United States v. Musurlian, Dennis , 209 F. App'x 592 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 29, 2006
Decided December 22, 2006
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-1974
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Eastern District of
Wisconsin
v.
No. 05-CR-137
DENNIS MUSURLIAN,
Defendant-Appellant. J.P. Stadtmueller,
Judge.
ORDER
Dennis Musurlian pleaded guilty to filing a fraudulent income tax return for
1997 and possessing an unregistered pipe bomb. See 26 §§ U.S.C. 7206(1), 5861(d).
Counsel now seeks to withdraw under Anders v. California, 386 U.S. 738 (1967),
because she is unable to discern any nonfrivolous basis for appeal. We grant
counsel’s motion to withdraw, and dismiss the appeal.
During a tax investigation, Internal Revenue Service agents executed a
warrant to search for business records at Musurlian’s car repair shop and, to their
surprise, found a pipe bomb. Consequently, Musurlian entered a plea agreement
with the government, in which he admitted that he possessed the pipe bomb and
understated his 1997 taxes by more than $34,000. A probation officer, however,
found that Musurlian also understated his taxes from 1997 to 2001, amounting to
an estimated $244,000 in tax losses.
No. 06-1974 Page 2
During the sentencing hearing, Musurlian objected to using the tax loss
figure from 1997 to 2001 to calculate his offense level, arguing instead that because
he pleaded guilty to tax fraud for 1997, the court should use the figure from that
year alone. The government agreed, noting that it could not prove the estimated
losses from 1998 to 2001. The government and Musurlian also agreed that the
court should use the version of the guidelines in effect in March 1998, the date
Musurlian filed his fraudulent return, to calculate the tax fraud offense level,
because using the current version of the guidelines, which set the tax fraud offense
level two steps higher, raised ex post facto concerns. Compare U.S.S.G. § 2T4.1(E)
(2005) (setting offense level at 14 for tax loss between $30,000 and $80,000), with
U.S.S.G. § 2T4.1(6) (1997) (setting offense level at 12 for tax loss between $23,500
and $40,000).
The court agreed with the parties, and calculated the tax offense level
according to the 1997 tax loss figure and the 1997 verison of the guidelines.1**In
reaching his total offense level, the court refused to group the tax fraud count with
the count of unlawful possession of a bomb, but the court did reduce the total
offense level based on Musurlian’s early acceptance of responsibility. The court
then sentenced Musurlian to 27 months’ imprisonment, the bottom of the guidelines
range. See U.S.S.G. §§ 2K2.1, 3D1.2, 3D1.4.
We invited Musurlian to respond to counsel’s Anders motion, see Cir. R. 51(b),
but he has not done so. Thus, our review is limited to the potential issues identified
in counsel’s facially adequate brief. See United States v. Johnson, 248 F.3d 655,
667-68 (7th Cir. 2001).
Counsel first considers whether Musurlian could argue that the district court
miscalculated the offense level for his tax count. In particular, counsel asks
whether Musurlian could contest the court’s use of the 1997 version of the
guidelines, instead of the current version of the guidelines at the time of his
sentencing. See U.S.S.G. §§ 1B1.11(a), (b). But as counsel notes, the use of the
1997 version actually benefitted Musurlian because it set the offense level lower
than the current verison. Although the government agreed to recommend the use
the 1997 version of the guidelines to avoid ex post facto concerns, we note that
applying changes in the guidelines retroactively does not violate the ex post facto
1
Counsel’s brief refers to the guidelines in effect in March 1998 as the “1998
version of Guidelines.” But we refer to the 1997 version of the guidelines, effective
from November 1, 1997 to October 31, 1998, which was the operative version at the
time of Musurlian’s tax offense. The penalties, at any rate, are identical under both
the 1997 and 1998 versions.
No. 06-1974 Page 3
clause because the guidelines are only advisory, not binding laws or regulations.
See United States v. Demaree, 459 F.3d 791, 195 (7th Cir. 2006).
Counsel next asks whether Musurlian could argue that the 1997 tax loss
figure is overstated. She notes that while the district court did base the amount of
tax loss on the 1997 figure alone, that amount may still be overstated because the
court refused to consider any legitimate, yet unclaimed deductions for his payment
of invoices reflecting the cost of inventory for the car repair shop. The guidelines
provide that tax loss should “be treated as equal to 28% of the unreported gross
income . . . unless a more accurate determination of the tax loss can be made.”
U.S.S.G. § 2T1.1(c), note A. Counsel considers whether applying unclaimed
deductions could lead to “a more accurate determination.” However, we have
concluded that this guidelines provision “simply allows the defendant or the
government to argue for a rate that is more accurate than the 28% presumptive
rate.” United States v. Chavin, 316 F.3d 666, 679 (7th Cir. 2002). In Chavin, we
reasoned that the proper basis for the tax loss figure is the “attempted or intended
loss, rather than the actual loss to the government,” Id. at 677 (emphasis in
original), and therefore held that “[c]onsidering unclaimed deductions is outside of
the purview of what we are trying to accomplish in tax-loss calculations.” Id. at
679. Counsel correctly points out that in light of Chavin, any challenge to the
district court’s refusal to consider unclaimed deductions in the tax loss figure would
be frivolous.
Counsel next asks whether the district court properly refused to group the
tax offense and the bomb offense. See U.S.S.G. § 3D1.2. Under the guidelines,
offenses “involving substantially the same harm” can be grouped, id; United States
v. Brisson, 448 F.3d 989, 992 (7th Cir. 2006), and counsel considers whether the
court erroneously found that the harm caused by tax fraud and possession of a pipe
bomb were not substantially the same. But counsel correctly concludes that the two
offenses do not create similar harms because they affect different victims and arise
from separate transactions; therefore any challenge to the court’s decision not to
group the offense would be frivolous. Finally, counsel considers whether
Musurlian could argue that the district court should have sentenced him below the
guidelines range. Counsel notes that Musurlian could argue that the court
insufficiently considered the § 3553(a) factors when sentencing him to a within-
guidelines sentence. But because Musurlian’s sentence falls within the properly
calculated guidelines range, it is presumed reasonable, and counsel says she cannot
find any basis to rebut this presumption. See United States v. Mykytiuk, 415 F.3d
606, 608 (7th Cir. 2005). Although the Supreme Court has recently granted a writ
of certiorari to consider whether according a presumption of reasonableness to
within-guidelines sentences is consistent with United States v. Booker, 543 U.S. 220
(2005), see United States v. Rita, No. 05-4674, 2006 WL 1144508 (4th Cir. May 1,
2006), cert granted, 75 U.S.L.W. 3246 (U.S. Nov. 3, 2006) (No. 06-5754), the
No. 06-1974 Page 4
resolution of that case would not affect our conclusion that a challenge to
Musurlian’s’s sentence would be frivolous. Here, the district court fulfilled its duty
to consider the sentencing factors under § 3553(a), and chose the sentence after
carefully weighing the seriousness of his crimes against his particular
characteristics, including his age (he was 65 years old at sentencing), his standing
in the community as a small business owner, and his lack of a criminal record. See
United States v. Juarez, 454 F.3d 717, 721 (7th Cir. 2006).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.