand
dollars he owed in back taxes for the years 2006 to 2008. For instance, Jones refused
to provide the Internal Revenue Service (“IRS”) with his bank statements, and when
he later did submit bank statements, he blacked parts of them out. He submitted IRS
Forms 433-A and 433-B (financial disclosure forms relating to individuals and
businesses, respectively) in Fall 2009, disclosing two bank accounts at Mutual of
Omaha Bank, but failing to disclose an account at Community America Credit Union
(“CACU”). He subsequently opened a second CACU account. When he submitted
updated Forms 433-A and 433-B in 2010, he again disclosed his accounts at Mutual
of Omaha Bank but not his accounts at CACU. He simultaneously directed his
financial activity to the undisclosed CACU accounts.
When the IRS levied on one of Jones’s accounts at Mutual of Omaha Bank, it
found the account was nearly empty. Jones also commingled his personal and
business accounts, prompting the IRS to levy on his business accounts. The IRS
revenue officer assigned to Jones’s case explained it was “a very rare thing” to levy
on a taxpayer’s business accounts. After the IRS levied on Jones’s accounts, he began
dealing in cash, keeping between $10,000 and $15,000 per month for personal
expenses. In Fall 2010, when Jones admitted having cash available, he made only a
single payment of $3,000 towards his back taxes.
Jones also refused to turn over SAM Packaging’s accounts receivable and told
the IRS he would terminate the business before doing so. In 2010, he informed the
IRS that SAM Packaging had been “suspended” and he was unemployed. In reality,
Jones had started a new company, Mustang Innovation LLC, without notifying the
IRS. This allowed Jones to secretly continue doing business under his SAM
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Packaging contracts as Mustang Innovation LLC. In Fall 2010, when the IRS
summonsed two of Jones’s customers, it learned he had performed work without
billing them, thus preventing the IRS from levying on his accounts receivable. Jones
additionally listed multiple Employer Identification Numbers (“EINs,” which are
numbers the IRS issues to identify businesses) for SAM Packaging. He used the
correct EIN on SAM Packaging’s bank accounts, but used a former employee’s social
security number on corporate tax returns he submitted to the IRS.
Jones pled guilty to tax evasion, in violation of 26 U.S.C. § 7201. At the
sentencing hearing, and over Jones’s objection, the district court imposed a two-level
enhancement for use of sophisticated means, as recommended in the presentence
investigation report. Jones’s base offense level was 20. After imposing the two-level
enhancement and granting a three-level reduction for acceptance of responsibility, the
district court determined a total offense level of 19 with a criminal history category
of I, producing a Guidelines range of 30 to 37 months imprisonment. Varying
downward, the district court sentenced Jones to 24 months imprisonment with three
years supervised release to follow. Jones now argues the district court improperly
enhanced his sentence for use of sophisticated means.
II.
Jones contends the district court erred in enhancing his sentence because his
actions were typical of tax evasion offenses and did not make detection of his offense
more difficult. We disagree.
The Guidelines call for a two-level increase of the base offense level if the tax
evasion offense “involved sophisticated means.” United States Sentencing
Commission, Guidelines Manual, § 2T1.1(b)(2). The Guidelines define “sophisticated
means” as “especially complex or especially intricate offense conduct pertaining to
the execution or concealment of an offense.” USSG § 2T1.1, comment. (n.5).
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Although the Guidelines indicate “[c]onduct such as hiding assets or transactions, or
both, through the use of fictitious entities, corporate shells, or offshore financial
accounts ordinarily indicates sophisticated means,” id., these “examples are by their
own terms simply illustrative, not exclusive.” United States v. Lewis, 93 F.3d 1075,
1082 (2d Cir. 1996). “The sophisticated-means enhancement is proper when the
offense conduct, viewed as a whole, ‘was notably more intricate than that of the
garden-variety [offense].’” United States v. Jenkins, 578 F.3d 745, 751 (8th Cir.
2009) (alteration in original) (quoting United States v. Hance, 501 F.3d 900, 909 (8th
Cir. 2007)) (addressing sophisticated-means enhancement in USSG § 2B1.1). “‘Even
if any single step is not complicated, repetitive and coordinated conduct can amount
to a sophisticated scheme.’” United States v. Huston, 744 F.3d 589, 592 (8th Cir.
2014) (quoting United States v. Fiorito, 640 F.3d 338, 351 (8th Cir. 2011))
(addressing sophisticated-means enhancement in USSG § 2B1.1). “‘We review the
factual finding of whether a . . . scheme qualifies as ‘sophisticated’ for clear error.’”
Huston, 744 F.3d at 592 & n.2 (alteration in original) (quoting United States v.
Brooks, 174 F.3d 950, 958 (8th Cir. 1999)) (acknowledging our intracircuit split
regarding the proper standard of review and stating we are bound by Brooks, the
earliest opinion in the split, to review for clear error). This finding “will stand ‘unless
the decision is unsupported by substantial evidence, is based on an erroneous view of
the applicable law, or in light of the entire record, we are left with a firm and definite
conviction that a mistake has been made.’” United States v. Walker, 688 F.3d 416,
420-21 (8th Cir. 2012) (quoting United States v. Miller, 511 F.3d 821, 823 (8th Cir.
2008)).
Here, substantial evidence supports the district court’s finding that Jones’s
offense involved sophisticated means. Jones submitted partially blacked-out bank
statements, used undisclosed bank accounts, commingled his personal and business
accounts, and dealt in cash. He also stonewalled the IRS about SAM Packaging’s
accounts receivable, used multiple EINs for SAM Packaging, secretly operated
Mustang Innovation LLC, and refused to bill customers. Jones may not have taken
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any one overly sophisticated action, but his conduct formed a repetitive and
coordinated scheme to hide his assets from the IRS. See, e.g., United States v. Finck,
407 F.3d 908, 914-15 (8th Cir. 2005) (upholding sophisticated-means enhancement
where, as part of car-theft scheme, defendant falsified wire-transfer confirmations
received by seller, re-routed mail, operated in multiple states, and lied about owning
a winery). We therefore conclude the district court did not clearly err in imposing the
sophisticated-means enhancement.
III.
For the foregoing reasons, we affirm the sentence imposed by the district court.
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