United States v. Davis, Babette ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2489
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BABETTE DAVIS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04 CR 24—Charles N. Clevert, Jr., Judge.
____________
ARGUED DECEMBER 5, 2005—DECIDED MARCH 30, 2006
____________
Before POSNER, KANNE, and SYKES, Circuit Judges.
KANNE, Circuit Judge. Babette Davis pled guilty to one
count of tax fraud and appeals the district court’s order
requiring her to be taken into custody after the first day of
her two-day sentencing hearing. Davis also appeals the
district court’s enhancement of her sentence for obstruction
of justice, its denial of a downward adjustment for accep-
tance of responsibility, and claims that her sentence is
otherwise unreasonable. For the following reasons, we
affirm.
2 No. 05-2489
I. BACKGROUND
Babette Davis devised a scheme to obtain tax refunds by
filing falsified federal tax returns. The mechanics of the
fraud were simple: Use W-2 Forms to overstate wages,
taxes withheld, and the number of dependants, in order for
the participants to claim larger refunds from the IRS than
they otherwise would be entitled. In addition, the scheme
caused many of the participants to become eligible for the
Earned Income Credit which increased the amount of the
returns by around $3,000 apiece.
Between 1997 and 2001, 32 false returns were filed by 25
participants, most of whom were close relatives and friends
of Davis residing in the Milwaukee area. The scheme
claimed refunds totaling $136,635, of which the IRS paid
$61,745 before detecting the fraud.
At first, the participants provided Davis with their W-2
Forms, which Davis then altered. As the fraud progressed
over time, Davis began to use blank W-2 Forms. She
supplied the participants with wage and withholding
amounts as well as personal information for made-up
dependants. Davis suggested to participants that they file
their tax returns at particular H&R Block locations. The
participants usually filed their returns electronically and
then applied for refund anticipation loans from H&R Block.
While awaiting the loan disbursements, Davis maintained
a watchful eye, sometimes calling H&R Block to learn the
loans’ status, and also accompanying participants to pick up
the loan checks and cash them.
As the mastermind, Davis took a portion of the funds as
a fee for her “services,” ranging from $500 up to half the
value of the refund. Davis was also a participant in the
fraud, having filed false claims on her own tax returns for
1997 and 1998. Several patterns emerged in the scheme’s
execution, causing the IRS to open an investigation. IRS
No. 05-2489 3
agents met with Davis in July 2002. Davis denied responsi-
bility for the scheme and told the agents that Bo McAfee (by
that time deceased) and Lisa Leonard prepared her false W-
2 Forms for 1997 and 1998. In fact, Davis had prepared
them.
Through re-investigation, IRS agents learned that one of
the ringleaders was known as “Miss T,” but they did not
know Miss T’s true identity. Suspecting Davis was more
heavily involved than she previously let on, IRS agents,
including IRS Special Agent Brandon Bielke, interviewed
her three times in August 2002. During these meetings
Davis identified Michael Wimpy as the scheme’s orchestra-
tor and also stated that Wimpy was Miss T. Davis said that
Wimpy falsified the W-2 Forms and that her only involve-
ment was to provide transportation for Wimpy as he
delivered the forms to the participants. Davis also claimed
she was looking for Wimpy—to assist in the investigation.
Davis’s revelations of Wimpy led Bielke to interview other
participants and conduct his own research. Beginning his
inquiry without having the correct spelling of Wimpy’s
name, Bielke identified several subjects with the same
name. Bielke searched Social Security and IRS records to
determine which among them was the person Davis had
referenced.
Bielke learned that Wimpy had suffered from AIDS since
at least 1998 and was very ill while the scheme took place.
Wimpy resided in Minnesota from 1999 to 2000 and then
moved to Milwaukee in 2000 to live with his sister, Theresa
Shumpert. According to Shumpert, Wimpy did not know
how to prepare income tax returns, and she had never
heard him mention income taxes nor had she seen him with
any tax returns or W-2 Forms. Based upon Wimpy’s illness,
his whereabouts, and the lack of any corroborating evi-
dence, Bielke concluded that Wimpy had nothing to do with
4 No. 05-2489
the scheme. Bielke also learned that Wimpy died in July
2002, and that Davis had attended his funeral.
In addition to lying to investigators, Davis sought assis-
tance from participants to conceal her role. In the summer
of 2000, after becoming aware of the investigation, Davis
told participant Shamela Clark that she was under investi-
gation by the IRS and instructed Clark not to mention her.
However Clark admitted to authorities that Davis prepared
her fraudulent W-2 Form. As the investigation was gaining
momentum, during the summer of 2002, Davis urged
participants Damen Olds and Dorothy Glenn to tell agents
that Wimpy was the ringleader. Both refused and cooper-
ated with the investigation. In all, 13 participants named
Davis as the person responsible for the scheme, and several
implicated Davis in her attempts to deflect the IRS’s
scrutiny.
On February 3, 2004, a grand jury returned an 11-count
indictment, the first count charging Davis with conspiracy
and the remaining counts charging her with filing false
income tax returns. Pursuant to a written plea agreement,
on April 27, 2004, Davis pled guilty to Count 2, which
charged her with fraudulently filing her own tax return for
the 1998 tax year in violation of 18 U.S.C. § 287 and § 2. In
exchange, the Government agreed to dismiss the remaining
counts at Davis’s sentencing. Both sides agreed to dispute
the amount of loss and any potential sentencing enhance-
ments.
In the presentence report (“PSR”), the probation officer
applied the 1998 version of the United States Sentencing
Guidelines (the “Guidelines”) and recommended Davis’s
sentence be enhanced under the Guidelines for loss, role,
more than minimal planning, and obstruction of justice.
The PSR also recommended that Davis not be given a
downward adjustment for acceptance of responsibility.
Davis objected to all of them. Davis’s sentencing was
No. 05-2489 5
delayed for a year (apparently because of Blakely/Booker
uncertainty) during which time she was free on bail and
complied with the conditions of her bond.
On April 29, 2005, the sentencing hearing began. Scheme
participants Dorothy Glenn and Angela Evans testified that
Davis prepared fraudulent income tax returns for them and
for other participants. Agent Bielke testified and summa-
rized the scheme. Bielke also explained how Davis had
blamed Wimpy and Bielke’s subsequent inquiry. At the
conclusion of Bielke’s testimony, counsel for Davis re-
quested the hearing be continued to another date for his
cross-examination. The court agreed to do so but ordered
Davis to be remanded into custody immediately, explaining:
[G]iven what I’ve heard thus far and the objections
which have been raised by the defense it is clear that
the Court will be imposing a sentence of incarceration.
Also, as I noted earlier, the defendant’s demeanor
during the course of this hearing leads me to conclude
that it would be prudent for me to remand her to the
custody of the U.S. Marshal pending the completion of
the sentencing hearing . . . .
I certainly understand that [Davis complied with the
terms of her bail] and I am not aware of any significant
violations at this time unless there is something that
has occurred recently that has not been brought to my
attention. But regardless, the Court is satisfied that if
all of the objections of the defense are sustained it will
still be necessary and appropriate that the defendant be
remanded to the custody of the U.S. Marshal today.
Whether or not the defendant will show up at other
proceedings is of secondary concern. Of primary con-
cern, however, is how the defendant will handle herself
between now and those proceedings. And so it is my
conclusion that this matter be concluded one way or the
6 No. 05-2489
other today by the defendant going into the custody of
the U.S. Marshal.
On May 10, 2005, Davis’s sentencing continued, and
Bielke was cross-examined. The district court found that
the obstruction enhancement was appropriate because
Davis lied to investigators before her arrest, leading them
on a “wild goose chase,” and because Davis attempted to get
other people to lie on her behalf. The court did not grant
Davis a downward adjustment for acceptance of responsibil-
ity. With a total offense level of 21, and criminal history
category of II, the court determined the applicable advisory
guideline range to be 21 to 41 months’ imprisonment. Then
the court heard statements from Davis and her counsel. The
court concluded:
[T]he Court is mindful of its responsibility under Title
18 Section 3553 to take into account multiple factors in
imposing a sentence. And, indeed, the Court has given
thought to not only the impact of this offense on the
U.S. Treasury and the community but also the need to
deter others from engaging in similar conduct and the
need to protect [Davis’s foster children]. . . . It is also
important in this Court’s mind to exact an appropriate
measure of punishment for Miss Davis’s conduct. And
I am especially mindful of the need to make clear that
the obstruction which took place here has to result in a
somewhat harsh penalty. Therefore, on the basis of the
plea . . . it is the judgment of the Court after taking into
consideration all of the factors as set forth in Title 18
Section 3553(a)(2) and also with due regard for the
advisory guidelines that a sentence of 41 months be
imposed . . . .
The court also ordered Davis’s prison term to be followed by
3 years supervised release, the mandatory $100 special
assessment, and $61,745 in restitution.
Davis raises four issues on appeal. First, Davis asserts
that the district court’s remand effectively constituted the
No. 05-2489 7
impermissible imposition of a sentence without calculating
the Guideline range and violated her right of allocution.
Second, Davis challenges her sentence enhancement for
obstruction of justice. Third, Davis claims she was entitled
to a downward adjustment for acceptance of responsibility.
Finally, Davis claims her sentence was unreasonable
because the district court failed to meaningfully address the
factors set forth under 18 U.S.C. § 3553.
II. ANALYSIS
A. District Court’s Remand Order
Davis challenges the district court’s order on April 29,
2005, remanding her into custody. The government
contends—without citation—that we have no jurisdiction to
consider the issue because the remand order is not part of
Davis’s judgment of conviction or her sentence. The govern-
ment alternatively asserts that the issue is moot. The
government would be correct if Davis were seeking outright
release, but she is not. See 18 U.S.C. § 3145(c) (granting
independent avenue of appeal for custody orders). Davis
argues the alleged erroneous remand order had a measur-
able effect upon issues which are subject to our jurisdiction.
Davis claims that the remand order effectively constituted
the imposition of a sentence without calculating the Guide-
line range, denying her purported rights of allocution and
surrender, which is sufficient for our jurisdiction. See 18
U.S.C. § 3742(a).
Central to Davis’s claim is her characterization of the
district court’s April 29 remand to custody order as a
“sentence” rather than a mere revocation of bail. The right
of allocution must be afforded prior to imposition of a
sentence, but it does not accrue earlier. See Fed. R. Crim. P.
32(i)(4)(A). The same is true of the court’s duty to calculate
the Guideline range. See United States v. Booker, 543 U.S.
220, 264 (2005) (“The district courts, while not bound to
8 No. 05-2489
apply the Guidelines, must consult those Guidelines and
take them into account when sentencing.”) (citations
omitted) (emphasis added). When the court ordered Davis
be taken into custody on April 29, it did so contemplating
Davis’s return for the conclusion of her sentencing. Al-
though the district court did not use the words “revocation
of bail,” that is what the court did by remanding Davis into
custody as it was required to do. See 18 U.S.C. § 3143(a)
(creating a post-conviction presumption of detention
pending sentencing). Hence, Davis’s right of allocution and
the court’s duty to consult the Guidelines were not at stake
on April 29 because the court’s incarceration order did not
amount to a “sentence.”1 Id.B. Enhancement for Obstruction of Justice
Davis challenges the district court’s enhancement of her
sentence for obstruction of justice under section § 3C1.1 of
the Guidelines. A district court’s determination that a
defendant obstructed justice is a factual finding which we
review for clear error. United States v. Sutton, 337 F.3d 792,
801 (7th Cir. 2003) (citation omitted); United States v.
Jackson, 935 F.2d 832, 849 (7th Cir. 1991) (citations
omitted); United States v. Teta, 918 F.2d 1329, 1332 (7th
Cir. 1990) (citation omitted). We will not overturn such a
1
As for the alleged violation of her purported right to surrender,
Davis first made this assertion at oral argument, having not
addressed it in her briefs. Although voluntary surrender is a
common practice, it is not a right. Without even minimal briefing
on the matter, and with no basis in the record to determine
whether Davis did suffer a deprivation, we need not consider the
issue. See United States v. Turcotte, 405 F.3d 515, 536 (7th Cir.
2005) (“In this circuit, unsupported and undeveloped arguments
are waived.”) (citations omitted); Anderson v. Gutschenritter, 836
F.2d 346, 349 (7th Cir. 1988) (citations omitted).
No. 05-2489 9
finding unless we are left with a “definite and firm convic-
tion that a mistake has been committed.” United States v.
Lanzotti, 205 F.3d 951, 956 (7th Cir. 2000) (citation and
quotations omitted). Davis argues that the false statements
she made to investigators prior to her arrest did not
substantially obstruct or impede the investigation, and that
her unsuccessful attempts to influence scheme participants
before she was arrested likewise lack the severity necessary
for the enhancement to apply, a weak argument at best.
An enhancement for obstruction of justice should be
applied if the defendant has “willfully obstructed or im-
peded, or attempted to obstruct or impede, the administra-
tion of justice during the course of the investigation” and
the conduct relates to the defendant’s offense of conviction.
U.S. Sentencing Guidelines Manual § 3C1.1 (1997). Because
the prohibited conduct of § 3C1.1 includes mere attempts to
obstruct justice, a defendant need not be successful in order
for the enhancement to apply. See id. Therefore it is no
defense for Davis that the investigation eventually revealed
her to be “Miss T” or that several scheme participants
refused Davis’s request to implicate Michael Wimpy.
A mere denial of guilt does not warrant an enhancement
for obstruction. See United States v. Fiala, 929 F.2d 285,
289-90 (7th Cir. 1991). Rather, obstruction requires the
defendant’s conduct to significantly impede the progress of
the investigation. See United States v. Kroledge, 201 F.3d
900, 908 (7th Cir. 2000) (citations omitted) (finding obstruc-
tion of justice enhancement warranted where defendant
concocted a false set of facts to lead investigators to a
witness whom defendant attempted to influence and
defendant’s concealed activity led directly to defendant’s
conviction for underlying crime).
Davis does not dispute that she was aware she was being
investigated for tax fraud, and that she blamed the scheme
on two dead men when agents interviewed her. Agent
10 No. 05-2489
Bielke testified that he had to conduct several interviews
and perform a background check to determine whether
Michael Wimpy was involved in the scheme. Moreover, the
content of Davis’s misinformation was that Wimpy was the
preparer of Davis’s false tax return, the crime for which she
pled guilty.
Additionally Davis does not dispute that she contacted
scheme participants and urged them to tell her made-up
story to investigators. It is “clear that attempting to
influence a witness to make false statements to investigat-
ing authorities qualifies as an obstruction of justice under
§ 3C1.1.” United States v. Sutton, 337 F.3d 792, 801 (7th
Cir. 2003) (citations omitted). The only argument Davis
makes here is that her effort was “pathetic” as compared to
other instances where we have found the enhancement was
warranted for concerted conduct. Again, the enhancement
does not apply by matter of degree of success; it is Davis’s
attempt that counts. There is no reason why Davis should
not have received a sentence enhancement for obstruction
of justice.
C. Adjustment for Acceptance of Responsibility
Next, Davis claims she was entitled to a downward
adjustment under § 3E1.1(a) of the Guidelines for accep-
tance of responsibility. We review a district court’s factual
finding regarding acceptance of responsibility for clear
error. United States v. Taliaferro, 211 F.3d 412, 414 (7th
Cir. 2000) (citation omitted). A defendant whose sentence
was properly enhanced for obstruction of justice is pre-
sumed not to have accepted responsibility. United States v.
Partee, 301 F.3d 576, 580-81 (7th Cir. 2002) (citation
omitted). It is only under exceptional circumstances that a
defendant who has received a sentence enhancement for
obstruction of justice will be given a downward adjustment
for acceptance responsibility. United States v. Lallemand,
No. 05-2489 11
989 F.2d 936, 938 (7th Cir. 1993) (citing application note 4
to section 3E1.1 of the Guidelines).
Davis claims hers is the exceptional case because she
submitted to the court a statement entitled “Acceptance of
Responsibility”, in which she acknowledged her crimes, the
harm they caused, and the need to minimize the impact of
her actions. Davis also claimed that she wished to live a
positive life as a responsible member of the community.
Davis did express her contrition, but only after pleading
guilty to the crime. See United States v. Ewing, 129 F.3d
430, 435-36 (7th Cir. 1997) (noting that timeliness of
defendant’s purported acceptance is relevant in the reduc-
tion inquiry). Davis has not presented any evidence that she
negated the effect of her obstruction or otherwise facilitated
the progress of the investigation, and her guilty plea,
without more, will not carry the day for her. See United
States v. McIntosh, 198 F.3d 995, 999 (7th Cir. 2000).
D. Reasonableness of Davis’s Sentence
Finally, Davis claims her sentence is unreasonable
because the district court did not adequately consider the
factors set forth in 18 U.S.C. Section 3553(a). After United
States v. Booker, 543 U.S. 220, 259-60 (2005), it became
mandatory for district courts to consider the sentencing
factors in § 3553(a). “Judges need not rehearse on the
record all of the considerations that 18 U.S.C. § 3553(a)
lists; it is enough to calculate the range accurately and
explain why (if the sentence lies outside it) this defendant
deserves more or less.” United States v. George, 403 F.3d
470, 472-73 (7th Cir. 2005). Although a judge must articu-
late the factors supporting the sentence he will impose, “his
duty ‘to consider’ the statutory factors is not a duty to make
findings” where the material facts are not in dispute.
United States v. Dean, 414 F.3d 725, 729-30 (7th Cir. 2005)
(citation omitted).
12 No. 05-2489
Here Judge Clevert noted he was aware of his duty under
§ 3553(a) “to take into account multiple factors in imposing
a sentence.” Without listing the factors specifically, the
court continued its colloquy with the § 3553(a) factors
clearly in mind, mentioning that Davis’s sentence reflected
the impact of her crime, the deterrence of others, her family
situation, and her obstructive conduct. Before imposing
Davis’s sentence, Judge Clevert concluded, “it is the
judgment of the Court after taking into consideration all of
the factors as set forth in Title 18 Section 3553(a)(2). . . .”
(emphasis added). The district court did not merely pay lip
service to the statutory factors but instead noted how
certain aspects of Davis’s case fit under the statute. The
court was not required to make specific findings of fact.
Finally, a sentence within the Guidelines is presumed to
be reasonable. United States v. Mykytiuk, 415 F.3d 606, 608
(7th Cir. 2005). It is undisputed that Davis’s sentence is
within that range, giving rise to the presumption of reason-
ableness. Because the district court properly weighed the
factors of § 3553(a) before stating independent reasons for
the sentence it imposed, we find no error in Davis’s sen-
tence.
III. CONCLUSION
The district court acted properly by remanding Davis into
custody on May 29, 2005, and subsequently finding obstruc-
tion of justice and no acceptance of responsibility. Davis’s
41-month sentence is reasonable, and for the foregoing
reasons, Davis’s sentence is AFFIRMED.
No. 05-2489 13
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-30-06