United States v. Neilson, 721 F.3d 1185

Neilson appeals a 30-month sentence for violating the omnibus clause of 26 U.S.C. § 7212(a).
District court applied U.S.S.G. § 2T1.1 (Tax Evasion) rather than § 2J1.2 (Obstruction of Justice) for the omnibus clause conduct.
Neilson admitted multiple actions: transferring property to trusts via third parties, misreporting to the IRS, sending frivolous IRS correspondence, proclaiming sovereignty, harassing IRS employees, and attempting to redeem tax debts with Bills of Exchange.
On appeal, the court reviews de novo which guideline is most appropriate for the stipulated conduct.
Court concludes the conduct is more akin to tax offenses under § 2T1.1; rejects arguments based on § 2J1.2 and on Gunwall (unpublished).
Sentence is AFFIRMED.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Which guideline is most appropriate for omnibus clause conduct?	Government supports § 2T1.1.	Neilson argues § 2J1.2 is more appropriate.	§ 2T1.1 is most appropriate.
Whether the court properly categorized the conduct as more akin to tax offenses than obstruction of justice.	Neilson contends conduct fits § 2J1.2.	Neilson emphasizes obstruction is more fitting.	Conduct more akin to § 2T1.1; § 2J1.2 not controlling.
Whether the district court’s reasoning errors affect the result given proper de novo review.	Govern ment asserts no error affects outcome.	Neilson argues errors may undermine the choice of guideline.	Any alleged errors do not affect the correctness; result affirmed.
Does unpublished Gunwall support applying § 2J1.2 over § 2T1.1 here?	Gunwall could be read to support § 2J1.2.	Gunwall is inapplicable or distinguishable.	Gunwall distinguished; not controlling; § 2T1.1 remains appropriate.

United States v. Fortier, 180 F.3d 1217 (10th Cir. 1999) (guideline selection between 2T1.1 and 2J1.2; de novo review standard)
United States v. Wright, 642 F.3d 148 (3d Cir. 2011) (illustrates method for choosing applicable guideline when conduct spans multiple guidelines)