United States v. Boyer ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4284
HARRY J. BOYER,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Parkersburg.
Charles H. Haden II, Chief District Judge.
(CR-97-113)
Submitted: November 10, 1998
Decided: December 2, 1998
Before MURNAGHAN, LUTTIG, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Harry J. Boyer, Jr., New Orleans, Louisiana, for Appellant. Rebecca
A. Betts, United States Attorney, Susan M. Arnold, Assistant United
States Attorney, Charleston, West Virginia, for Appellant.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Harry J. Boyer, Sr., pled guilty to one count of interference with
administration of internal revenue laws in violation of 26 U.S.C.
§ 7212(a) (1994). He was sentenced to an eighteen-month term of
imprisonment and ordered to pay a $5000 fine. On appeal, Boyer con-
tends that the sentencing court improperly: (1) computed the amount
of loss for purposes of determining his base offense level; (2) found
that Boyer used sophisticated means to evade detection; (3) denied an
adjustment in offense level for acceptance of responsibility; and (4)
refused a downward departure in sentencing. Finding no reversible
error, we affirm.
Based upon an Internal Revenue Service ("IRS") audit for tax years
1986 and 1987, Boyer was found to have a tax liability of $50,459.47.
In September 1992, Boyer submitted Form 656, Offer and Compro-
mise, in which he proposed paying $5000 to settle the assessment,
based upon his representation that he lacked financial ability to pay
the entire amount.
However, Boyer had significant unreported assets available to pay
the assessment. In 1989, Boyer settled a lawsuit against the State of
Louisiana for $177,548.75. These funds were held in escrow by
Boyer's attorney until he instructed the attorney in July 1992 to
deposit the funds, totaling $93,000 after deduction of attorney's fees,
into the saving accounts of two of Boyer's minor children. Boyer and
his wife were custodians of these two accounts. In August 1992,
Boyer received an additional $17,859 from Louisiana. On August 14,
1992, Boyer used these funds and an additional $15,800 withdrawn
from his children's accounts as a down payment on a house. The
house, valued at $146,000, was titled solely in Boyer's wife's name.
Using cashier checks, Boyer transferred the remaining funds in his
children's accounts into accounts at Shearson Lehman with only his
wife listed as custodian.
It was shortly thereafter that Boyer submitted to the IRS his initial
$5000 settlement offer. He failed to disclose the funds received from
the State of Louisiana or his interest in real estate. The IRS discov-
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ered that Boyer signed the Deed of Trust on the house. When con-
fronted with this information, Boyer told the IRS that the funds used
for the down payment came from his wife's parents.
In March 1993, Boyer increased his offer to settle to $10,000. Once
again, he failed to disclose his interest in his house or the settlement.
In April 1994, Boyer again offered to settle for $10,000. He then
increased the offer to $20,000. At no time did Boyer disclose his
assets. The IRS accepted Boyer's $20,000 offer. Boyer paid $15,000
and defaulted on the remaining $5000.
Boyer challenges his sentence on multiple grounds. In reviewing a
district court's sentence under the Sentencing Guidelines, we accept
the court's findings of fact unless they are clearly erroneous and give
due deference to the court's application of the guidelines to the facts.
See United States v. Cutler, 36 F.3d 406, 407 (4th Cir. 1994). The
standard of review for the court's legal interpretation of the Guide-
lines is closer to de novo review. Id.At sentencing, Boyer's base offense level was 13 based upon a tax
loss of greater than $40,000 and less than $70,000. See U.S. Sentenc-
ing Guidelines Manual § 2T4.1(H) (1997). Boyer contended that the
base offense level should be 12 because the intended loss was only
approximately $30,000, based upon his offer to pay $20,000, and the
actual loss was approximately $35,000, based upon his payment of
$15,000. The court rejected this argument.
Under USSG § 2T1.1(c)(1), "tax loss is the total amount of loss
that was the object of the offense (i.e., the loss that would have
resulted had the offense been successfully completed)." The fact that
Boyer paid $15,000 towards the assessment is of no consequence in
computing his offense level under the Guidelines."The tax loss is not
reduced by any payment of the tax subsequent to the commission of
the offense." § 2T1.1(c)(5). Furthermore, the Sentencing Guidelines
clearly contemplate that the tax loss is the amount of loss that the
defendant intended to inflict, not the Government's actual loss. See
United States v. Kraig, 99 F.3d 1361, 1370-71 (6th Cir. 1996). Thus,
Boyer's contention that the court should have used $35,000 as the tax
loss is without merit.
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Boyer's alternative argument that the intended loss was only
$30,000 based upon his offer of $20,000 is equally without merit.
Boyer first offered to pay only $5000, evincing an intention that the
tax loss be about $45,000. Even with his subsequent $10,000 offer,
the intended tax loss remained above $40,000. Thus, we agree with
the district court and find that 13 is the appropriate base offense level.
Boyer also contends the court erred by imposing a two-level
offense level enhancement for using sophisticated means to impede
discovery of his offense. See USSG § 2T1.1(b)(2). "Sophisticated
means" includes "conduct that is more complex or demonstrates
greater intricacy or planning than a routine tax-evasion case." USSG
§ 2T1.1, Comment. (n.4). We review this claim for clear error. See
United States v. Becker, 965 F.2d 383, 390 (7th Cir. 1992).
Boyer instructed his attorney to hold the amount awarded in the
settlement with the State of Louisiana. He subsequently deposited the
award into his children's accounts. He then withdrew some of the
money as custodian of the accounts to buy a home with ownership
listed solely in his wife's name. Finally, through a series of cashier
checks, he moved the funds to new accounts. It is obvious that Boyer
did much more than merely not report his income or assets. Through
this series of transactions, Boyer attempted to hide assets from the
IRS in order to avoid paying the assessment. Such conduct clearly
supports the two-level enhancement. See United States v. Minneman,
143 F.3d 274, 283 (7th Cir. 1998) (placement of funds in trust
account); United States v. Clements, 73 F.3d 1330, 1340 (5th Cir.
1996) (converting funds into cashier's checks and depositing into
wife's account); Becker, 965 F.2d at 390 (two-level enhancement for
closing personal bank accounts and depositing funds in son's
account). We thus find that the court did not err by imposing this
enhancement.
Boyer contends the court erred by denying a two-level reduction in
his offense level for acceptance of responsibility. See USSG
§ 3E1.1(a). The court found that Boyer was not entitled to the reduc-
tion because he refused to furnish financial information regarding a
trust fund as requested by the probation officer. The court stated that
"part of the candor expected by the Court in one who admits to a
crime and accepts responsibility is openness and fully admitting the
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crime charged and in fully disclosing the assets that may or may not
be available to satisfy the matters at issue." Boyer claims that the
requested financial information was not necessary because it merely
reflected information he already disclosed. Again, we review the
court's factual determination for clear error. See United States v.
Myers, 66 F.3d 1364, 1372 (4th Cir. 1995).
Entry of a guilty plea constitutes significant evidence of acceptance
of responsibility, but such evidence may be outweighed by conduct
inconsistent with acceptance of responsibility. See USSG § 3E1.1,
Comment. (n.3). We find that Boyer's refusal to disclose certain
financial information is inconsistent with his acceptance of responsi-
bility because it demonstrates a continued effort on his part to hide
certain information. See United States v. Corral-Ibarra, 25 F.3d 430,
440 (7th Cir. 1994) (refusal to discuss circumstances of offense with
probation office constitutes failure to accept responsibility); United
States v. Cianscewski, 894 F.2d 74, 83 (3d Cir. 1990) (same). Thus,
we conclude the court appropriately denied the reduction in offense
level.
Boyer also contends the court erred in denying a downward depar-
ture from the Sentencing Guidelines based upon his age, family
responsibilities, and aberrant behavior. Because the court understood
it had the authority to order a downward departure, its refusal to order
such a departure is not reviewable. See United States v. Lewis, 10
F.3d 1086, 1092 (4th Cir. 1993).
Based on the foregoing, we affirm Boyer's sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid in the decisional process.
AFFIRMED
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