UNITED STATES of America, Plaintiff-Appellee, v. Thomas T. WOOD, Defendant-Appellant.
No. 09-4080.
United States Court of Appeals, Tenth Circuit.
June 24, 2010.
613 F.3d 698
DISCUSSION
The magistrate judge to whom the motion for attorney‘s fees was referred held that Mr. Smith was entitled to an award of $15,360.00, pursuant to
The magistrate judge explained clearly and succinctly why, in the circumstances of this case, Mr. Smith was entitled to an award of attorney‘s fees, and it further explained why the amount awarded was appropriate. We agree with that analysis.
The district court, in turn, considered Mr. Weston‘s objections to the magistrate judge‘s report and recommendation and explained why they lacked merit, and then it adopted the report and recommendation and granted the fee calculated by the magistrate judge. We affirm that decision, for substantially the reasons stated in the magistrate judge‘s report and recommendation, as adopted by the district court.
CONCLUSION
For the foregoing reasons, we AFFIRM the order of the district court.
Brian David Bailey, Alan Hechtkopf, Samuel Robert Lyons, Karen M. Quesnel, Esq., Timothy J. Stockwell, U.S. Department of Justice, Washington, DC, Carlie Christensen, Office of the United States Attorney, Salt Lake City, UT, for Plaintiff-Appellee.
Heather Harris, Scott C. Williams, LLC, Lawrence James Leigh, Parsons Behle & Latimer, Salt Lake City, UT, for Defendant-Appellant.
Before HENRY, MURPHY, and O‘BRIEN, Circuit Judges.
ORDER AND JUDGMENT*
ROBERT H. HENRY, Circuit Judge.
A jury convicted Thomas T. Wood of (a) one count of endeavoring to obstruct or
In this appeal, Mr. Wood contends that (1) the evidence is insufficient to support his
We are not persuaded by Mr. Wood‘s challenges to his
Mr. Wood is a lawyer in Salt Lake City. In his capacity as a private citizen, he admits that he has not paid taxes since the mid-1980s, claiming that his religious beliefs forbid him to do so. In April 1998, Mr. Wood acted as the attorney of record for William Lewis, a defendant, along with Glenn Ambort and John Benson, in a federal prosecution for defrauding the United States by impeding the lawful functions of the IRS and aiding and assisting in the preparation of false tax returns. In late 1998, in a separate matter, Mr. Wood began assisting “MyCor,” a Canadian investing business run by Corinne McNabb, as well as Mr. Ambort and Mr. Benson.
MyCor described its business model to its investors as a way of allowing tax-free investments in offshore bank accounts in a tax haven country. After the money in those offshore bank accounts was invested, the investment profits and principal were to be returned to the original investors through foreign-issued debit cards. Unknown to its investors, MyCor‘s actual business model resembled a Ponzi scheme, in which early investors were given a high monthly return, financed with investments made by subsequent investors.
On behalf of MyCor, Mr. Wood received more than $11 million in funds from investors and from Ms. McNabb, and then transferred those funds into a non-interest bearing account in the name of “The Family Foundation.” Mr. Wood had previously established this account to collect donations for the Goodmans, a family traveling the world to promote family values. The Family Foundation account was not identified with MyCor.
Of the $11 million in investment funds, Mr. Wood forwarded only about $1.5 million to Ms. McNabb. Mr. Wood spent approximately $5,786,381 of the remaining $9.5 million on behalf of Mr. Ambort and Mr. Benson, withdrawing the money from The Family Foundation account and moving it through foreign bank accounts opened in nominee names. Part of the $5,786,381 was used to purchase houses and to lease automobiles for Mr. Ambort, Mr. Benson, and their associates, using the nominee names for the titles. Another part of that sum was transferred to offshore debit card accounts of individuals who lived with Mr. Ambort and Mr. Benson; it was then used to pay Mr. Ambort‘s
A federal grand jury indicted Mr. Wood on one count of impeding the due administration of the tax code, in violation of
The presentence report (PSR) determined the total intended tax loss to be $1,083,373. See Rec. vol. 3, at 7, ¶ 28. It derived that figure by taking the IRS‘s assessment of the gross income figures for the tax years 1999-2001 for Mr. Ambort, Mr. Ambort‘s associates, and Mr. Wood—$5,416,868—and then calculating 20% of that total.
The $1,083,373 tax loss resulted in a base offense level of twenty-two. The PSR then added three two-level enhancements (for failing to report the source of income exceeding $10,000, using sophisticated means, and using special skills in a manner that significantly facilitated the commission or concealment of the offense). See id. at 8, ¶¶ 34-36.
With a criminal history category of I, the advisory United States Sentencing Guidelines (USSG) recommended imprisonment from seventy-eight to ninety-seven months. However, those figures exceeded the statutory maximum of sixty months for all three counts. Therefore, the PSR concluded, the recommended sentence under the Guidelines was sixty months. See
The PSR concluded that, in light of Mr. Wood‘s offense level, the minimum fine was $12,500 and the maximum was $125,000. It added that the court could impose a lesser amount, or waive the fine altogether, if Mr. Wood was unable to pay. See Rec. vol. 3, at 16, ¶ 70 (citing
After reviewing the PSR, the government filed a sentencing memorandum that calculated a slightly lower total tax loss—$1,078,057. See Rec. vol. 1, at 142. The government added that “[a] fine at the low end of the Guideline range is also appropriate.” Id. at 150.
At the sentencing hearing, the government urged the court to order Mr. Wood to pay $56,852 in restitution. It explained that this sum was “20 percent of the amount of expenditures that we could individually attribute to [Mr. Wood], on behalf of [Mr. Wood], and on behalf of his family, for those three years, ‘99, 2000, and 2001.” Rec. vol. 2, at 923.
The district court imposed a sentence of thirty-six months’ imprisonment, $56,852 in restitution, and a $250,000 fine. With regard to the fine, the court stated:
I find that you do have the ability to pay that. You have devoted your life to manipulating your money so that you don‘t have to pay taxes and you don‘t have to satisfy the obligations that other people have to do. I know that the [PSR] shows that your wife sold her house and has $200,000 that is her money. That may be legally correct. I don‘t know. Everything about your life tells me that you have hidden money and you have done things in a way that
keeps you from doing one little thing that we all have to do, maybe not a little thing, pay taxes.... I‘ll also impose restitution of $56,852 for taxes. I‘m not imposing any other restitution. I‘m imposing such a large fine, and I can‘t remember the last time I imposed such a large fine, because I think that it is the only way to get you to pay anything to the government. I have no confidence that you‘re ever going to pay your taxes. We‘ll put you on supervised release and one of the conditions is that you pay your taxes. Given your history I would be a fool to think you‘re not going to get through that year without paying taxes because that is what you do. That is what you have always done. You cannot in my view, and I don‘t see how you can get around this $250,000 fine, and it is a fine you have to pay. You have to pay it. Your property can be attached, a judgment can be obtained by the government.... We can get people attempting to collect money from you. I have no idea the amount of money that you have kept that was properly to be turned over to the United States government since the 1980s. It is probably quite a bit of money. You have been working as a lawyer most of that time....
Id. at 927-28. The court added that it was imposing a sentence within the Guidelines and had accepted the calculations of the PSR.
Counsel for the government then informed the court that the $250,000 fine was above the Guidelines’ recommended maximum amount and stated, “I will assume [the amount of the fine] is a departure from the [G]uidelines.” Id. at 936. The court responded:
Well, then let‘s put it within the [G]uidelines. I will do $100,000 on count one, $75,000 on count two and $75,000 on count three. Is that within the [G]uidelines? We‘ll keep this whole thing within the [G]uidelines.
Id. at 937. Neither the government nor Mr. Wood objected to the imposition of the $250,000 fine.
II. DISCUSSION
In this appeal, Mr. Wood argues that (1) the evidence was insufficient to support the
A. The evidence is sufficient to support Mr. Wood‘s § 7212(a) conviction.
Mr. Wood advances three challenges to the sufficiency of the evidence supporting his
We consider the sufficiency of the evidence de novo, viewing the evidence as a whole and in the light most favorable to the government and “asking whether any rational trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt.” United States v. Parker, 553 F.3d 1309, 1316 (10th Cir.2009) (internal quotation marks omitted). Our review is deferential to the jury‘s factfinding, and we must sustain Mr. Wood‘s con-
Under
In light of
1. The government was not required to prove that Mr. Wood was aware of an IRS action or investigation.
In challenging the sufficiency of the evidence, Mr. Wood first argues that
In United States v. Kassouf, 144 F.3d 952 (6th Cir.1998), a divided Sixth Circuit panel held that the language in
In our view, Kassouf is not persuasive. Soon after that decision was published, it was “limited to its precise holding and facts” by United States v. Bowman, 173 F.3d 595, 600 (6th Cir.1999). Bowman affirmed a
Additionally, Kassouf‘s reasoning is questionable. The terms of
Finally, Kassouf‘s holding has been rejected by other courts. For example, the Ninth Circuit has concluded that “the government need not prove that the defendant was aware of an ongoing tax investigation to obtain a conviction under
Accordingly, in light of the broad language in
2. The government established that the natural and probable effect of Mr. Wood‘s actions was to obstruct the operation of the Internal Revenue Code.
Next, Mr. Wood argues that “the facts simply do not support that the natural and
Mr. Wood‘s argument is based on an unduly narrow reading of the statute. As the Fourth Circuit has noted, even lawful actions may violate
Here, the alleged gaps in the government‘s evidence that Mr. Wood now emphasizes do not undermine the jury‘s finding that he “corruptly ... obstruct[ed] or impede[d], or endeavor[ed] to obstruct or impede, the due administration of [the Internal Revenue Code].”
In light of
3. The government proved that Mr. Wood corruptly intended to obstruct or impede the IRS.
In a final challenge to the sufficiency of the evidence, Mr. Wood contends that a rational jury could not find that he intended to obstruct or impede the administration of the Internal Revenue Code. He suggests that the government‘s evidence supported the inference that he may have intended to violate federal securities laws but not that he intended to obstruct the IRS‘s operations. He observes that none of the government‘s witnesses testified that they heard him discuss hiding money from the IRS and adds that he did not conceal the fact that he had not filed tax returns since the mid-1980s.
Again, we are not persuaded. In making its determination regarding a defendant‘s intent, the jury may consider circumstantial evidence. United States v. Prows, 118 F.3d 686, 692 (10th Cir.1997); see United States v. Johnson, 971 F.2d 562, 566 (10th Cir.1992) (“Direct evidence of a defendant‘s intent is seldom available. Intent can be proven, however, from surrounding circumstances.“).
Here, the evidence offered by the government provides ample support for the jury‘s finding that Mr. Wood acted with the intent to secure an unlawful benefit for himself, Mr. Ambort, and Mr. Benson—non-payment of income taxes in violation of federal law. Even if no witness heard Mr. Wood express that intent, and even if he and his cohorts also intended to evade
B. Section 7212(a) is not unconstitutionally vague.
Next, Mr. Wood argues for the first time on appeal that
“A penal law is void for vagueness if it fails to ‘define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited’ or fails to establish guidelines to prevent ‘arbitrary and discriminatory enforcement of the law.‘” City of Chicago v. Morales, 527 U.S. 41, 64-65, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (O‘Connor, J., concurring) (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)). Because this argument was not raised in the district court, it is reviewable only for plain error. United States v. Robertson, 473 F.3d 1289, 1291 (10th Cir.2007);
Mr. Wood contends that, as the district court interpreted the statute,
Vagueness arguments challenging
Mr. Wood also argues that, in addition to its unconstitutionally vague application to the specific facts of his case,
C. Under plain error review, Mr. Wood is not entitled to relief on the grounds that the district court erred in instructing the jury on the elements of the § 7212(a) charge.
Mr. Wood also argues that the district court erred in instructing the jury on the elements of a
Count I of the indictment charges that the defendant corruptly endeavored to impair or impede the due administration of the internal revenue laws through various acts over a period of time.
To warrant a verdict of guilty on Count I [the
§ 7212(a) obstruction charge], the government need not prove all of the alleged acts. Rather, the government need prove only one of the alleged means and that such act was a corrupt endeavor to impede the due administration of the internal revenue laws.Your vote, then, need not be unanimous that the defendant committed all of the alleged acts. Your vote must be unanimous, however, that the defendant committed at least one of the acts. Moreover, your vote must be unanimous as to the same act. That is, you must all agree that the defendant committed a particular act and that, as alleged, the act amounted to a corrupt endeavor to impede the due administration of the internal revenue laws.
Rec. vol. 1, doc. 55 (Instr. no. 18) (emphasis added).
In explaining to the jury “the alleged means” that Mr. Wood had employed to “endeavor to impede the due administration of the internal revenue laws,” id., the district court provided the jury with the allegations of the indictment. In particular, instruction 14 stated, in part:
The indictment in this case accuses the defendant ... with the crimes of wrongfully endeavoring to obstruct and impede the due administration of the internal revenue laws and of willfully failing to file individual income tax returns. As to these crimes, the indictment reads as follows:
At all times relevant to this indictment, [Mr. Wood] was a practicing attorney who filed no income-tax returns, and Ernest Glenn Ambort was the lead defendant in a pending criminal tax case.... Defendant [Mr. Wood] represented one of Ambort‘s co-defendants.
Beginning in or around October 1998, and continuing thereafter up to and including April 15, 2002, in the District of Utah, [Mr. Wood] ... did corruptly endeavor to obstruct and impede the due administration of the internal revenue laws by various means, including using domestic non-interest bearing bank accounts under his signature, offshore credit-card accounts, and nominee entities to conduct business for Ernest Glenn Ambort, for the MyCor Investment Club ..., for himself and for others, all for the purpose of hiding income and assets, as more particularly described below:
(a) Through about April 2001, [Mr. Wood], aware of the Internal Revenue Service‘s interest in Ambort‘s income and assets, used a local bank account
for The Family Foundation to receive funds from participants in the MyCor Investment Club; rather than invest those funds, [Mr. Wood] spent them to keep the investment scheme going, to pay himself, and to pay the expenses of Ernest Glenn Ambort and others. (b) During this same period, [Mr. Wood] routed expenses through nominee bank accounts ...
(c) During the same period, [Mr. Wood] opened offshore credit-card accounts for himself and for others, received the credit-card statements at his law-office address, and paid on the accounts from his domestic bank accounts.
(d) [Mr. Wood] failed to file his own federal income-tax returns when due on April 16, 2001 and April 15, 2002, respectively, for the 2000 and 2001 tax years.
Id. at 77-78 (Instr. no. 14) (emphasis added).
Mr. Wood focuses on the highlighted portions of instructions 18 and 14. He contends that read together, these instructions erroneously allowed the jury to find that failing to file income tax returns in violation of
Mr. Wood‘s counsel did not object to these jury instructions at trial. Accordingly, we review the challenged instructions for plain error. See Robertson, 473 F.3d at 1291;
Upon review of the applicable law, we conclude that Mr. Wood has made a plausible argument for the first two components of plain error review. The instructions do allow the jury to find that Mr. Wood‘s mere failure to file tax returns constituted a “corrupt[] endeavor to obstruct and impede the due administration of the internal revenue laws.” Rec. vol. 1, doc. 55 (Instr.14). As Mr. Wood contends, that is a questionable proposition. The willful failure to file tax returns is addressed in a different section of the Internal Revenue Code,
Moreover, the government has provided us with no case authority directly supporting the jury instructions’ theory that the failure to file under
Nevertheless, the third component of the plain error inquiry presents Mr. Wood with a much higher hurdle. “In the ordinary case, to meet this standard an error must be ‘prejudicial,’ which means that there must be a reasonable probability that the error affected the outcome of the trial.” United States v. Marcus, 560 U.S. 258, 264, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010). The defendant‘s burden is to “satisfy the judgment of the reviewing court, informed by the entire record, that the probability of a different result is sufficient to undermine confidence in the outcome of the proceeding.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (internal quotation marks omitted).
When, as here, a defendant contends that the trial court‘s instructions allow the jury to convict on alternative theories, one of which is valid and one of which is legally erroneous, the reasonable-probability, plain-error inquiry differs markedly from the standard that we apply when a defendant objects at trial. In the latter instance, a general verdict must be set aside “when [it] is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.” Yates v. United States, 354 U.S. 298, 312, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), overruled in part on other grounds by Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991)1; see also United States v. Miller, 84 F.3d 1244, 1257 (10th Cir.1996) (“Because the instruction defining one of the two alternative grounds for conviction was legally erroneous, we must reverse the conviction unless we can determine with absolute certainty that the jury based its verdict on the ground on which it was correctly instructed.“), overruled in part on other grounds by United States v. Holland, 116 F.3d 1353, 1359 n. 4 (10th Cir.1997). In contrast, when the defendant does not object, the Yates impossible-to-tell-warrants-reversal standard does not apply.
Instead, under the third component of the plain error inquiry, we must “exam-in[e] the impact of the district court‘s instructional error on the outcome of the case, i.e., whether the error affected [the defendant‘s] substantial rights.” United States v. Duran, 133 F.3d 1324, 1333 (10th Cir.1998) (internal quotation marks omitted). The defendant must show that there is a reasonable probability that the jury would have reached a different result if given the correct instruction. See Dominguez Benitez, 542 U.S. at 83. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” United States v. Hasan, 526 F.3d 653, 665 (10th Cir.2008) (internal quotation marks omitted).
In making this reasonable-probability inquiry, we may consider the strength of the government‘s case. See United States v. Draper, 553 F.3d 174, 182 (2d Cir.2009) (concluding that there was no evidence to support an element on which the district court had failed to instruct the jury and that, as a result, there was “a reasonable probability that, but for the error claimed, the result of the proceeding would have been different“) (alteration and internal quotation marks omitted). We may also consider whether the prosecutor emphasized the erroneous instruction in closing argument, see United States v. Rush-Richardson, 574 F.3d 906, 912 (8th Cir. 2009), and whether, during its deliberations, the jury asked a question suggesting that it had considered the erroneous instruction, see id. at 912–13.
Here, assuming without deciding that the district court committed (1) error in instructing the jury that (2) is plain, Mr. Wood has not established a reasonable probability that he would have been acquitted on the
Additionally, there is no indication that the prosecution described Mr. Wood‘s failure to file as an essential component of the
In his subsequent remarks, the prosecutor did mention Mr. Wood‘s failure to file tax returns. However, he again did not suggest that this failure, standing alone, was sufficient to support the
[Y]ou heard in the instructions that the corrupt endeavor, that part of the corrupt endeavor has to occur after January the 10th of 2001. You‘ll see from the evidence that the defendant was prepared and ready through 2002 to help his friends fly with him under the I.R.S.‘s radar. In April he failed to file his 2001 tax return. Through April of 2001 he is paying on John Benson‘s home in Draper. Also through June of 2001 he is paying other expenses of Ambort‘s staff and others.... According to one private and very cryptic e-mail ... in June of 2001 the defendant is still anticipating money coming back from MyCor, according to the e-mail, and he intends to hide it from what he calls the dragon or the beast, which is a reference to the government who is interested in taxing the funds.
Id. at 866.
Accordingly, in light of (a) the strength of the evidence supporting the government‘s contention that Mr. Wood corruptly endeavored to obstruct and impede the due administration of the internal revenue laws by means other than merely failing to file tax returns for 2000 and 2001; and (b) the prosecution‘s emphasis on these other means in its presentations to the jury, Mr. Wood has failed to establish a reasonable probability of a different result sufficient to undermine confidence in the outcome of the proceeding. Dominguez Benitez, 542 U.S. at 83. Accordingly, we reject his challenge to the
D. The district court plainly erred in imposing the $250,000 fine.
Mr. Wood next contends that he is entitled to resentencing because the district court erred when it imposed an unreasonably high fine of $250,000. As Mr. Wood concedes, he did not object to the imposition of the fine in the district court proceedings, and our review is therefore for plain error. See Robertson, 473 F.3d at 1291.
Under
- the defendant‘s income, earning capacity, and financial resources;
- the burden that the fine will impose upon the defendant, any person who is financially dependent on the defendant, or any other person (including a government) that would be responsible for the welfare of any person financially dependent on the defendant, relative to the burden that alternative punishments would impose;
- any pecuniary loss inflicted upon others as a result of the offense;
- whether restitution is ordered or made and the amount of such restitution;
- the need to deprive the defendant of illegally obtained gains from the offense;
- the expected costs to the government of any imprisonment, supervised release, or probation component of the sentence;
- whether the defendant can pass on to consumers or other persons the expense of the fine.
The determination of the amount of the fine is also addressed by the advisory United States Sentencing Guidelines (USSG).
Here, as we have noted, the PSR determined the offense level to be twenty-eight, which resulted in an advisory Guidelines range of $12,500 to $125,000. Upon review of Mr. Wood‘s assets and liabilities, the PSR further concluded that “[b]ased on [Mr. Wood‘s] financial profile, to include significant tax debt, it appears that he does not have the ability to pay a fine.” Rec. vol. 3, at 14, ¶ 58. In its sentencing memorandum, the government stated that “[a] fine at the low end of the Guideline range is ... appropriate.” Rec. vol. 1, at 150.
Despite these recommendations in the PSR and the government‘s sentencing memorandum, the district court imposed a total fine of $250,000, twice the maximum amount under the advisory Guidelines. Apparently, the court believed that the $250,000 fine was within the Guidelines. In response to the prosecutor‘s observation that $250,000 was above the Guidelines maximum, the court responded, “Well, let‘s put it within the [G]uidelines[,]” and divided the $250,000 among the three offenses ($100,000 on the
In United States v. Smith, 919 F.2d 123, 126 (10th Cir.1990), a decision issued under the mandatory Guidelines scheme that preceded United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), this circuit concluded that the imposition of a $225,000 fine constituted plain error warranting resentencing. The maximum
In a more recent, post-Booker decision, the Second Circuit has reached a similar conclusion. See United States v. Elfgeeh, 515 F.3d 100, 136-37 (2d Cir.2008). There, the maximum amount under the Guidelines was $500,000, but the district court imposed a fine of $1.25 million (still less than the statutory maximum). In concluding that the district court had plainly erred and that resentencing was warranted, the court noted that (1) the defendant was neither given notice that such a large fine was contemplated nor afforded an opportunity to be heard on the amount of the fine; (2) the government did not seek an above-Guidelines fine; (3) the PSR determined that the defendant “would not be able to pay the fine in any amount“; (4) the district court did not make any findings regarding the defendant‘s ability to pay the fine; and (5) the district court did not acknowledge at sentencing that it was imposing a fine above the Guidelines range. Id. at 136-37. Accordingly, “the imposition of a fine of more than double the maximum recommended by the Guidelines ... constituted a plain error that substantially impacted the fairness, or at least the appearance of fairness, of the sentencing proceeding.” Id. at 137; see also United States v. Mordini, 366 F.3d 93, 95 (2d Cir.2004) (finding plain error in the imposition of fine that was “nearly double the maximum fine available under the sentencing guidelines“); United States v. Quintieri, 306 F.3d 1217, 1235 (2d Cir.2002) (stating that “[b]ecause the district court imposed a fine above the Guideline range without explaining its reason for the departure, the $175,000 fine was clearly imposed in error” and that “failing to correct the error would seriously affect the fairness of the judicial proceedings“).
These decisions support Mr. Wood‘s contention that the district court plainly erred in imposing the $250,000 fine. As in those cases, the district court gave no explanation of its variance from the Guidelines maximum, apparently because it mistakenly believed that the fine was within the Guidelines. Although the court concluded that Mr. Wood did have “the ability to pay [the $250,000 fine] because it believed that Mr. Wood had “hidden money,” Rec. vol. 2, at 930, it failed to set forth “the specific reason for the imposition of a sentence different from [the Guideline range].” See
We therefore conclude that the district court‘s imposition of the $250,000 fine constituted (1) error, (2) that was plain, (3) that affected Mr. Wood‘s substantial rights, and (4) that seriously affected the fairness, integrity or public reputation of judicial proceedings. Robertson, 473 F.3d at 1291. Mr. Wood is entitled to resentencing as to the amount of the fine.
E. The district court did not err in imposing $56,852 in restitution.
Finally, Mr. Wood challenges the imposition of $56,852 in restitution. As we have noted, in imposing that amount, the district court deferred to the government‘s request at sentencing. The government explained that $56,852 was “20 percent of the amount of expenditures that we could
Mr. Wood now contends that the district court erred in imposing restitution because the $56,852 had not been previously determined by the IRS to constitute his income tax obligation for the years at issue and because “the amount ordered has not been acknowledged, conclusively established in the criminal proceedings or finally determined in civil proceedings.” Aplt‘s Br. at 52. At sentencing, Mr. Wood objected to the amount of restitution. We therefore review the district court‘s factual findings for clear error and consider de novo “the legality of a restitution order.” United States v. Griffith, 584 F.3d 1004, 1019 (10th Cir.2009).
In support of his argument, Mr. Wood relies on United States v. Franks, 723 F.2d 1482, 1487 (10th Cir.1983). There, we vacated the imposition of $100,000 in restitution for unpaid taxes. As authority for its order, the district court had relied upon
We are not persuaded by Mr. Wood‘s argument that, in light of Franks, the district court erred in imposing restitution. Here, unlike Franks, the government does not concede that amount of restitution was arbitrarily imposed. Instead, the government contends that the restitution order was authorized under the current statutory scheme and supported by the facts presented to the district court. We agree with the government.
As to the statutory scheme, we note that the district court imposed restitution as a condition of supervised release pursuant to
As to the facts at hand, the government‘s request for the imposition of restitution is supported by evidence of Mr. Wood‘s income during the years at issue. Mr. Wood has offered no persuasive evidence or argument suggesting that the government‘s figures are erroneous. We therefore conclude that the amount of restitution is reasonably related to the relevant sentencing factors and comports with the other factors set forth in the governing statute,
Thus, the district court did not err in requiring Mr. Wood to pay $56,852 in restitution.
III. CONCLUSION
In order to establish a violation of
The district court‘s order imposing $56,852 in restitution was authorized by the governing statutes and the evidence in the record, and we therefore AFFIRM that part of Mr. Wood‘s sentence. However, the district court plainly erred in imposing a $250,000 fine, and we therefore VACATE the fine and REMAND for resentencing consistent with this order and judgment.