*3 CLAY, Before KEITH and Circuit MAYS, Judges; and District Judge.** CLAY, J., delivered the opinion of the court, KEITH, J., in joined. which MAYS, 778), (p. D.J. a separate delivered concurring opinion.
CLAY, Judge. Circuit Defendant, Kosinski, Timothy was con- victed of one count of conspiring to de- fraud the Internal Revenue Service (“IRS”) currency and structure transac- tions to evade reporting require- IRS ments, in 371; violation of § 18 U.S.C. five counts of submitting false federal income returns, in violation of 26 U.S.C. 7206(1); § and one count of structuring a currency transaction to evade report- IRS ing requirements, in violation of 31 U.S.C. 5324(a)(3) 5324(d)(1). §§ was sentenced years to a term of three under probation supervision, with con- dition that the first six months be served in a halfway house and that the second six months be served under home confine- government ment. appeals the dis- trict court’s sentence. For the following reasons, VACATE the we district court’s sentence and REMAND this case to the for resentencing. BACKGROUND Gregory Davis, ARGUED: V. United Department Justice, States Washington, Defendant, dentist, founded Con T.J. DC, for Appellant. (“T.J.”) Lustig, Richard M. struction in 1992. United Office, Kosinski, Richard M. Lustig Law Birming- 127 Fed.Appx. 743-44 ham, MI, Cir.2005) for Appellee. ON BRIEF: (unpublished opinion). T.J. Davis, Gregory V. Alan Hechtkopf, United worked on projects construction with Mel- ** Jr., Tennessee, Mays, The Honorable Samuel H. sitting by designation. United Judge States District for the District Western currency to structure fraud IRS and Phillips Contract- (“Phillips”), Phillips
vin reporting re- transactions to evade IRS Between 1996 Thyssen Steel. ing and 371; § in violation of 18 U.S.C. quirements, $8,143,625 totaling were 1998, checks submitting false federal in- five counts of account and made on T.J.’s business drawn returns, violation of U.S.C. come tax in in deposited were Phillips, but payable structuring 7206(1); and three counts accounts. personal bank Defendant’s to evade IRS re- currency transaction money withdrew and his associates fendant in of 31 violation porting requirements, cash, multiple transac- engaging often 5324(d)(1). 5324(a)(3) §§ U.S.C. They concealed the day. single on a tions 16, 2003, found Defendant June making numerous money by of this flow *4 counts, but did not on the first seven guilty just un- $9,500, amount an of withdrawals three him on two of the struc- guilty find threshold of reporting IRS der 2003, 10, turing counts. On October May January 1995 and $10,000. Between using court sentenced Defendant with- his associates Defendant and calculate the sentencing guidelines to his various $7,676,000 in from cash drew range. The district applicable sentencing Although Defendant accounts. personal amount of Defendant’s court calculated the the full amount for tax deductions claimed of the by tax a evi- preponderance loss Phil- $8,143,625,indicating paid that he of Kosinski, at Fed.Appx. 127 dence. 750. cash, at least contractors lips and other court found that the offense The district paid Phillips to Con- $1,400,000was never to Defendant’s corresponding level tracting.1 applica- and that the amount was nineteen account used business Defendant T.J.’s range was an im- sentencing guideline ble performed at construction work pay for to thirty thirty-seven to prisonment term residence, home and his his vacation his The court awarded months. 1996 and 1998. house between mother’s resulting in departure fendant downward Kosinski, at 744-45. De- Fed.Appx. 127 impris- eighteen an level of and an offense for the con- claimed deductions fendant twenty-seven thirty- to range onment in his homes and performed work struction sentenced three months. Defendant was in- business mother’s house on T.J.’s his thirty imprison- month to two concurrent at least three occa- tax return. On come pay terms and also ordered ment sions, paid his construction Defendant $60,000 fine, $7,000 assessment, and in- $5,000 at 745. Al- in cash. Id. manager carceration costs. unclear though record somewhat appealed his conviction Defendant they payments, the date of these about grounds. on See Ko this Court numerous during peri- appear to have been made sinski, Fed.Appx. 127 at 743-44. On The 1995 to 1999. conspiracy: od 22, 2005, Court affirmed Defen March this by to the IRS money reported was never conviction, vacated the sentence dant’s but any party. the sen the district used because mandatory and 20, 2002, tencing guidelines returned “er grand June On roneously him on facts charging sentenced based against indictment an jury, in contravention of by not found conspiring to de- with one count him Contracting ap- tax returns IRS between 1995 and Phillips also with the Phillips 1. addition, Phillips maintained that financial pear engaged a number of to have suppliers pay for Phillips he used cash to construction irregularities. Payments made his material, having suppliers ever withholding but the denied any tax employees did not reflect payments. received cash Phillips Contracting did not file income
773 guidelines 543 U.S. and took offense level “as (2005).” L.Ed.2d starting point [a] S.Ct. Ko that anything [found] sinski, at sentencing guideline 750. The Court within range [the of] held that Defendant’s sentence violated six to months would be reasonable.” (J.A. 123) Booker because Defendant “was sentenced The district court sentenced De- on the amount of tax loss deter fendant years to three of probation super- court,” by vision, mined rather than with the condition that the first six jury. an amount found Id. at 751. halfway months be served in a house and “[wjithout The found that Court dis that the second six months be served un- trict factual court’s determinations of tax der home confinement. government loss, objected the offense level would be corre resentencing hearing argu- sponding ing to a sentence of 6 to 12 months.” the sentence was unreasonable. Id. This Court remanded the case to the 4, 2005, On November Defendant’s coun- resentencing. district court for sel filed a motion to correct Defendant’s 16, 2005, September hearing sentence. At a held on December resentencing hearing. court held a At the 15, 2005, the district acknowledged *5 resentencing hearing, government ar- that it went guidelines, over the which gued that Defendant’s offense level should $20,000 provide fine, for a by sentencing eighteen. The district court asked the $60,000 ato fine. The district government what the offense level would court also clarified its sentence: ifbe the Court was “limited to was what say Defendant’s Counsel: I want that (J.A. 104) jury charged and the found.” actually the Court if decided that [the response, government its conceded 10, offense were an 18 or it level] were that the offense level would be but you that using were the factors in 3553. argued that “after Booker ... sen- [the absolutely The Court: That’s true. And tencing can go court] still ahead and calcu- just would—I have not reread the —I guideline range guideline late a and sen- transcript. hope entire But I would that (J.A. 105) tence, only advisory.” but its I give great weight had said that I amount, respect With to the tax loss guidelines and a starting that’s district court stated: factors, point, and then I use the I have read the opin- Sixth Circuit then I come to a result. ion.... The certainly say Court did that is, Defendant’s Counsel: The result computa- [the court’s] district method of however, the guidelines, within and— error, tion of the tax loss was not clear The I that. Court: understand But as erroneous,
clearly plain It error. was Booker, obviously I far as understand okay, but then Sixth noted [the Circuit] guidelines, if it’s within the Ias un- [the court] that under Booker district Booker, per derstand it’s se reason- [tax loss] couldn’t consider that able. But it doesn’t mean that a sen- jurors] [the amount because ... wer- guidelines tence outside of the per is se specific en’t asked to find that unreasonable. amount.
(J.A. 122) added). (J.A. 137-38) added). (emphasis (emphasis The district The dis- court declined to calculate judgment or consider De- trict court entered its on Octo- fendant’s tax loss amount. The government ber 2005. The filed a timely appeal court concluded that it did not have au- notice of on November thority depart sentencing from the 2T4.1, § on the tax loss that under argues government appeal, amount, § A ten. 2T1.9. or set at U.S.S.G. is unreasonable.
Defendant’s that statutes reveals that dis- review of the relevant it contends specifically, More tax is not an element that it the amount of concluded improperly trict court offense, rather is relevant that Defendant’s but a tax loss amount could not consider guide- under the calculating to Defendant’s sentence not found 371; § 18 U.S.C. 26 U.S.C. guideline range. lines. See sentencing Defendant’s 5324(a)(3) 7206(1); §§ 31 U.S.C. that the district maintains government 5324(d)(1). to determine required court was it in and to use sentenc- of tax loss amount Admittedly, may ap have been ing, and asserts court to calculate propriate for the instructions followed improperly it in of tax loss and to use the amount calculating remand Circuit’s Sixth See, e.g., Booker. Unit sentencing before sentencing level fendant’s offense Nash, v. 439-440 ed States range. Cir.1999) (6th (finding properly calculated defendant’s DISCUSSION Chali, v. liability); see also United States Review I. Standard of Cir.2002) (un case). reviews However, This Court in light of published court for reasonable imposed by Booker, a district overwhelming case law author 261-62, 543 U.S. ness. ity resentencing appropri indicates that Harris, 738; S.Ct. United under a ate if a defendant is sentenced *6 (6th Cir.2005); 404, States 409 United sentencing regime F.3d mandatory guideline (6th Cir.2006). 537, 540 Cage, v. 458 F.3d if court enhances the de in the district court’s The Court reviews not fendant’s sentence based on factors sentencing guidelines of the terpretations by the defen proven jury to a or admitted finding Jones, for clear See, and its factual de novo v. 399 e.g., dant. United States Williams, (6th Cir.2005) (“[T]he 411 v. 640, error. States United F.3d 648-49 (6th Cir.2005); 675, where, United States F.3d 677 Amendment is violated under Sixth Cir.2003). (6th 416, Burke, scheme, F.3d 428 judicial v. 345 mandatory sentencing court’s to the district by The Court defers fact-finding, opposed to facts found guidelines to sentencing application jury, beyond increases the sentence the Charles, v. 138 the facts. States United which statutory maximum sentence Cir.1998). (6th 257, F.3d 266 solely the of the facts imposed on basis by jury in the verdict or admitted reflected Has Discretion II. The District Court defendant.”) (internal quotation marks or Consider Defen- to Calculate Paz, omitted); 405 F.3d Tax dant’s Loss (11th Cir.2005) (“[Ujnder Booker, 946, 948 jury case, right by to trial applicable sen- the Sixth Amendment In the instant mandatory in wider a set forth United is violated where tencing guideline is (“U.S.S.G.”) system a sentence is increased guidelines Sentencing Guidelines 2T1.9(a)(l). on facts the sen- of enhancement based 2T4.1 of because Section neither ad by judge levels found that were tencing forth offense guidelines sets by the express by mitted the defendant nor found amounts. based on original). “The dis jury.”) (emphasis relevant statutes indicates language of the facts judge-found trict court’s reliance on are either calculated that offense levels
775
to increase [a] defendant’s
under mandatory
sentencing guidelines regime.
mandatory guideline[s]
the Sixth
violate[s]
Thus, by making
determinations,
factual
Amendment.”
Stephens,
United States v.
“the district court did exactly what
(6th Cir.2005) (un-
385,
148
388
Supreme Court found to be a violation of
case)
published
added);
(emphasis
also
see
the Sixth Amendment in
Booker:
dis-
Pree,
855,
United States v.
408 F.3d
874-
trict court
engaged
independent fact-
(7th Cir.2005) (“The
75
Government con-
finding which enhanced Defendant’s sen-
cedes that
the district court committed
tence beyond the facts
by
established
error that
in treating
guide-
was
plain
jury verdict or admitted by Defendant.”
mandatory
lines as
enhancing
[defen-
Davis,
United
States v.
350
sentencing range
dant’s]
based on the
(6th Cir.2005).
In pertinent part,
this
fact.”)
findings
court’s
of
(emphasis add-
Court found that:
ed);
Harpole,
United States v.
Fed.
168
factually
[t]his case is
(9th Cir.2006)
indistinguishable
Appx.
(unpublished
from
case) (“Because
Booker itself and
resentencing
thus
[defendant] was sentenced
required.
Booker
mandatory
Guidelines,
under
was
Sentencing
by
convicted
judge-made
this
finding
possessing
of fact
grams
least 50
violated
Sixth
rights.”)
[defendant’s]
Amendment
cocaine. At sentencing,
added).
(emphasis
court determined that
possessed
Booker
at least
grams
cocaine
sen-
Thus,
in enhancing defendant’s
tenced him accordingly. Had Booker
proven
based on factors not
to a
been
jury’s
sentenced on the
finding
jury or
defendant,
admitted
“[t]he
haye
alone, the Guideline range would
district court
[does]
violate Booker [if]
been 210 to
Instead,
262 months.
guidelines
considered
advisory
to be
on the district
finding
court’s
that Book-
and not mandatory.” United States v.
possessed
cocaine,
er
more
Booker re-
Redmond,
(6th
188 Fed.Appx.
a sentence of 360 months. The
Cir.2006)
ceived
(unpublished case);
see also
Supreme Court
concluded
because
Anderson,
United States v.
187 Fed.Appx.
only
grams
argued
jury,
Cir.2006)
case).
(unpublished
*7
the sentence exceeded that authorized
Post-Booker, under
advisory
the
sentenc
by
jury
the
verdict and thus violated the
ing guideline regime, a sentencing en
case,
Sixth Amendment.
In this
Kosin-
hancement is
long
constitutional as
itas
is
ski
based on
sentenced
was
the amount
sup
rehable information and
on
ported by preponderance
a
of tax
by
of the
loss determined
the district
evidence.
Redmond,
776 super- (citations probation years to three fendant Kosinski, at FecLAppx. that the first six vision, the condition with omitted). sentenced Defendant Since halfway and in a house be served months sentencing guidelines mandatory a under un- months be served that the second six the court enhanced regime and government The confinement. a der home proven to factors not based on sentence hearing, argu- resentencing the objected at Defendant, this Court by or admitted jury was unreasonable. that ing the and original sentence Defendant’s vacated erred in district court find that the We resentencing. for remanded or it could not calculate concluding that hearing, resentencing At the tax loss amount. Defendant’s consider 1) court to asked the district government a amount as tax loss Defendant’s calculate judicial did not eliminate “Booker by preponderance a finding factual Coffee, 434 v. United States fact-finding.” 2) at evidence, Cir.2006). “It is clear F.3d turn, the dis eighteen. level offense that a district of this Circuit under law what the government asked the trict court findings factual may make its own court were be if the Court level would offense factors, and sentencing regarding relevant jury charged and to what was “limited determining factors consider those 104) (J.A. response, In its found.” sentence[.]” defendant’s that, under U.S. conceded government (6th Cir.2006). Gardiner, F.3d 2T1.9, would be the offense level S.G. case, erred In the instant ,.. Booker argued [the that “after but considering Defendant’s in believing go ahead and sentencing can still court] would violate the Sixth tax loss amount guideline guideline range calculate exer judge a trial Amendment. “[W]hen 105) (J.A. sentence, advisory.” only its but sen specific to select a cises his discretion that it could not court found range, the defen tence within a defined tax loss previously calculated consider determination right has no dant sentencing Defendant’s determine rele judge deems of the facts that tax loss guideline range because the 125 S.Ct. 548 U.S. vant.” charged in the indictment was not amount Thus, dis Booker does bar the jury beyond a found was not calculating and trict court from consider reasonable doubt: provided loss amount ing the tax court] [the Booker [U]nder advisory are used as sentencing guidelines tax loss amount of [the couldn’t consider mandatory. specifically, More and not determined under originally had enhance a district post-Booker, that’s guidelines] because sentencing upon facts sentence “based defendant’s *8 find; to was more than asked they by jury, provided do not found a or, they asked accurately, more weren’t required to do so.” consider themselves amount. specific find that (Cook, J., Davis, at concur 397 F.3d 352 Anderson, at 122) 187 (J.A. ring); see conclud- also the district court Since therefore, is, Defendant’s sentence or consider 521. that it could not calculate ed cal the district court amount, insofar as it offense level erroneous the tax loss took “while har 2T1.9, § culated Defendant’s “as as set forth U.S. S.G. that, under boring misapprehension anything that starting point [found] [a] Booker, [Defen not enhance could range [it] sentencing guideline of] [the within factors that upon dant’s] 12 be reasonable.” six to months would jury beyond a by the (J.A. 123) were not determined The district court sentenced
777
Gardiner,
3553(a)(4),
§
463 F.3d at
only
reasonable doubt.”
U.S.C.
but
as one factor
3553(a).”); Booker,
§
of several laid out in
461.
259,
(“Without
543
at
U.S.
record MAYS, concurring. Judge, District understand its not of or did not aware majority’s the conclusion agree I with sentencing from the depart to discretion must court’s sentence that district the court concluded The district guidelines. resen- remanded for and the case vacated authority depart to have it did not that the well-rea- also with tencing. agree I ap- guidelines, and sentencing the from vacating for the sen- explanation soned manda- as sentencing guidelines the plied However, I the because believe tence. at offense level sentencing Defendant tory, how the dis- majority explaining in erred not to court was bound The district ten. determine Defendant’s trict should court the sen- ten because go to offense level remand, respectfully I offer on advisory. are tencing guidelines this concurrence. the 738. Since at 125 S.Ct. 543 U.S. guide- sentencing the applied court district that majority has concluded “the The sen- mandatory, the district court’s lines required is not —but violated Booker. tence Defendant’s or tax to—calculate consider (Maj. op., p. sentencing. in Furthermore, loss amount” 777.) do Sentencing Guidelines support its sen which to state facts failed that discretion. district court give articulate the must “The district court tence. 2T1.9(a) explicitly instructs the sentence Section particular for the reasons the base of- judge calculate defendant’s to to to enable this Court imposed in order by “applying] greater” the fense level re meaningful in a reasonableness engage (1) using Jones, that result from the at the numbers 445 F.3d of the sentence.” view § 2T4.1 translate tax case, at to “the tax table [of list In the instant (2) level, setting or into an offense by the district amount provided characteristics] applica- 10. The the offense level at court, analysis, base any accompanying without level base offense explain: im tion notes “The the justify insufficient is using level tax [calculated is the offense our reasonableness posed, as renders Jackson, loss, ... if offense level is any] at 408 F.3d if impossible.” review Otherwise, of- Williams, the base greater than 10. 305; see also United (USSG 2T1.9, Cir.2005) (af com- is 10.” fense level 623-24 fact, Therefore, (n.2).) the trier of sentencing ment departure firming downward Jackson, required to determine the judge, here a is followed the district court where loss, judge the must sentencing defendant’s applicable the considered on offense level based analy calculate base a detailed guidelines, provided offense resulting If base level depart). amount. decision to support of its sis judge required is than remand, greater use is court should offense level. If greater base support apply its sen from the facts record level is ten resulting offense or base tence. less, required to set defen- judge is CONCLUSION level at ten. no base offense dant’s judge free to choose sentencing circumstance erred The district court reasons, determining base offense one we method foregoing For Defendant. *10 methods, level; compare he must use both results, greater. and choose the
Certainly, the district court would be resulting guidelines,
bound but fail- guidelines properly
ure to calculate the error. United States
would reversible Cir.2006). Davis,
v.
Having guidelines properly, calculated the
the district court then revisit the tax addressing
loss amount in 3553 fac- exercising
tors and its discretion.
CAREMARK, INC., a California
Corporation, Plaintif-
Appellant, GOETZ, capacity
David in his official as
Commissioner of the Tennessee
partment of Finance and Administra-
tion; Hickey, D. Jason in his official
capacity Deputy Commissioner of TennCare,
the Bureau of Defendants-
Appellees, America,
United
Intervenor-Appellee.
No. 05-6903. Appeals,
United States Court of
Sixth Circuit.
Argued: Oct. 2006.
Decided and Filed: March