United States v. Tamny Westbrooks , 858 F.3d 317 ( 2017 )

Case: 16-20409 Document: 00514006388 Page: 1 Date Filed: 05/24/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-20409 FILED
May 24, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
TAMNY DENISE WESTBROOKS, also known as Tammy Westbrooks, also
known as Tammy Westbrook,
Defendant - Appellant
Appeals from the United States District Court
for the Southern District of Texas
Before STEWART, Chief Judge, and HIGGINBOTHAM and COSTA, Circuit
Judges.
GREGG COSTA, Circuit Judge:
Taxes were Tamny Denise Westbrooks’s profession. She operated two
businesses that helped people prepare their taxes. But it was misrepresenting
profits from one of her own tax preparation business that got her into trouble.
An indictment alleged that her returns falsely stated the income by grossly
inflating amounts paid for wages. It also alleged that Westbrooks took steps
to obscure the amount workers were actually paid. A jury found that the
evidence supported those charges, convicting Westbrooks of corruptly
endeavoring to obstruct the administration of the tax code and of three counts
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of filing fraudulent tax returns. Westbrooks challenges the obstruction count
on various grounds and also appeals the restitution order. We uphold the
convictions and amount of the restitution award but modify the judgment so
the restitution obligation is limited to the supervised release term that is the
only period during which restitution can be imposed for a tax offense.
I.
Westbrooks operated a tax preparation business, JATS Tax Service, in
Charlotte, North Carolina. Tonya Robbins owned the company, but
Westbrooks managed day-to-day operations and had signature authority for
JATS’s checking account. At the same time, Westbrooks co-operated another
tax preparation business, CF&W Financial Services, in Houston.
The first sign of trouble came when the IRS executed a search warrant
at JATS’s office in 2009, and Westbrooks received a grand jury subpoena to
produce records related to JATS. United States v. Westbrooks, 780 F.3d 593,
594 (4th Cir. 2015). Westbrooks produced only “a packet of materials
comprised primarily of unopened mail and refund checks for clients.” Id. The
government, noting that most of the documents Westbrooks had provided were
not responsive and that she had not produced documents typically maintained
by an ongoing business operation, moved for an order to show cause why she
should not be held in contempt. Id. A federal district court in North Carolina
held a show cause hearing. Id. at 595. At the hearing, Westbrooks testified
that from 2005 to 2009 no W-2s or 1099s were prepared or filed for JATS
workers, that she kept no records identifying the employees of JATS, did not
keep track of their wages or the hours they worked, and that Robbins had
already handed over all bank records responsive to the subpoena, which should
support the amounts reflected as wages in the tax returns. The court found
Westbrooks guilty of criminal contempt “for failure to comply with a grand jury
subpoena.” Id. at 594.
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A Houston grand jury later charged Westbrooks with one count of
corruptly endeavoring to obstruct the due administration of the internal
revenue laws (count one), and three counts of willfully filing false tax returns
for 2007, 2008, and 2009 (counts two through four). The obstruction count was
based on conduct occurring from 2004 through 2009, including submitting the
returns that falsely stated low income for JATS. The indictment alleged that
although annual compensation for all JATS workers never exceeded $30,000,
the returns listed wages or subcontractor expenses ranging from $87,425 to
$248,400 during these years. This count further alleged that Westbrooks did
not properly file IRS and social security forms documenting compensation of
JATS employees and made such payments in cash. Finally, it relied on her
providing false and misleading testimony at the show cause hearing.
Westbrooks unsuccessfully moved to dismiss count one, arguing that the
indictment failed to allege that there was an ongoing IRS investigation or
proceeding during the obstructive conduct, that the statute was vague, and
that venue was lacking. After a four-day trial, a jury convicted Westbrooks on
all counts.
The district court imposed a total sentence of 40 months. It also ordered
her to pay $273,460 in restitution to the IRS in quarterly instalments of $25 or
half of prison earnings, whichever is greater, while incarcerated, and in the
monthly amount of $400 or ten percent of gross earnings, whichever is greater,
during the year of supervised release that would follow her prison term.
II.
A.
Westbrooks contends the indictment did not allege an essential element
of the tax obstruction statute because it did not assert that she acted with
knowledge of a pending IRS action such as an investigation or proceeding.
Westbrooks was convicted under the omnibus clause of the statute, which
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makes it a crime to “in any . . . way corruptly or by force or threats of force . . .
obstruct[ ] or impede[ ], or endeavor[ ] to obstruct or impede, the due
administration of this title.” 26 U.S.C. § 7212(a). The clause does not mention
a proceeding or investigation.
Our prior cases involving section 7212(a) do not directly confront this
question but treat the statute as not requiring knowledge of a pending IRS
action. In United States v. Reeves, 752 F.2d 995 (5th Cir. 1985), the defendant
knew he was being investigated—he violated section 7212(a) by filing a lien
against the residence of an IRS agent investigating his tax returns. Id. 996–
97. Nonetheless, in defining the scope of the “corruptly” element, we
recognized that the tax obstruction statute “reaches a broad category of
circumstances.” Id. at 1000. We thus defined “corruptly” narrowly—to require
that the defendant acted “with the intent to secure an unlawful benefit,” id. at
1001—because “interference with the administration of the tax laws need not
concern a proceeding in which a party stands to gain an improper advantage
. . . .” Id. at 999 (emphasis added). In contrast, we noted that an obstruction
statute like 18 U.S.C. § 1503 that limits obstruction to that occurring in
connection with a judicial proceeding does not necessitate an “intent to benefit”
finding; obstruction in response to a pending action “will almost necessarily
result in an improper advantage.” Id.
After Reeves, we upheld convictions under section 7212(a) when there
was no pending action: the convictions were based on defendants’ corrupt
efforts to trigger an investigation into others. United States v. Saldana, 427
F.3d 298, 301, 304–05 (5th Cir. 2005) (noting that that the defendant filed
“false tax reports regarding several individuals for the purpose of triggering
[IRS] audits and thereby harassing and intimidating these individuals”). In
doing so, we rejected the defendants’ contention that section 7212(a) requires
intent to gain a benefit under the tax laws. Id. If section 7212(a) does not
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require even that intent, it would not seem to require intent to gain a benefit
in a particular investigation or proceeding.
To the extent we have not already rejected Westbrooks’s position, we do
so now, joining a majority of the circuits to consider the question. Of the five
circuits to directly address the issue, only the first to consider the question
adopted Westbrooks’s position, and one judge dissented from that ruling. See
United States v. Kassouf, 144 F.3d 952, 955–58 (6th Cir. 1998). 1 Four have
since held that section 7212(a) does not require an ongoing IRS action. United
States v. Floyd, 740 F.3d 22, 32, 32 n.4 (1st Cir. 2014) (“A conviction for
violation of section 7212(a) does not require proof of either a tax deficiency . . .
or an ongoing audit,” so “the filing of false tax documents” or “concealment of
income or other assets from the IRS can form the basis for a violation of the
statute”); United States v. Marinello, 839 F.3d 209, 222 (2d Cir. 2016)
(“[S]ection 7212(a)’s omnibus clause criminalizes corrupt interference with an
official effort to administer the tax code, and not merely a known IRS
investigation.”); United States v. Massey, 419 F.3d 1008, 1010 (9th Cir. 2005)
(“[T]he government need not prove that the defendant was aware of an ongoing
tax investigation to obtain a conviction under § 7212(a); it is sufficient that the
defendant hoped ‘to benefit financially’ from [his] conduct.”); United States v.
Sorensen, 801 F.3d 1217, 1232 (10th Cir. 2015), cert. denied, 136 S. Ct. 1163
(2016) (“7212(a) does not require an ongoing proceeding . . . .’”). 2
1 The Sixth Circuit recently reaffirmed Kassouf. United States v. Miner, 774 F.3d 336,
345 (6th Cir. 2014).
2 Westbrooks unsuccessfully attempts to distinguish Floyd and Massey. Floyd is a
sufficiency of the evidence case, but it held that evidence was sufficient to support an
obstruction conviction because no evidence of an ongoing audit was required. 740 F.3d at 32.
Floyd said Kassouf is not “good law.” Id. at 32 n.4. Massey, addressing the adequacy of a
jury charge, held that the charge was correct because the government was not required to
prove knowledge of an ongoing investigation. 419 F.3d at 1010.
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As these cases explain, Kassouf did not correctly interpret section
7212(a). Kassouf relied on United States v. Aguilar, 515 U.S. 593, 600 (1995),
which held that a conviction under section 1503 requires a nexus between the
underlying conduct and judicial proceedings. Id. But the text of section
7212(a) is substantially different from that of section 1503. 3 First, section
1503’s “due administration of justice” provision follows a list “of specific
prohibitions of conduct that interferes with actual judicial proceedings” which
“supports a reading that tethers the ‘due administration of justice’ to actual
grand jury or judicial proceedings.” Marinello, 839 F.3d at 220 (quoting United
States v. Wood, 384 F. App’x 698, 704 (10th Cir. 2010)). In contrast, section
7212(a) begins by referring to attempts to interfere with officers “acting in an
3 The full text of the provisions is as follows:
Whoever corruptly, or by threats or force, or by any threatening
letter or communication, endeavors to influence, intimidate, or impede
any grand or petit juror, or officer in or of any court of the United States,
or officer who may be serving at any examination or other proceeding
before any United States magistrate judge or other committing
magistrate, in the discharge of his duty, or injures any such grand or
petit juror in his person or property on account of any verdict or
indictment assented to by him, or on account of his being or having been
such juror, or injures any such officer, magistrate judge, or other
committing magistrate in his person or property on account of the
performance of his official duties, or corruptly or by threats or force, or
by any threatening letter or communication, influences, obstructs, or
impedes, or endeavors to influence, obstruct, or impede, the due
administration of justice, shall be punished . . . .
18 U.S.C. § 1503.
Whoever corruptly or by force or threats of force (including any
threatening letter or communication) endeavors to intimidate or impede
any officer or employee of the United States acting in an official capacity
under this title, or in any other way corruptly or by force or threats of
force (including any threatening letter or communication) obstructs or
impedes, or endeavors to obstruct or impede, the due administration of
this title, shall [be punished] . . . .
26 U.S.C. § 7212(a).
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official capacity.” Id. Second, section 1503 refers to the “due administration
of justice” as opposed to the “due administration of this title.” Id. Both
differences indicate section 7212(a) criminalizes a broader range of conduct:
the IRS, through a variety of official actions, “duly administer[s] the tax laws
even before initiating a proceeding.” Sorensen, 801 F.3d at 1232. Courts
administer justice only through proceedings.
The history of the provisions is also different. Marinello, 839 F.3d at
221. Aguilar relies on Pettibone v. United States, 148 U.S. 197, 202 (1893).
Pettibone interpreted an earlier version of section 1503, which made it a crime
to “corruptly endeavor[ ] to influence, intimidate, or impede any witness or
officer in any court of the United States in the discharge of his duty, or
corruptly . . . endeavor[ ] to obstruct or impede[ ] the due administration of
justice therein.” 148 U.S. at 202 (emphasis added). Although Congress later
removed “therein,” “there is no indication . . . that, in doing so, it intended to
fundamentally alter the statute’s meaning.” Marinello, 839 F.3d at 221.
Section 7212(a) has no similar predecessor tying it to a proceeding. 4
Finally, section 7212(a)’s purpose supports the broader reading most
courts have embraced. United States v. Rainey, 757 F.3d 234, 245 (5th Cir.
2014) (“[E]ven in a criminal case, a statute’s purpose may be a ‘consideration
[that] strongly support[s]’ a textual interpretation.”). The breadth of section
7212(a)’s language shows that the omnibus provision was intended to prevent
frustration of tax collection efforts, a purpose which would be thwarted by
Westbrooks’s narrow interpretation. “In a system of taxation such as ours
which relies principally upon self-reporting, it is necessary to have in place a
4 Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), also does not support
Westbrooks’s view. Although that case found that the government must prove a “nexus”
between certain acts and a particular proceeding, the statute it applied, 18 U.S.C. § 1512(b),
by its terms applies to obstruction of an “official proceeding.” Id. at 707.
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comprehensive statute in order to prevent taxpayers and their helpers from
gaining unlawful benefits by employing that variety of corrupt methods that is
limited only by the imagination of the criminally inclined.” United States v.
Popkin, 943 F.2d 1535, 1540 (11th Cir. 1991) (internal quotation marks and
citation omitted). 5
The indictment therefore did not fail to allege an essential element of the
obstruction charge.
B.
Westbrooks argues that without her narrowing interpretation that
requires a pending IRS action, section 7212(a) is unconstitutionally vague. To
prevail on this claim, she must show that the statute “fails to provide a person
of ordinary intelligence fair notice of what is prohibited, or is so standardless
that it authorizes or encourages seriously discriminatory enforcement.’”
United States v. McRae, 702 F.3d 806, 836–37 (5th Cir. 2012) (quoting Holder
v. Humanitarian Law Project, 561 U.S. 1, 18 (2010)).
Although Reeves does not involve a vagueness challenge, one reason it
gives for its narrow construction of “corrupt” it to preserve the statute from
vagueness challenges. 752 F.2d at 999–1000. Since then, every court to
consider such a challenge to section 7212(a) has rejected it, reasoning that
Reeves’s interpretation of “corrupt” provides sufficient clarity and notice. See,
e.g., United States v. Kelly, 147 F.3d 172, 176 (2d Cir. 1998); United States v.
5 Westbrooks’s argument, raised in her reply brief, that the legislative history of
7212(a) indicates that the provision was intended to address only interference with IRS
agents is: (1) counteracted by the text of the provision, which refers to action that obstructs
“any officer or employee of the United States acting in an official capacity under this title or
in any other way . . . obstructs or impedes” administration of the title; and (2) has been
convincingly rejected by other courts, see United States v. Martin, 747 F.2d 1404, 1409 (11th
Cir. 1984) (“Congress was not required to list in the legislative history every conceivable
corrupt endeavor to avoid waiving the statute’s application to one type of corrupt endeavor.”);
United States v. Bowman, 173 F.3d 595, 598 (6th Cir. 1999); United States v. Mitchell, 985
F.2d 1275, 1279 (4th Cir. 1993).
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Ring, 191 F.3d 462, at *1 (9th Cir. 1999); Wood, 384 F. App’x at 706; Popkin,
943 F.2d at 1540.
Westbrooks again relies on Kassouf, pointing out that the Sixth Circuit
expressed concern that requiring no connection to a pending proceeding would
expose section 7212(a) “to legitimate charges of overbreadth and vagueness.”
144 F.3d at 958. The Sixth Circuit reasoned that “out of the hundreds of people
who file taxes every day, there is no guarantee that a particular tax return will
be audited,” so “it would be highly speculative to find conduct such as the
destruction of records, which might or might not be needed, in an audit which
might or might not ever occur, is sufficient to make out an omnibus clause
violation.” Id. This ignores narrowing work done by other portions of the
statute. As mandated by Reeves, only destruction of documents with the intent
to gain an unlawful advantage would fall within section 7212(a).
In any event, regardless of whether section 7212(a) could be vague as
applied to some conduct, “[a] person whose conduct is clearly proscribed by a
statute cannot . . . complain that the law is vague as applied to the conduct of
others.” McRae, 702 F.3d at 837 (quoting Humanitarian Law Project, 561 U.S.
at 18–19). That describes Westbrook. She fabricated compensation amounts
on her returns and engaged in deceptive practices, such as making cash
payments and not filing wage reporting documents to conceal the low amounts
of compensation the workers received. See Reeves, 752 F.2d at 998 (finding
section 7212(a) “directed at efforts to bring about a particular advantage such
as impeding the collection of one’s taxes, the taxes of another, or the auditing
of one’s or another’s tax records”); Wood, 384 F. App’x at 706 (finding using
deceptive techniques to hide income and assets from the IRS clearly covered).
Westbrooks rightly argues that, after Johnson v. United States, 135 S.
Ct. 2551 (2015), section 7212(a) is not saved by the fact that some conduct
clearly falls within a statute’s prohibition. Id. at 2561. But as several circuits
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have held, Johnson did not change the rule that a defendant whose conduct is
clearly prohibited cannot be the one making that challenge. See United States
v. Bramer, 832 F.3d 908, 909 (8th Cir. 2016) (“Though Bramer need not prove
that § 922(g)(3) is vague in all its applications, our case law still requires him
to show that the statute is vague as applied to his particular conduct.”);
Arrigoni Enter., LLC v. Town of Durham, 629 F. App’x 23, 26 (2d Cir. 2015);
Maages Auditorium v. Prince George’s Cty., 2017 WL 1019060, at *6 (4th Cir.
Mar. 15, 2017); United States v. Huff, 630 F. App'x 471, 487 (6th Cir. 2015);
United States v. Zagorovskaya, 628 F. App’x 503, 504 (9th Cir. 2015); Miranda
v. U.S. Att’y Gen., 632 F. App'x 997, 1000 (11th Cir. 2015); Flytenow, Inc. v.
FAA, 808 F.3d 882, 895 (D.C. Cir. 2015).
The vagueness challenge fails.
C.
So does Westbrooks’s argument that her prosecution violated the Double
Jeopardy Clause in light of her earlier contempt conviction. As this argument
is being made for the first time on appeal, it must satisfy the stringent plain
error standard. United States v. Odutayo, 406 F.3d 386, 392 (5th Cir. 2005).
Westbrooks cannot overcome even the first hurdle that requires her to
show error as if the argument had been preserved. Under Blockburger v.
United States, 284 U.S. 299, 304 (1932), two statutes are not the same offense
if each contains an element not contained in the other. United States v. Dixon,
509 U.S. 688, 696 (1993). Criminal contempt under 18 U.S.C. § 401(3) and the
section 7212(a) obstruction statute are separate offenses. Among other things,
section 7212(a) does not require proof of a court order, and section 401(3) does
not require an endeavor to obstruct or impede due administration of the
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Internal Revenue laws. 6 And the two convictions apply to different conduct.
The contempt conviction involved Westbrooks’s failure to adequately respond
to the subpoena; the obstruction conviction involved, among other conduct, her
false testimony when she was questioned about that noncompliance in the
North Carolina court.
D.
Westbrooks lastly challenges her count one conviction for lack of venue,
asserting that JATS’s home in North Carolina was the appropriate place to try
the case. A defendant has the right to be tried in the district in which the
alleged crime was committed. U.S. CONST. amend. VI; FED. R. CRIM. P. 18;
United States v. Bryan, 896 F.2d 68, 72 (5th Cir. 1990). But venue may lie in
more than one district: an “offense against the United States begun in one
district and completed in another, or committed in more than one district, may
be . . . prosecuted in any district in which such offense was begun, continued,
or completed.” 18 U.S.C. § 3237(a). So even if venue did lie in Charlotte federal
court, Westbrooks also could be tried in Houston if part of a continuing pattern
of obstructive conduct occurred there.
The five-year period of obstructive conduct alleged in count one was a
continuing offense at least some of which took place in the Southern District of
Texas. Westbrooks’s actions in Houston and Charlotte were interrelated and
in furtherance of the same desire to reduce her tax liability by inflating labor
expenses. There was evidence she prepared and submitted the fraudulent tax
returns charged in count one for herself and other JATS employees in Houston.
For example, her tax returns from 2004 through 2009 containing the false
6The reply brief’s invocation of the collateral-estoppel aspect of double jeopardy, see
Ashe v. Swenson, 397 U.S. 436 (1970), is too late. In any event, there is no prior ruling in
Westbrooks’s favor to support such an argument. She was found guilty at the contempt trial.
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JATS wage numbers, list CF&W, at its Houston address, as the tax preparer.
So do returns Westbrooks prepared for JATS workers. This is sufficient to
establish venue. See Bryan, 896 F.2d at 72 (finding knowingly and willfully
aiding and assisting in the preparation or presentation of fraudulent tax
returns in violation of 26 U.S.C. § 7206(2) a continuing offense and looking to
the address listed for the tax preparer to determine venue); see also United
States v. Nell, 570 F.2d 1251, 1256 (5th Cir. 1978) (same). There was venue in
the Southern District of Texas.
III.
We next address Westbrooks’s challenges to the restitution the district
court imposed. She challenges the statutory authority for the award as well as
the amount awarded.
A.
A federal court cannot order restitution “except when authorized by
statute.” United States v. Love, 431 F.3d 477, 479 (5th Cir. 2005). Westbrooks
maintains the district court’s order of restitution was not authorized because:
(1) the court imposed restitution as part of her sentence under a general
restitution statute, which is not permitted for Title 26 offenses; and (2) even if
the court imposed restitution as a condition of supervised release, which is
permitted for Title 26 offenses, it was not authorized to do so because she did
not agree to restitution in a plea bargain.
Regardless of whether Westbrooks objected to the district court’s
statutory authority to impose restitution, which the parties contest, we review
de novo. A sentence that exceeds a court’s statutory authority should be
corrected on plain error review, so we review whether restitution was illegally
awarded as part of a sentence de novo, and if it was, find plain error. See
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United States v. Nolen, 523 F.3d 331, 382, 382 n.52 (5th Cir. 2008); United
States v. Feast, 614 F. App’x 195, 196–97 (5th Cir. 2015). 7
Neither the Victim and Witness Protection Act, 18 U.S.C. § 3663, nor the
Mandatory Victim Restitution Act, 18 U.S.C. § 3663A, allow restitution for a
tax code offense under Title 26 (as opposed to offenses described in the general
criminal code of Title 18). But several statutes, read together, allow district
courts to order restitution for tax offenses as a condition of supervised release.
Nolen, 472 F.3d at 332–33. The first link in the chain is 18 U.S.C. § 3583(d),
which authorizes courts to impose, as a condition of supervised release, “any
condition set forth as a discretionary condition of probation in section 3563(b).”
Section 3563(b) in turn authorizes a district court to order “restitution to a
victim of the offense under section 3556.” 18 U.S.C. § 3563(b). Section 3556
connects to the general restitution provision, authorizing a district court to
“order restitution in accordance with section 3663,” which provides that a court
“may order . . . that the defendant make restitution to any victim of such
offense.” 18 U.S.C. § 3663(a); see also United States v. Dahlstrom, 180 F.3d
677, 686 (5th Cir.1999). Although section 3663(a) limits restitution to non-
Title 26 offenses, this limit does not apply to restitution as a condition of
supervised release. Love, 431 F.3d at 481. Courts’ broad authority to order
restitution as a condition of supervised release in tax cases is recognized in the
Sentencing Guidelines and generally in the federal courts. See U.S.S.G. §
5E1.1(a)(2); United States v. Batson, 608 F.3d 630, 635 (9th Cir. 2010) (“The
7 The government says United States v. Ortiz, 252 F. App’x 664, 665–67 (5th Cir. 2007),
applies plain error review to whether restitution was imposed under the wrong statute, but
the court did the same thing in Ortiz as it did in Nolen and Feast. Recognizing the legality
of the sentence was at issue, it engaged in a de novo “careful examination of the record” which
showed the district court awarded restitution under section 3663, not as a condition of
supervised release, then considered whether awarding restitution under the wrong statute
was plain error, summarily concluding that it was. Id.
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Supervised Release Statute, together with the Probation Statute,
unambiguously authorizes federal courts to order restitution as a condition of
supervised release for any criminal offense, including one under Title 26, for
which supervised release is properly imposed.”).
Westbrooks does not quarrel with courts’ general authority to impose
restitution as a condition of supervised release for Title 26 offenses, but she
maintains the district court based its restitution order on the wrong statute.
We have vacated restitution orders if the record shows that, although the
district court could have imposed restitution as a condition of supervised
release, it did not do so. See Feast, 614 F. App’x at 196–97; Ortiz, 252 F. App’x
at 666. But that is not what happened here. The presentence report correctly
states that “[b]ecause this is a Title 26 offense, mandatory restitution is not
applicable” but “the Court can order restitution as a condition of [Westbrooks’s]
supervised release term.” The judgment lists restitution as a special condition
of supervision.
There is, however, some inconsistency in the judgment as it mandates
that Westbrooks begin making restitution payments before she completes her
sentence. It requires her to pay restitution to the IRS in quarterly instalments
of $25 or half of prison earnings during incarceration. And “a restitution award
due prior to the commencement of a term of supervised release is a component
of the sentence, not a condition of supervised release.” Feast, 614 F. App’x at
197 (citing United States v. Howard, 220 F.3d 645, 647 (5th Cir. 2000)). Indeed,
in Feast, we vacated a restitution award in part because it was due
“immediately,” which was inconsistent with it being a condition of supervised
release. Id. at 196. Similarly, the Seventh Circuit has held that because a
district court did not articulate that basis for restitution and ordered that it
was payable immediately, restitution was not imposed solely as a condition of
supervised release. United States v. Hassebrock, 663 F.3d 906, 924–25 (7th
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Cir. 2011); see also United States v. Dean, 64 F.3d 660, at *4 (4th Cir. 1995)
(unpublished table decision) (finding restitution award was not imposed solely
as a condition of supervised release because it was due immediately).
But in those cases the record contained few indications the district court
meant to impose restitution only as part of supervised release under 3583(d)
to counteract the clue timing provided of an improper statutory basis. And it
often was not just the timing of the restitution order that led to the conclusion
that the court relied on improper statutory authority. In both Feast and
Hassebrock, the presentence reports cited only section 3663 or section 3663A
as the basis for restitution. 614 F. App’x at 196–97; 663 F.3d at 924, 926. And
in Hassebrock, the district court had explained that only if restitution was “not
paid during imprisonment, it w[ould] be a condition of supervised release.” 663
F.3d at 924.
We thus conclude that the judgment contains an error in ordering that
Westbrooks begin making payments while in prison—a timeline that exceeds
the court’s statutory authority. But that error does not overcome the other
indications that the court intended to impose restitution under the statute
permitting it as part of supervised release. The most efficient remedy in this
situation is to modify the judgment so that Westbrooks does not owe restitution
until she begins her term of supervised release. See 28 U.S.C. § 2106; United
States v. Munoz, 549 F. App’x 552, 555–56 (7th Cir. 2013) (modifying timing of
restitution payments because district court mistakenly ordered that
restitution which could only be awarded as a condition of supervised release be
due immediately).
Westbrooks also argues that United States v. Stout, 32 F.3d 901 (5th Cir.
1994), allows courts to impose restitution as a condition of supervised release
only as part of a plea agreement. Stout states that “courts are permitted to
impose restitution as a condition of supervised release to the extent agreed to
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by the government and the defendant in a plea agreement.” Id. at 904. Stout
applied section 3663(a)(3), which states that a “court may also order restitution
in any criminal case to the extent agreed to by the parties in a plea agreement.”
18 U.S.C. § 3663(a)(3) (emphasis added). Westbrooks has not pointed to any
case holding that restitution is off limits as a condition of supervised release
when a defendant is convicted after a trial. In fact, we have recognized that
“in the absence of an agreement by the defendant, restitution may not be
ordered for a Title 26 offense except as a condition of probation or supervised
release, under 18 U.S.C. 3583(d), 3563(b)(2), and 3556.” Nolen, 523 F.3d at
332–33 (emphasis added); see also Feast, 614 F. App’x at 197. And we have
approved restitution orders as conditions of supervised release after trial and
conviction. See Nolen, 523 F.3d at 332–33; Dahlstrom, 180 F.3d at 686. We
see no basis for creating the “counterintuitive” and atextual limitation
Westbrooks proposes. See United States v. Miller, 406 F.3d 323, 329–30 (5th
Cir. 2005) (noting that section 3583 does not manifest the “counterintuitive
intention” that it “preclude[s] the imposition of restitution as a condition of
supervised release in any case in which the defendant goes to trial”).
B.
Westbrooks next objects to the amount of restitution awarded, and,
relatedly, the tax loss calculation used in determining her sentencing range.
We review the amount of a restitution award for abuse of discretion, reviewing
factual findings for clear error. United States v. Sharma, 703 F.3d 318, 322
(5th Cir. 2012). Restitution is limited to the actual loss caused by the
defendant’s offense of conviction. Id. at 323. We similarly review a loss
calculation under the Sentencing Guidelines for clear error. United States v.
Johnson, 841 F.3d 299, 303 (5th Cir. 2016). When the loss is “uncertain,” a
court may “simply make a reasonable estimate based on the available facts.”
U.S.S.G. § 2T1.1 cmt. n.1; see United States v. Reasor, 541 F.3d 366, 369 (5th
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Cir. 2008) (noting that to support a sentence, “all that is necessary is that [a
tax loss] finding be plausible in light of the record as a whole.” (internal
citations and quotation marks omitted)). For both restitution and sentencing
purposes, we “give[ ] the district court wide latitude to determin[e] the amount
of loss.” United States v. Cothran, 302 F.3d 279, 287 (5th Cir. 2002); United
States v. Aubin, 87 F.3d 141, 150 (5th Cir. 1996).
Westbrooks argues restitution should be limited to $177,258.00 in tax
loss for tax years 2007 through 2009, in other words, to losses related to the
years that were the basis for the three counts of filing false returns. But the
district court also awarded restitution for the obstruction conviction. The
$273,460 awarded represents the tax reduction Westbrooks gained by
including excessive wages and subcontractor expenses on tax returns for three
additional years from 2004–2006. The fraudulent reporting dating back to
2004 was charged as part of the obstruction offense in count one. Other circuits
have held that restitution may include tax loss caused by a violation of section
7212(a). See United States v. Scheuneman, 712 F.3d 372, 380 (7th Cir. 2013)
(“[T]he 2000–2002 tax losses were properly included within [defendant’s]
restitution obligation because they were directly attributable to his conviction
. . . for interference with administration of the Internal Revenue laws in
violation of 26 U.S.C. § 7212(a)”); United States v. Harrison, 541 F. App’x 290,
293 (4th Cir. 2013) (“[Defendant] overlooks his conviction . . . for interference
with the administration of the internal revenue laws, in violation of 26 U.S.C.
§ 7212(a). This count covered a broader swath of conduct and amply supports
the full restitution award.”). We agree with those decisions and find no error
in including tax loss dating back to 2004.
Westbrooks further objects that the record does not support the amounts
by which the IRS determined she overstated payments to JATS workers. The
IRS calculated that number “based on the actual amount of wages that were
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paid as reported by JATS Tax Service workers who testified.” The loss amount
for the years 2007 through 2009 was based on testimony at trial and was not
clearly erroneous.
Former employees did not testify at trial about their wages for the three
earlier tax years. Instead, the IRS agent testified that he reviewed bank
records and identified checks which appeared to be for payroll for those years.
The checks totaled $13,885 for 2004 (compared to $87,425 reported); $10,205
for 2005 (compared to $124,878 reported); and $2,420 for 2006 (compared to
$193,426 reported). Recognizing that JATS also paid workers in cash, in
providing a calculation for the presentence report, the IRS adjusted these
amounts upward based on statements JATS workers gave during the
investigation. This adjustment added cash payments of $11,785, $10,180, and
$13,600 to the check amounts for 2004, 2005, and 2006. Westbrooks complains
that there is no testimony in the record as to the amount employees were paid
in cash from 2004 through 2006. But she does not claim she lacked access to
the summaries of the witness interviews and in-court testimony is not
necessary to support a restitution award or loss calculation. Indeed,
information in a presentence report is generally sufficient to support an award.
United States v. Zuniga, 720 F.3d 587, 590–91 (5th Cir. 2013); United States v.
Davis, 616 F. App’x 742, 745 (5th Cir. 2015). If a defendant takes issue with
information in the report with sufficient indicia of reliability, “the defendant
bears the burden of demonstrating that the information cannot be relied upon
because it is materially untrue, inaccurate or unreliable.” United States v.
Angulo, 927 F.2d 202, 205 (5th Cir. 1991). Probation’s calculation appears
reliable given its consistency with the numbers used for the later years, and
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Westbrooks did not carry her burden of presenting “[r]ebuttal evidence.” 8
Zuniga, 720 F.3d at 591 (internal quotation marks and citation omitted). The
figure used for restitution and the loss amount is not clearly erroneous.
***
The judgment is MODIFIED so that no amount of restitution is due until
Westbrooks completes her prison sentence and begins her term of supervised
release. As modified, the judgment is AFFIRMED.
8 Westbrooks does not explain how testimony that four people worked at JATS on
some occasions invalidates the tax loss calculation.
19