United States v. Robert Mosher
493 F. App'x 672
6th Cir.2012Background
- Mosher was convicted in Case No. 1:07-cr-67 of fourteen counts of criminal contempt for disobeying court orders restricting tax advice and services; in Case No. 1:07-cr-86 he pled guilty to obstructing the IRS and tax evasion.
- The district court consolidated sentencing, imposing 51 months on contempt counts and 31 months on obstruction and tax evasion, with concurrent terms and restitution of $75,633 plus a $1,600 special assessment.
- Three-year supervised-release terms were imposed on each count with the same conditions, including mental-health treatment and cooperation with the IRS for past-due taxes and amended returns for 2001–2006.
- Mosher began supervised release on May 26, 2011; a probation-officer petition filed December 21, 2011 alleged nonpayment of restitution/assessments and failure to cooperate with the IRS or file amended returns while imprisoned and on release.
- At a January 23, 2012 hearing, Mosher acknowledged failure to file amended returns; the district court found guilt for failure to cooperate and to file amended returns, revoked supervised release, sentenced Mosher to 11 months, and reimposed supervised release with the original conditions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court abused its discretion in revoking supervised release | Mosher argues noncompliance arose from IRS document-recovery issues. | Mosher contends lack of access to documents excuses noncompliance. | No abuse of discretion; court favored diligence concerns and Mosher’s attempts to evade obligations. |
| Whether the sentence is substantively reasonable | Mosher says government fault over document return supports lower sentence. | Court properly weighed conduct, deterrence, and compliance expectations. | Within advisory-range and substantively reasonable given Mosher’s conduct and need to deter. |
| Whether the district court improperly delegated mental-health-treatment decisions to the probation officer | Order allowing treatment as directed delegated treatment decisions. | Language only delegated ministerial aspects, not initial decision to require treatment. | No plain error; district court’s condition upheld under existing authorities. |
Key Cases Cited
- Kirby v. United States, 418 F.3d 621 (6th Cir. 2005) (abuse-of-discretion standard for revocation of supervised release)
- Stephenson v. United States, 928 F.2d 728 (6th Cir. 1991) (definite and firm conviction standard for abuse of discretion)
- Bolds v. United States, 511 F.3d 568 (6th Cir. 2007) (deference to district court under Gall; presumptive reasonableness within guidelines)
- Gall v. United States, 552 U.S. 38 (Sup. Ct. 2007) (established standard for review of criminal sentences on appeal)
- Camiscione v. United States, 591 F.3d 823 (6th Cir. 2010) (two-part test: procedural soundness and substantive reasonableness; presumptively reasonable within range)
- Lapsins v. United States, 570 F.3d 758 (6th Cir. 2009) (application of reasonableness review to revocation sentences)
- Kingsley v. United States, 241 F.3d 828 (6th Cir. 2001) (plain-error standard for unobjected-to conditions)
- Peterson v. United States, 248 F.3d 79 (2nd Cir. 2001) (mental-health condition may be directed to probation office for ministerial duties)
- Allen v. United States, 312 F.3d 512 (1st Cir. 2002) (upholding mental-health condition delegated ministerial tasks)
- Miller v. United States, 341 F. App’x 931 (4th Cir. 2009) (affirmed mental-health treatment condition as directed by probation officer)