United States v. Bell, John H. ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 20, 2007*
Decided March 21, 2007
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-1572
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Western Division
v.
No. 05 CR 50013
JOHN H. BELL,
Defendant-Appellant. Philip G. Reinhard,
Judge.
ORDER
John Bell was convicted after a jury trial of one count of filing a false income
tax return and three counts of assisting others with the preparation of false income
tax returns, see 26 U.S.C. §§ 7206(1); (2), and was sentenced to a prison term of 56
months. We previously granted Bell’s motion to dismiss his appointed counsel.
Proceeding pro se, Bell now appeals his conviction and sentence. We affirm.
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 06-1572 Page 2
Bell operated two businesses in Rockford, Illinois. The first, Real Estate
Investors, Inc. (“REI”), bought, renovated and sold homes. The second, Bell’s
Income Tax Service, prepared income tax returns for a fee. For several years, Bell
provided two part-time REI employees with W-2 forms that showed inflated wages
and falsely indicated that federal income taxes had been withheld. Bell used the
false W-2 forms to prepare federal income tax returns for the two employees. He
also filed a false return for himself. After a jury trial, Bell was convicted of four
counts of tax fraud.
At sentencing, Bell’s counsel objected to the presentence report’s calculation
of a tax loss in excess of $40,000 for tax years 1996 and 1997. See U.S.S.G.
§ 2T4.1(H) (1998). After considering various documents and the testimony of an
IRS agent, the district court accepted the PSR’s tax-loss calculation. Bell also
objected to the PSR’s recommended two-level increase under U.S.S.G. § 3B1.1(c) on
the ground that he was not the organizer or leader of the tax fraud scheme. But
based on the testimony and other evidence adduced at trial, the court applied a
four-level increase under § 3B1.1(a) for Bell’s leadership role in the scheme. The
total offense level of 19 and criminal history category of IV yielded a guidelines
imprisonment range of 46 to 57 months, and the court imposed a sentence for the
four offenses totaling 56 months’ imprisonment.
On appeal, Bell’s brief identifies—most for the first time—eleven challenges
to his conviction and sentence, including jurisdictional errors, allegations of
vindictive prosecution and abuse of authority by the IRS, a double jeopardy
violation, errors in the sentencing calculation, and error for failing to hold a hearing
on his ineffective assistance of counsel claims. But he mentions these challenges
only in perfunctory fashion. He does not elaborate why be believes the district court
erred, nor does he develop his arguments with citations to legal authority or the
record. See Fed. R. App. P. 28(a)(9)(A); Anderson v. Hardman, 241 F.3d 544, 545
(7th Cir. 2001). Moreover, Bell waived the issues he now seeks to raise on appeal,
except for his assertion that the tax loss was miscalculated, by failing to make the
appropriate objections or motions before the district court. Estremera v. United
States, 442 F.3d 580, 587 (7th Cir. 2006).
However, we can discern at least two arguments that warrant discussion.
First, Bell asserts in only a generalized claim of error that the district court
miscalculated the tax loss for sentencing purposes. But the district court’s tax-loss
calculation was based on credible evidence, including the fraudulent tax returns
and the sworn testimony of two IRS agents and several people for whom Bell
prepared fraudulent returns, and we can identify no clear error in the calculation.
See United States v. Olson, 450 F.3d 655, 683–84 (7th Cir. 2006).
No. 06-1572 Page 3
Next, Bell asserts for the first time that the district court used the wrong
sentencing guidelines’ table to determine his offense level and criminal history
category. Bell presumably means to suggest that the district court committed an
ex post facto violation by applying the 1998 guidelines in effect at the time he
committed the offenses rather than the 2003 version in effect at the time of
sentencing. United States v. Booker, 543 U.S. 220 (2005), however, rendered the
guidelines advisory, and thus there can no longer be an ex post facto violation
arising out of a sentencing court’s application of the guidelines. United States v.
Demaree, 459 F.3d 791, 792–95 (7th Cir. 2006). In any event, the 2003 version of
the guidelines that Bell seeks to apply would have set his base offense level at
14—one level higher than that under the more lenient 1998 version that the court
applied. See U.S.S.G. § 2T4.1(E) (2003). Thus, Bell actually benefitted from the
court’s application of the 1998 guidelines.
Accordingly, the conviction and sentence are AFFIRMED. Bell’s motion for a
judgment of aquittal or a new trial is DENIED.