United States v. Register
678 F.3d 1262
11th Cir.2012Background
- Register owned and operated CRB, used PrimePay to manage payroll; he was responsible for remitting withheld taxes to the IRS.
- From 2003Q1 through 2007Q4, $316,220 in federal income and FICA taxes were withheld but largely not paid to the IRS.
- Register falsified his personal tax returns for 2003–2006, generating W-2s with false withholding and claiming refunds ($4,444.50 for 2003; $7,479.13 for 2004; $6,689.12 for 2005; $10,780 for 2006).
- In 2005 and 2006 he added himself to the CRB payroll, falsely indicating withholding; he claimed refunds he was not entitled to.
- On December 8, 2010, Register was indicted on 13 counts of willful failure to pay over taxes (26 U.S.C. § 7202) and 4 counts of filing false tax returns (26 U.S.C. § 7206(1)); he pleaded guilty to all seventeen counts.
- The presentence report grouped the counts into two groups (failure to pay over as one group and filing false returns as another) and declined to group all counts together; the district court sentenced Register to 27 months and restitution, but this became the subject of the appeal which ultimately vacates and remands for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether all seventeen counts should be grouped under § 3D1.2(d). | United States contends grouping fails because offenses are not the same general type or harm. | Register argues counts are closely related and should be grouped under § 3D1.2(d) (or § 3D1.2(b)). | All counts must be grouped under § 3D1.2(d) and the sentence vacated and remanded. |
Key Cases Cited
- United States v. Harper, 972 F.2d 321 (11th Cir. 1992) (same general type and closely related offenses may be grouped under 3D1.2(d))
- United States v. Mullens, 65 F.3d 1560 (11th Cir. 1995) (illustrates grouping when offenses are integral to continuing scheme)
- United States v. McClendon, 195 F.3d 598 (11th Cir. 1999) (grouping considerations for offenses of similar nature)
- United States v. Ellisor, 522 F.3d 1255 (11th Cir. 2008) (procedural review standard for guideline calculations and grouping)
- Klay v. United Healthgroup, Inc., 376 F.3d 1092 (11th Cir. 2004) (guideline interpretation and abuse of discretion in grouping)