United States v. Duane Hamelink ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4893
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DUANE HAMELINK,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:10-cr-00042-RJC-1)
Submitted: May 24, 2012 Decided: June 8, 2012
Before WILKINSON, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Dianne Jones McVay, JONES MCVAY LAW FIRM, PLLC, Charlotte, North
Carolina, for Appellant. Jenny Grus Sugar, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Duane Hamelink pled guilty, pursuant to a written plea
agreement, to one count of conspiracy to defraud the United
States, in violation of 18 U.S.C. § 371 (2006), and was
sentenced to 27 months’ imprisonment. On appeal, Hamelink’s
attorney has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), in which she asserts that she has found no
meritorious issues, but questions the constitutionality of the
sentencing enhancement Hamelink received for the amount of tax
loss. Although advised of his right to file a pro se
supplemental brief, Hamelink has not done so. For the reasons
that follow, we affirm.
Hamelink, and his wife Eileen, owned and operated a
residential carpentry business in Charlotte, North Carolina. At
his guilty plea hearing, Hamelink admitted that, despite earning
substantial income from his business, he failed to file any
income tax returns. Hamelink also admitted that he had taken a
variety of steps to conceal his income and assets from the IRS,
including the use of bogus trusts, nominee entities, and related
domestic and foreign bank accounts. In the plea agreement,
Hamelink stipulated that the amount of tax loss known, or
reasonably foreseeable, to him was more than $1 million but less
than $2.5 million, and that the base offense level was
22. See U.S. Sentencing Guidelines Manual (USSG) § 2T4.1
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(2010). After a two-level enhancement for use of sophisticated
means, USSG § 2T1.1(b)(2), and a three-level reduction for
acceptance of responsibility, USSG § 3E1.1, Hamelink’s total
offense level was 21. With a criminal history category of I,
Hamelink’s advisory Guidelines range was 37-46 months’
imprisonment. However, the district court granted a three-level
downward departure, resulting in a total offense level of 18,
with a corresponding guidelines range of 27-33 months
imprisonment. The court imposed a sentence at the bottom of the
range. Hamelink timely appealed.
Counsel questions whether USSG § 2T4.1 is
unconstitutional because it allows inclusion of penalties and
interest assessed by the IRS in calculating amount of loss
attributed for sentencing purposes. Counsel concedes, however,
that: (1) Hamelink stipulated to the amount of loss in the plea
agreement; and (2) there is no case law supporting her argument.
This court reviews Hamelink’s sentence for
reasonableness “under a deferential abuse-of-discretion”
standard. Gall v. United States, 552 U.S. 38, 41, 51 (2007).
In conducting this review, we must ensure that the district
court correctly calculated the defendant’s Guidelines
sentence. Id. at 49, 51. When reviewing the district court’s
application of the Guidelines, this court reviews legal
conclusions de novo and factual findings, such as loss
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calculations, for clear error. United States v. Sosa-
Carabantes, 561 F.3d 256, 259 (4th Cir. 2009); see also United
States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007) (“In
reviewing [a] loss calculation, we review de novo the district
court’s interpretation of what constitutes ‘loss,’ while
accepting the calculation of loss absent clear error.”). The
Government need only establish the tax loss amount by a
preponderance of the evidence. United States v. Mehta, 594 F.3d
277, 282 (4th Cir. 2010). Here, Hamelink stipulated to the
amount of tax loss and is therefore bound by that admission. In
any event, inclusion of penalties and interest in calculating
tax loss was not erroneous.
“Tax loss,” within the meaning of USSG § 2T2.1 is the
amount of taxes that the taxpayer “failed to pay or attempted
not to pay.” USSG § 2T2.1(a). Section 2T4.1(c) provides that:
“‘tax loss’ does not include penalties and interest except in
cases of willful evasion under either 26 U.S.C. §§ 7201 or
7203.” Hamelink clearly willfully evaded income taxes, as that
was the primary goal of the conspiracy. Accordingly, these
amounts were properly counted in amount of tax loss. Moreover,
it is well established that the additions to tax for penalties
and interest are civil, not criminal, in nature, and therefore
do not implicate double jeopardy. See Helvering v. Mitchell,
303 U.S. 391 (1938).
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In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Hamelink’s conviction and sentence. This
court requires that counsel inform Hamelink, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Hamelink requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Hamelink.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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