UNITED STATES оf America, Plaintiff-Appellee v. William Fielding JONES, Jr., Defendant-Appellant.
No. 14-1327.
United States Court of Appeals, Eighth Circuit.
Submitted: Nov. 14, 2014. Filed: March 3, 2015.
778 F.3d 1056
Before BYE, SHEPHERD, and KELLY, Circuit Judges.
In Alleyne v. United States, — U.S. —, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), the Supreme Court ruled that any fact that increases the mandatory minimum sentence for a crime is an element of the crime that must be either admitted by a defendant or submitted to a jury. However, the Court noted that in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), it had “recognized a narrow exception to this general rule [which requires elements of a crime to be found by a jury] for the fact of a prior conviction.” Alleyne, 133 S. Ct. at 2160 n. 1 (2013). The Court in Alleyne specifically noted that it was not overruling Almendarez-Torres and was leaving the “fact of prior conviction” exception intact. Id.
Cole argues that whether each of his convictions were for crimes committed on different occasions is а question of fact, distinct from the question of whether the convictions exist, which must be found by a jury under Alleyne. However, this court has already addressed this type of challenge and hаs ruled that the determination of whether prior felonies occurred on separate occasions does not require “findings of fact beyond the mere fact of a prior conviction.” United States v. Evans, 738 F.3d 935, 936 (8th Cir. 2014) (summarizing the holding of United States v. Wilson, 406 F.3d 1074, 1075 (8th Cir. 2005), abrogated on other grounds by United States v. Miller, 305 Fed. Appx. 302 (8th Cir. 2008)). Our circuit is not alone in reaching this conclusion. See, e.g., United States v. Dantzler, 771 F.3d 137, 144 (2d Cir. 2014) (“Indeed, our precedent makes clear that a sentencing judge‘s detеrmination of whether ACCA predicate offenses were committed ‘on occasions different from one another’ is no different, as a constitutional matter, from determining the fact of those convictions.“); United States v. Burgin, 388 F.3d 177, 186 (6th Cir. 2004) (The fact “that prior felony convictions ... were committed on different occasions ... need not be pled in an indictmеnt, submitted to a jury, and proved beyond a reasonable doubt.“)
Accordingly, we affirm the judgment of the district court.
James E. Felman, Kynes, Markman & Felman, P.A., Tampa, FL, argued (Katherine Earle Yanes, on the brief), for appellant.
Kathleen D. Mahonеy, Asst. U.S. Atty., Kansas City, MO, argued (Tammy Dickinson, U.S. Atty., on the brief) for appellee.
OPINION
SHEPHERD, Circuit Judge.
William Fielding Jones, Jr. pled guilty to tax evasion and now appeals the sen-
I.
Jones owned a company called SAM Packaging. Between Fall 2009 and Fall 2010, Jones tоok numerous actions to avoid paying the several hundred thousand dollars he owed in back taxes for the years 2006 to 2008. For instance, Jones refused to provide the Internal Revenue Service (“IRS“) with his bank statements, and when he later did submit bank statements, he blacked parts of them out. He submitted IRS Forms 433-A and 433-B (financial disclosure forms relating to individuals and businesses, respectively) in Fall 2009, disclosing two bank accounts at Mutual of Omaha Bank, but failing to disclose an account at Community America Credit Union (“CACU“). He subsequently oрened a second CACU account. When he submitted updated Forms 433-A and 433-B in 2010, he again disclosed his accounts at Mutual of Omaha Bank but not his accounts at CACU. He simultaneously dirеcted his financial activity to the undisclosed CACU accounts.
When the IRS levied on one of Jones‘s accounts at Mutual of Omaha Bank, it found the account was nearly empty. Jones also commingled his personal and business accounts, prompting the IRS to levy on his business accounts. The IRS revenue officer assigned to Jones‘s cаse explained it was “a very rare thing” to levy on a taxpayer‘s business accounts. After the IRS levied on Jones‘s accounts, he began dealing in cash, keeping bеtween $10,000 and $15,000 per month for personal expenses. In Fall 2010, when Jones
Jоnes also refused to turn over SAM Packaging‘s accounts receivable and told the IRS he would terminate the business before doing so. In 2010, he informed the IRS that SAM Packaging had been “suspended” and he was unemployed. In reality, Jones had started a new company, Mustang Innovation LLC, without notifying the IRS. This allowed Jones to secretly continue doing business under his SAM Packaging contracts as Mustang Innovation LLC. In Fall 2010, when the IRS summonsed two of Jones‘s customers, it learned he had performed work without billing them, thus preventing the IRS from levying on his accounts receivable. Jones additionally listed multiple Employer Identification Numbers (“EINs,” which are numbers the IRS issues to identify businesses) for SAM Packaging. He used the correct EIN on SAM Packaging‘s bank accounts, but used a former employee‘s social security number on corporate tax returns he submitted to the IRS.
Jones pled guilty to tax evasion, in violation of
II.
Jones contends the district court erred in enhancing his sentence because his actions were typical of tax evasion offenses and did not make detection of his offense more difficult. We disagree.
The Guidelines call for a two-level increasе of the base offense level if the tax evasion offense “involved sophisticated means.”
Here, substantial evidence supports the district court‘s finding that Jones‘s offense involved sophisticated means. Jones submitted partially blacked-out bank statements, used undisclosed bank accounts, commingled his personal and business accounts, and dealt in cash. He also stonewalled the IRS about SAM Packaging‘s accounts receivable, used multiple EINs for SAM Packaging, secretly operated Mustang Innovation LLC, and refused to bill customers. Jones may not have taken any one overly sophisticated action, but his conduct formed a repetitive and coordinated scheme to hide his assets from the IRS. See, e.g., United States v. Finck, 407 F.3d 908, 914-15 (8th Cir. 2005) (upholding sophisticated-means enhancement where, as part of car-theft scheme, defendant falsified wire-transfer confirmations received by seller, re-routed mail, operated in multiple states, and lied about owning a winery). We therefore concludе the district court did not clearly err in imposing the sophisticated-means enhancement.
III.
For the foregoing reasons, we affirm the sentence imposed by the district court.