UNITED STATES of America, Plaintiff-Appellee, v. Curtis L. MORRIS, Defendant-Appellant.
No. 12-1474
United States Court of Appeals, Tenth Circuit
July 28, 2014
753 F.3d 712
II. CONCLUSION
We AFFIRM the district court‘s dismissal of the complaint.
Peter Craig Silva, Esq., Williams, Porter, Day & Neville, Casper, WY, for Defendant-Appellant.
Before BRISCOE, Chief Judge, HOLLOWAY*, Senior Judge, and PHILLIPS, Circuit Judge.
GREGORY A. PHILLIPS, Circuit Judge.
The evidence at trial proved that Curtis L. Morris played an integral part in a tax-fraud conspiracy. Although complicated in its implementation, the basic premise of the conspiracy‘s scheme was fairly simple: Morris would claim nonexistent tax withholdings on tax returns, and, ideally for the conspirators, the Internal Revenue Service (IRS) would then pay a refund when the tax withholdings were greater than the tax liability. In all, he fraudulently prepared tax returns that led the IRS to pay out more than $2.2 million in undeserved tax refunds. After the jury convicted him, the district court varied downward and sentenced him to 120 months in prison. Morris now challenges his conviction and sentence. We conclude that the district court committed no error and affirm.
BACKGROUND
Morris has a bachelor‘s degree in accounting and had long worked for various businesses as a bookkeeper or accountant. He also operated a side business preparing tax returns for individuals. Through this side business he prepared returns that misused Form 1099-OID to help clients obtain unjustified tax refunds.1 The IRS requires financial institutions to generate Form 1099-OID if they issue or hold certain investments for their clients. See generally I.R.S. Publication 1212, 2013 WL 6859821 (Dec. 20, 2013). In this circumstance, the institutions then send the form to the IRS and also to the taxpayer to enable the taxpayer to report income and income tax withheld from those investments. Id. at *12.
Morris fabricated Forms 1099-OID for his clients to deceive the IRS into believing that the forms had originated from various financial institutions. Although these financial institutions had indeed lent Morris‘s clients money for mortgages, car loans, and credit cards, they had not held any investment for the clients that required a Form 1099-OID. Despite this, Morris‘s falsified Forms 1099-OID that reported his clients’ outstanding debt with the institutions as income and income tax withheld. Next, he prepared and filed tax returns with the fabricated Forms 1099-OID attached, claiming false tax withholdings.
The scheme worked when the IRS matched the withholdings claimed in the tax returns to the Forms 1099-OID and paid refunds after being fooled into believing that more taxes had been withheld than required. For his services, Morris charged a modest fee, but requested 1% of the refund from two clients and actually received that amount from one of them. In total, Morris prepared Forms 1099-
By July 2009 the game was up. An IRS team led by Agent Greg Flynn secured a warrant and searched Morris‘s house. During the search, Morris agreed to answer Agent Flynn‘s questions. Agent Flynn asked about Morris‘s personal use of Forms 1099-OID: “I asked Mr. Morris, Sir, why do you think the Internal Revenue Service owes you $74,000? He replied, ‘You don‘t.‘” R. vol. 6, at 1481. Morris admitted that he, not the financial institutions, had prepared Forms 1099-OID and that he lacked authority to do so. He also said he‘d individually filed his 2008 return with falsified Forms 1099-OID “to keep his wife out of harm‘s way.” Id. at 1492. Finally, Morris told Agent Flynn that, although he believed that he was owed the tax refunds, his “preparation of the Forms 1099-OID without the authority of banks or creditors was wrong.” Id. at 1517.
Eventually, Morris was arrested, and a grand jury returned a 28-count superseding indictment against him and two others—Richard Kellogg Armstrong and Larry Ray Hall. The indictment charged Morris with three counts of mail fraud in violation of
In the ensuing joint trial, the jury convicted both Armstrong and Morris of all counts charged. The district court sentenced Morris to 120 months in prison. Morris now appeals his conviction and sentence. Now we turn our discussion to the facts relevant to his challenges.
1. Armstrong‘s Statements During Trial
Armstrong chose to represent himself at trial. Although he wasn‘t combative with the district court, he repeatedly made non-responsive and nonsensical remarks when the court sought his comments as pro se counsel. From the beginning, Armstrong attempted to present some sort of procedural defense to the charges against him. In his opening statement, Armstrong began:
Good morning, ladies and gentlemen of the jury. I conditionally accept these proceedings on proof of claim that I am not here today as the paramount security interest holder in all property and collateral, both registered and unregistered, belonging to Richard Kellogg Armstrong appearing specially, not generally, and on proof of claim that there is not a notice before this Court to continue this public proceedings [sic] pending completion of the ongoing private administrative record which, when completed, will have the likelihood to set off, settle, and resolve this matter without wasting valuable public resources.
I now move this Court to continue these proceedings, these public proceedings, for 60 days to resolve the matter privately. Thank you.
R. vol. 6, at 34.
Armstrong repeated this “proof of claim” mantra when asked for his position on objections and the introduction of evidence. Almost every time Armstrong made a remark of this variety, the court cut him off. Eventually, the court “en-
Undeterred, Armstrong continued to bring up “proof of claim” and alleged that the court was forcing him to answer under duress:
Your Honor, so I am not in contempt of court, I conditionally accept on proof of claim I‘m not in contempt. I will say whatever you want me to say or do, whatever you want me to do under threat of duress and coercion, and I will sit down and be quiet.
Id. at 568. The court addressed Armstrong‘s behavior outside the hearing of the jury and warned Armstrong that he would be held in contempt if he continued to make irrelevant comments. In all, the court found Armstrong in contempt ten times but never in the jury‘s presence.
Before trial, Morris had unsuccessfully moved for severance, arguing generally that a pro se codefendant‘s potential “to commit frequent and serious missteps at trial” would undermine his defense. R. vol. 1, at 310. Morris renewed his severance motion three times during trial, but the district court denied his repeated requests. In doing so, the court noted the protective measures it had taken to lessen any effect Armstrong‘s self-representation might have on Morris: the court appointed standby counsel, it advised Armstrong that he would be held to the rules of law and evidence, and it instructed the jury that it couldn‘t consider as evidence Armstrong‘s comments while acting as his own attorney.
2. Lay Testimony of Armstrong‘s Accountant
The government called Kenneth Chafin as a lay witness. Chafin had worked as a Certified Public Accountant for 30 years and had prepared Armstrong‘s taxes for 20 years before Armstrong took his business to Morris. Chafin testified that in mid-December 2008 Armstrong emailed him about using Form 1099-OID to recover debts that the government supposedly owed taxpayers. Armstrong boasted that he had recovered $1.6 million from the IRS using Form 1099-OID and suggested that Chafin adopt the practice as well. Concerned, Chafin sent Armstrong an email explaining why he believed the scheme was illegal and advising Armstrong to return all of the funds. In the email, Chafin warned of potential criminal penalties:
Regardless of your opinion or interpretation, the courts will authorize the United States to confiscate your assets to repay the funds they sent you and may criminally prosecute you as well. I can guarantee that the Treasury Department will criminally prosecute the promoters of this arrangement and will probably criminally prosecute the accountant who prepared your tax returns.
Id. at 1175.
At trial, Chafin testified about this email exchange. He explained that he had decided to warn Armstrong because he had prepared Armstrong‘s original returns—which Morris later amended and refiled under the Form 1099-OID scheme. He knew of no basis for the claimed refunds. He also testified that he had found nothing supporting the legality of Armstrong‘s use of Form 1099-OID in IRS publications, and further that the IRS‘s paying the refunds didn‘t mean the IRS thought the tax return was correct.
On cross-examination, Chafin acknowledged that a hypothetical taxpayer who in good faith files a tax return and receives a refund is entitled to keep that money until the IRS says otherwise. On redirect, Chafin testified that a tax preparer who knowingly files a false return acts criminally. When asked if being an accomplice
3. Closing Arguments
One of Morris‘s defenses was that the IRS had pursued his prosecution out of anger for mistakenly paying out refunds. His counsel began his opening statement as follows: “Mr. Morris sits here today because of the incompetency of the Internal Revenue Service of paying out substantial refunds to individuals who should have been flagged and should not have been paid.” Id. at 23. He blamed the prosecution on the IRS‘s being “mad because something broke down” within the agency. Id. at 24.
In closing, Morris argued that the IRS had unfairly targeted him because of its anger at having paid out public funds: “They aren‘t happy that they used our money and paid Mr. Armstrong a lot of money. They‘re not happy about it.” Id. at 2127 (emphasis added). He concluded as follows:
Mr. Morris is not guilty, and despite the fact that the Government is not happy about paying out a lot of money, our money, and the fact they may not be able to find his money or some of the other individuals’ money, that doesn‘t mean their anger should be directed toward this defendant and that he‘s guilty.
Id. at 2146-47 (emphasis added).
In rebuttal closing, the government argued that Morris and his complicit clients had ignored reality to rationalize their fraudulent refunds:
If they get the money ... they rationalize it and say, you know what? I am owed that money. Just like that case, in this case, if they get the money from the man, they say, you know, it‘s the IRS. They‘re a big organization. It‘s their mistake. They should go after the banks anyway. So they rationalize it that way. They say to themselves, all I did was get one over on the man.
Well, ladies and gentlemen of the jury, the man is you. The man is you. The man is me. The man is all of us. And what these people are doing at the end of the day is trying to get one over on us.
I ask you at this point don‘t let them do it again. Hold them criminally accountable by doing the only thing you can in this case, speaking with one voice and returning an indictment [sic] holding these defendants accountable. Thank you.
Id. at 2159-60.
Four days later—the same day the jury returned its verdict—Morris filed an objection to the government‘s rebuttal closing, contending that the government had argued “that jurors should take into account the fact that their tax dollars had been misappropriated by Mr. Morris.” R. vol. 1 at 1033. He alleged that this constituted a “naked appeal to the personal interests of the jury” and that the government‘s statements improperly asked the jury to convict “on the need to protect society rather than the facts of the case.” Id. at 1033. The court denied this motion because the government‘s remarks “addressed with precision Mr. Morris‘s closing argument suggesting that the government
4. Sentencing
The United States Probation Office for the District of Colorado prepared a Presentence Investigation Report (PSR). The PSR calculated a total offense level of 35.3 This total resulted from a base offense level of 7 together with another 28 levels from four guideline enhancements: 22 levels because the intended loss was over $20 million (
Morris objected to all of the recommended enhancements except for his use of a special skill. He also requested a downward variance based on the
DISCUSSION
Morris raises five issues on appeal. First, he claims that the district court abused its discretion by denying his severance motions. Second, he argues that Chafin testified as an expert without having been disclosed or certified as one, and, further, that Chafin improperly testified that Morris was guilty of fraud. Third, he complains that the government committed prosecutorial misconduct during closing argument by “inflaming the passions and prejudice of the jury.” Appellant‘s Br. 29. Fourth, he challenges the procedural and substantive reasonableness of his sentence. And fifth, he claims that these errors—even if harmless standing alone—denied him a fair trial when considered cumulatively. We address and reject each argument in turn.
1. Severance
We review the denial of a severance motion for abuse of discretion. United States v. Clark, 717 F.3d 790, 818 (10th Cir. 2013). In considering whether an abuse occurred, we keep in mind the general rule that persons indicted together should be tried together. Zafiro v. United States, 506 U.S. 534, 537 (1993); United States v. Evans, 970 F.2d 663, 675 (10th Cir. 1992). This rule applies most strongly in conspiracy cases. United States v. Pursley, 577 F.3d 1204, 1215 (10th Cir. 2009) (“[W]e recognize a presumption in a conspiracy trial that coconspirators charged together preferably should be tried together.“); Evans, 970 F.2d at 675. Accordingly, we won‘t disturb the district court‘s denial of severance absent a “strong showing of prejudice.” Evans, 970 F.2d at 675. “Prejudice occurs when there is a serious risk that a joint trial will compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” United States v. Edwards, 69 F.3d 419, 434 (10th Cir. 1995) (internal quotation marks omitted). It isn‘t enough “that separate trials might have offered a better chance for acquittal of one or more of the accused.” Evans, 970 F.2d at 675 (internal quotation marks omitted).
Generally, when reviewing a denial of a severance motion, we evaluate the non-exhaustive McConnell factors to determine whether a district court has abused its discretion:
- the likelihood that the co-defendant would in fact testify at the movant‘s severed trial and waive his Fifth Amendment privilege;
- the significance of the testimony in relation to the defendant‘s theory of defense;
- the exculpatory nature and effect of such testimony;
- the likelihood that the co-defendant‘s testimony would be impeached;
- the extent of prejudice caused by the absence of the testimony;
- the effect of a severance on judicial administration and economy; [and]
- the timeliness of the motion.
United States v. McConnell, 749 F.2d 1441, 1445 (10th Cir. 1984). But Morris fails to address these factors. See Clark, 717 F.3d at 818-19 (affirming a severance denial, in part, because appellant “offer[ed] nothing [under the McConnell factors] that would permit us to meaningfully evaluate the district court‘s severance decision“). Here, the only McConnell factor weighing in Morris‘s favor is his timely moving for severance. But a separate judicial administration factor weighs against him—two lengthy trials wouldn‘t serve the interest of judicial economy.
Rather than address the McConnell factors, Morris argues that the district court abused its discretion, not because of prejudice to a specific trial right, but because Armstrong‘s repeated legally irrelevant statements denied him a fair trial. He asserts that Armstrong “engender[ed] contempt with the court and also the jury,” Appellant‘s Br. 22, and that the jury undoubtedly traced Armstrong‘s “aberrant behavior and thinking” back to him, id. at 23. The prejudice, in other words, was that “[t]he jury lumped Mr. Morris with Mr. Armstrong as a ridiculous tax protester.” Id. at 24. He contends that the jury‘s verdict proves as much because he and Armstrong “were both found guilty of every single charge.” Id.
We agree with Morris that Armstrong didn‘t make cogent legal arguments and that he “did nothing to bolster the defense.” Id. at 22. Perhaps Armstrong even engendered the contempt or frustration of the jury despite the court‘s disciplining him outside the jury‘s presence. But even if Armstrong appeared “ridiculous,” it doesn‘t follow that the jury found Armstrong guilty as a result, and it‘s even more of a stretch to speculate that the jury somehow found Morris guilty because of his codefendant‘s efforts. By Morris‘s own admission, Armstrong‘s remarks throughout trial were “meaningless,” id. at 23—they may not have bolstered Morris‘s defense, but they didn‘t undermine it. Armstrong never suggested that Morris had
The jury‘s verdict doesn‘t lead us to a different conclusion. We see strong evidence in the record proving that both Morris and Armstrong were guilty of the crimes charged. Morris implicated himself in the crimes charged when questioned by Agent Flynn during the search of his home. The jury‘s convicting both Morris and Armstrong of all counts charged doesn‘t persuade us that the joint trial prejudiced Morris.
Finally, the record shows that the district court minimized any prejudice to Morris that may have resulted from Armstrong‘s self-representation. Apart from silencing and disciplining Armstrong when appropriate, the court gave limiting instructions. See Zafiro, 506 U.S. at 540 (“[L]imiting instructions, often will suffice to cure any risk of prejudice.“). The court instructed the jury that it could decide the case based only on the evidence, that statements by counsel and Armstrong (including opening statements and closing argument) weren‘t evidence, and that in reaching separate verdicts the jury was to consider the evidence against each defendant. We presume that a jury follows the instructions of the court. United States v. Fleming, 667 F.3d 1098, 1106 (10th Cir. 2011).4 Accordingly, even if Armstrong‘s comments were potentially prejudicial, they didn‘t prevent the jury from making a reliable judgment about Morris‘s guilt. See United States v. Espinosa, 771 F.2d 1382, 1398-400 (10th Cir. 1985) (affirming the denials of severance and mistrial motions when a pro se defendant made an opening statement that allegedly incriminated his codefendants because the court gave similar limiting instructions).
2. Chafin‘s Testimony
At trial, Morris objected to some testimony offered by Kenneth Chafin, Armstrong‘s previous accountant, but failed to object to other testimony now challenged on appeal. For testimony admitted over Morris‘s objection, we review for an abuse of discretion. United States v. Brooks, 736 F.3d 921, 929 (10th Cir. 2013). For testimony first challenged on appeal, we review for plain error. Id. at 929-30; see
Morris attacks Chafin‘s testimony on four grounds. He contends that (1) Chafin testified in violation of a scheduling order of the district court; (2) the government
We begin by addressing Morris‘s first three challenges, all of which depend on whether Chafin testified as an expert witness—a point Morris implies but never asserts.5 According to the district court‘s scheduling order and
In three ways,
Morris doesn‘t explain how Chafin‘s testimony exceeded the scope of
Three times the district court overruled Morris‘s objections to Chafin‘s testimony now challenged on appeal.6 First, the district court overruled Morris‘s objection when the government asked Chafin if there was “any basis in what [he‘d] seen
Notably, Morris doesn‘t challenge the admission of Chafin‘s emails warning Armstrong that his use of Form 1099-OID was illegal. From our perspective, the challenged testimony communicated little more than did the emails themselves. Moreover, we think the opinions Morris challenges were based on Chafin‘s first-hand perceptions as Armstrong‘s tax preparer of 20 years, not on his specialized accounting knowledge. See Ryan Dev. Co., L.C. v. Ind. Lumbermens Mut. Ins. Co., 711 F.3d 1165, 1171 (10th Cir. 2013) (citing First Annapolis Bancorp, Inc. v. United States, 72 Fed. Cl. 204, 207 (2006) (“[A] lay witness accountant may testify on the basis of facts or data perceived in his role as an accountant based on his personal knowledge of the company.“)). The government‘s questions asked Chafin to explain his thinking in drafting the warning emails to Armstrong and to shed light on whether Armstrong knew that the scheme was illegal.
Admittedly, the government proceeded to elicit more general testimony about Armstrong‘s conduct as it related to tax law—questions that arguably called for opinions beyond the experience of a lay witness. For example, the government asked Chafin if the concept of tax withholding was difficult for tax preparers to understand and to explain the IRS‘s position about taxpayer refunds through use of Forms 1099-OID. In both of these instances, however, Morris objected and the government withdrew its questions. The district court sustained the balance of Morris‘s objections to Chafin‘s testimony without exception.7 In fact, the court went out of its way to exclude certain testimony under
We turn now to Morris‘s argument that “Mr. Chafin cannot opinion [sic] that what Mr. Morris did was fraud as an essential element of the crimes or that if he, Mr. Chafin, did what Mr. Morris did that
Morris challenges this aspect of Chafin‘s testimony by comparing it to testimony disallowed in United States v. Banks, 262 Fed. Appx. 900 (10th Cir. 2008). There, the district court had allowed lay testimony from a police officer about his training and experience in investigating drug-trafficking and about the opinions he had reached about the presence of items found in Banks‘s apartment. Id. at 906. The Banks court concluded that the police officer‘s testimony exceeded the scope of
Because we have already determined that Chafin‘s testimony didn‘t violate
Morris nonetheless says that lay witness testimony can improperly extend to an ultimate issue when the witness testifies as a “thirteenth juror.” Appellant‘s Br. 28-29. We will accept this much for the sake of argument, but we can‘t accept that Chafin usurped the role of the jury here. Unlike the police officer in Banks, Chafin didn‘t testify as to Morris‘s guilt. He merely testified that he believed it was illegal to falsify tax documents. We think this testimony was helpful to the jury, even if it stated the obvious. See United States v. Parris, 243 F.3d 286, 289 (6th Cir. 2001) (upholding a lay witness‘s char-
In any event, Morris‘s alleged errors wouldn‘t warrant reversal even if we were to find violations of
3. Prosecutorial Misconduct
Morris claims that the government‘s closing argument was improper. He challenges the following remarks the prosecutor made about Morris and Armstrong and their view of the IRS:
If they get the money ... they rationalize it and say, you know what? I am owed that money.... they say, you know, it‘s the IRS. They‘re a big organization. It‘s their mistake. They should go after the banks anyway. So they rationalize it that way. They say to themselves, all I did was get one over on the man.
Well, ladies and gentlemen of the jury, the man is you. The man is you. The man is me. The man is all of us. And what these people are doing at the end of the day is trying to get one over on us.
R. vol. 6, at 2159-60. With these comments, Morris contends the government implied that everyone, including the jury, was “the man” Morris and Armstrong meant to defraud. This, he says, inflamed the passion of the jurors and invited them to decide the case based on pecuniary or personal interest rather than the evidence. In his view, the comments were so improper that they affected the fairness of his trial and warrant reversal.
We review this challenge for plain error because Morris didn‘t contemporaneously
In this case, the prosecutor drew a connection between the IRS and taxpayers. In doing so, the prosecutor implied that stealing from the IRS, “the man,” amounted to stealing from everyone—the jury included. Potentially, these general types of comments could be improper. See, e.g., United States v. Palma, 473 F.3d 899, 902 (8th Cir. 2007) (“Remarks invoking the individual pecuniary interests of jurors as taxpayers are universally viewed as improper.“).
However, “we must view the statement in context.” Fleming, 667 F.3d at 1105. Considering the government‘s statements in context here persuades us that they weren‘t improper. Importantly, twice in his closing argument—which of course preceded the government‘s rebuttal argument referencing “the man“—Morris blamed the IRS for any mistaken use of “our money.” R. vol. 6, at 2127, 2146. In a sense, Morris himself sought to inflame the passions of the jury against the IRS because the IRS had lost taxpayer dollars—“our money“—i.e. the jury‘s dollars too. Morris can‘t now fault the government for arguing that he was to blame for this same communal loss.12 See United States v. Young, 470 U.S. 1, 12 (1985) (“[T]he reviewing court must not only weigh the impact of the prosecutor‘s remarks, but must also take into account defense counsel‘s opening salvo.“). In cases where the defendant first broaches a topic, we afford prosecutors considerably more latitude. Fleming, 667 F.3d at 1105.
Alternatively, even had the prosecutor gone too far, we don‘t believe his comments affected the outcome of trial or otherwise amounted to unfair prejudice. United States v. Olano, 507 U.S. 725, 735 (1993) (“Normally ... the defendant must make a specific showing of prejudice to satisfy the ‘affecting substantial rights’ prong of
4. Sentencing
“On appeal, the district court‘s sentence is reviewed for reasonableness under an
Second, “[a]ssuming that the district court‘s sentencing decision is procedurally sound,” we turn to substantive reasonableness, which we review for an abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). The sentence must fall within the range of permissible choice. United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007). “The court of appeals may, but is not required to, presume that a within-Guidelines sentence is reasonable.” Peugh, 133 S. Ct. at 2080. We have held that this rebuttable presumption applies to below-Guidelines sentences as well. United States v. Balbin-Mesa, 643 F.3d 783, 788 (10th Cir. 2011).
Procedural Reasonableness. Procedural error “relates to the method by which the sentence is calculated,” including calculating the Guidelines range. Lente, 647 F.3d at 1030 (internal quotation marks omitted). Morris claims that the district court incorrectly calculated his Guidelines range by erroneously applying enhancements for (1) his intended amount of loss, (2) his using sophisticated means, and (3) his obstructing justice. We address each challenge in turn.
First, after finding that the offense involved more than $20 million in intended losses, the district court applied a 22-level enhancement under
We reject Morris‘s contention that the district court should have calculated his sentence based on actual loss. Section
Furthermore, we lack jurisdiction to consider Morris‘s argument that the circumstances of his case warranted a downward departure. See Fonseca, 473 F.3d at 1112. “[T]his court has no jurisdiction to
Second, the district court applied a two-level enhancement because the offense involved “sophisticated means” under
We disagree. From start to finish, the mechanisms by which Morris defrauded the IRS were intricate. United States v. Weiss, 630 F.3d 1263, 1279 (10th Cir. 2010) (“The Guidelines do not require every step of the defendant‘s scheme to be particularly sophisticated“; rather, the enhancement focuses on the complexity of the whole scheme.). As the district court found, Morris used his specialized knowledge of the IRS to fabricate Forms 1099-OID from various financial institutions, creating an impression that his customers held investments subject to withholdings. He then used those forms to back up amended returns in which he had falsely claimed income tax withheld in amounts matching his customer‘s debts. The court also found that Morris took a number of steps to avoid the IRS‘s detection or discovery of the millions of dollars in fraudulent refunds. He carefully selected depository banks and instructed his customers to limit the amounts of their withdrawals. Viewing the conspiracy as a whole, we agree with the district court‘s finding that the complexity of the Form 1099-OID scheme supported the application of the sophisticated-means enhancement.
Morris cites United States v. Ambort, 405 F.3d 1109 (10th Cir. 2005), and attempts to distinguish it from his case even though he admits Ambort is “strikingly similar.” Appellant‘s Br. 38. But that case lends him no support—the striking similarities between that case and the one before us almost necessitate that the dis-
Third, the district court applied a two-level enhancement for obstruction of justice under
We disagree with Morris‘s reading of the Guidelines commentary. In the context of an obstruction-of-justice enhancement, the material-hindrance requirement only applies when the obstruction is contemporaneous with arrest.
Substantive Reasonableness. To determine a sentence‘s substantive reasonableness we consider its length given the case‘s circumstances and the
In attacking the substantive reasonableness of his sentence, Morris confines his argument to the
This argument does little to rebut our presumption of reasonableness. At sentencing, the district court not only spoke of the need to deter other tax protestors, but it also relied heavily on the nature and characteristics of the offense. See
CONCLUSION
For the reasons discussed, we affirm Morris‘s conviction and sentence.
GREGORY A. PHILLIPS
UNITED STATES CIRCUIT JUDGE
Notes
- Had Chafin‘s colleagues expressed a misunderstanding of the basic concept of income tax withholdings?
- Why Chafin had no interest in getting involved with Armstrong‘s OID arrangement?
- Was it a federal crime to be an accomplice to filing a false tax return?
- Was there anything gray in Chafin‘s view about what Armstrong was doing in getting refunds through OID forms?
- Did the IRS treat Armstrong‘s Form 1099-OID interpretation as a gray area?
- What remedies did a taxpayer have when he disagreed with the IRS?