United States v. Tockes, Brian ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-3294
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRIAN TOCKES,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 07 CR 10019—Joe Billy McDade, Judge.
____________
ARGUED FEBRUARY 21, 2008—DECIDED JUNE 27, 2008
____________
Before FLAUM, RIPPLE and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Brian Tockes, the owner of a
home repair and construction company, pled guilty to
two counts of filing a false income tax return, in viola-
tion of 26 U.S.C. § 7206(1). The district court determined
that the applicable sentencing guideline range was
twenty-four to thirty months’ imprisonment. The court
nonetheless sentenced Tockes to the statutory maximum
of thirty-six months’ imprisonment on each count, to be
served concurrently. Tockes appeals his sentence and
we affirm.
2 No. 07-3294
I.
The Par-A-Dice Riverboat Casino in Peoria bills itself
as “The Friendliest Casino on the Water.” See http://www.
paradicecasino.com/site/casino (last visited May 9, 2008).
The casino is open daily from 9 a.m. to 6 a.m., meaning it
is closed for a mere three hours each day. Par-A-Dice
claims to offer a “unique entertainment experience” for
both the “pleasure seeker” and the “serious gambler.” The
casino recognizes that, “for a small segment of our popu-
lation, gambling is not entertainment,” but rather a
source of problems. On the casino’s website, if one clicks
the ironically titled “Responsible Gaming” icon, one may
learn the warning signs for irresponsible gaming, in-
cluding losing time from work due to gambling, repeated
failed attempts to stop gambling, lying about the amount
of money spent on gambling, and gambling to escape
from life’s problems. Absent from the list of warning
signs is fleecing the elderly clients of your home con-
struction business to support your gambling habit. Tockes
heard the siren call of the casino, and apparently was
unable to resist.
In the early 1990’s, Russell and Mara Lee James hired
Tockes to repair their Peoria home. The Jameses were in
their mid-seventies at the time, and in the ensuing
years, they developed a friendship with Tockes. The
couple had no family members living nearby and came
to regard Tockes as a nephew. They relied on him for,
among other things, transportation to doctors’ appoint-
ments, shopping, bill paying, and collection of rent on
properties they owned. For many years, this relationship
was uneventful. In late 1999, when the Jameses were in
their eighties, Tockes arranged for them to move into a
nursing home. Around the same time, he began gambling
No. 07-3294 3
at the Par-A-Dice Casino. He also began fraudulently to
bill the Jameses for home repairs. Over the next few
years, Tockes managed to transfer ownership of the
Jameses’ home to his (Tockes’) son and son-in-law for a
fraction of its worth, helping himself to some of the pro-
ceeds. He also charged the Jameses for work he com-
pleted on his own house, billed them for repairs to the
house they had sold, used their ATM card at the casino
to pay for his gambling, and caused them to cash out
certificates of deposit and borrow against their life insur-
ance policies in order to cover his mounting gambling
losses. Between 1999 and 2003, Tockes swindled the
Jameses to the tune of $470,000. Tockes’ gambling losses
for the years 2000 through 2006 exceeded $450,000.
For the tax years 2000, 2001 and 2002, Tockes failed to
report on his federal income tax return the money he
obtained by fraud from the Jameses. For the year 2000,
Tockes reported income of $74,483 when, in fact, his
income was approximately $220,000. For 2001, Tockes
reported a total income of $24,997 when the amount
was actually closer to $165,946 due to the fraud. For
2002, Tockes reported $64,106 of income when the true
total was approximately $95,625. The tax loss to the
United States from these three years of under-reporting
amounted to $141,495. The loss to the Jameses was, of
course, much worse. Tockes was charged with three
counts of filing a false income tax return in 2000, 2001 and
2002. He pled guilty to the first two counts and the gov-
ernment moved to dismiss the third count.
By the time of Tockes’ sentencing hearing in 2007,
Russell James had died and Mara Lee was suffering from
dementia. At the hearing, the government presented
evidence that law enforcement officers had discovered a
4 No. 07-3294
second set of victims, Nancy and Virginia McNear, an
eighty-five year old woman and her fifty-six year old
daughter. As with the Jameses, the government presented
evidence that Tockes overcharged the McNears in con-
nection with work he was supposedly performing on
their home. Between May 2004 and mid-2006, Tockes
collected $800,000 from the McNears for home improve-
ments. The government alleged that, as part of this
scheme, Tockes purchased materials for his work at the
McNears’ home, substantially inflated the bill, and then
returned some of the materials for a refund that he
then pocketed. In one instance, he charged the McNears
$4000 for $400 worth of materials, and then returned
some of the materials for a $200 refund. Tockes thus
caused the McNears to pay $4000 for materials worth
$200, a twenty-fold mark-up. He also charged them a
$5000 fee for an “asbestos removal tax” when there is no
such tax in Illinois. Illinois prosecutors charged Tockes
with aggravated home repair fraud and theft in connec-
tion with his work on the McNears’ home.
At the time of his sentencing in the federal income tax
offense case, the state charges had not been resolved. In
the district court, Tockes objected to the admission of any
evidence relating to the state home repair fraud charges
for the purposes of sentencing. Specifically, his attorney
argued that another lawyer represented Tockes in the
state case and he was thus unfamiliar with the charges
and unable to adequately respond. He also contended
that Tockes would have no way to defend himself
against this line of evidence without risking incriminating
himself in the state court action, and that evidence of
this other, unrelated and unproven offense was not a
proper consideration for sentencing. As a result of this
No. 07-3294 5
objection, the district court limited the evidence of the
state charges to “the charge and the basis for the charge.”
Tr. at 21.
The government sought a two-point enhancement under
sentencing guideline 3B1.3, for abuse of trust, contending
that Tockes held a position of trust with the Jameses
and abused that trust when he defrauded them. Tockes
objected to this enhancement, and the district court ac-
cepted his argument that he did not hold with the Jameses
a position of trust “characterized by professional or
managerial discretion,” as required by section 3B1.3. See
U.S.S.G. §3B1.3, Application Note 1. As a result, the
court calculated Tockes’ guideline offense level as 17,
with a criminal history category of I, resulting in a sen-
tencing range of twenty-four to thirty months. The court
then sentenced Tockes to the statutory maximum of thirty-
six months’ imprisonment on each count, to be served
concurrently. After setting the length of the term, the
court commented:
And you know, I’m sure that sounds like a lot of time,
but, sir, everyday I send young people, 25, 22, 23
years old to 40, 50 years in prison, 20 years in prison
for—they sold sometimes very small quantities of
drugs to people and that’s very bad and they pay a
heck of a penalty for it. So I find it very difficult to
give those young men, who admittedly have not been
good family people, usually aren’t working, aren’t
supporting their children, and they don’t have charac-
ter letters, but they go away, and I think fairness
requires that you go away, too.
Tr. at 52. The sentencing judge also remarked:
I thought about making these sentences [run] consecu-
tively because that’s a possibility too. I could have said
6 No. 07-3294
three years on each county [sic] to run consecutive[ly];
that would be six years[.]
Tr. at 53. The court ultimately concluded that a sentence
of three years, no more, no less, was sufficient to meet the
goals of sentencing. Tockes appeals.
II.
On appeal, Tockes raises three objections to his sen-
tence and sentencing proceedings. First, he contends that
the court erred when it specified that he could receive up
to six years’ imprisonment. Second, he complains that
the court used an improper factor in sentencing him
when it considered the lengthy sentences meted out to
small-time drug dealers in determining the length of his
sentence for tax evasion. Finally, he asserts that the
court erred in allowing testimony relating to pending
state court charges.
We review all sentences under a deferential abuse of
discretion standard. Gall v. United States, 128 S. Ct. 586, 591
(2007); United States v. Sura, 511 F.3d 654, 664 (7th Cir.
2007). Although the extent of the difference between a
particular sentence and the recommended guidelines
range is relevant, we afford deference to the district
court’s judgment whether a sentence is “inside, just
outside, or significantly outside” the guidelines range. Gall,
128 S. Ct. at 591. Our deferential review is limited to
determining whether a given sentence is reasonable. Gall,
128 S. Ct. at 594; Sura, 511 F.3d at 664. When a district
court decides to depart from the guidelines range, it “must
give serious consideration to the extent of any departure”
from the guidelines and must explain its conclusion “that
an unusually lenient or an unusually harsh sentence is
No. 07-3294 7
appropriate in a particular case with sufficient justifica-
tions.” Gall, 128 S. Ct. at 594. The Supreme Court has
rejected an appellate rule that requires extraordinary
circumstances to justify a sentence outside the guide-
lines range, and also has rejected a rigid mathematical
approach that compares the percentage of the departure
with the strength of the justification. Gall, 128 S. Ct. at 594-
95. After correctly calculating the guidelines range, the
district court must consider all of the section 3553(a)
factors, making “an individualized assessment based
on the facts presented.” Gall, 128 S. Ct. at 596-97; United
States v. Miranda, 505 F.3d 785, 791 (7th Cir. 2007). The
district court must then adequately explain a particular
sentence to allow for meaningful appellate review. Gall,
128 S. Ct. at 597.
Tockes does not contend that the district court cal-
culated the guidelines range incorrectly, and so we
review the sentence for reasonableness. Tockes first
complains that the district court erred in concluding that
the maximum sentence was six, rather than three years.
True, the statutory maximum for each count was three
years’ imprisonment, see 26 U.S.C. § 7206, but Tockes
was convicted of two counts of filing false tax returns. The
guidelines provide that these two closely related counts
should be grouped together for sentencing purposes,
and typically such sentences run concurrently. See
U.S.S.G. § 3D1.2(d). But the guidelines are merely ad-
visory, and as a statutory matter, the court was free to
impose the sentences concurrently or consecutively after
considering the section 3553(a) factors. See 18 U.S.C.
§ 3584(b) (“The court, in determining whether the terms
imposed are to be ordered to run concurrently or consecu-
tively, shall consider, as to each offense for which a term of
8 No. 07-3294
imprisonment is being imposed, the factors set forth in
section 3553(a).”). The district court was therefore correct in
stating that the maximum sentence for the two counts
could go as high as six years if served consecutively.
Tockes also contends that the court improperly com-
pared his tax offense to drug trafficking crimes. He con-
tends that it is “illegal” for the court to conclude that he
should serve time in prison because other defendants
who committed dissimilar crimes are sometimes sent to
prison for lengthy periods of time; he states that Congress
did not intend for the courts to use such a consideration
as a sentencing factor. In context, it is difficult to see how
the court’s general comments on this subject, which came
after the court announced the sentence, affected the
calculation, and Tockes offers no theory to explain how
he believes this comparison affected his sentence. Nor
does he offer any citation to law in support of his claim
of illegality. Unsupported and undeveloped arguments
like this are considered waived. United States v. Warren,
454 F.3d 752, 764 (7th Cir. 2006). In any case, the court
was simply explaining to Tockes that, although his sen-
tence may have seemed harsh to him, the court was
accustomed to imposing heavy sentences for seem-
ingly small crimes that caused great social harms. There
was nothing improper much less illegal about this com-
ment.
Tockes next asserts that the district court erred when
it allowed testimony regarding a pending state court
charge. He conceded that the court could appropriately
consider the state court indictment in determining his
sentence, but he objected to the testimony of an investigator
from the office of the State’s Attorney in Peoria County
concerning the facts underlying the charges. The court
No. 07-3294 9
acted well within its discretion in allowing and con-
sidering the limited testimony of the state investigator. By
statute, “[n]o limitation shall be placed on the informa-
tion concerning the background, character, and conduct
of a person convicted of an offense which a court of the
United States may receive and consider for the purpose
of imposing an appropriate sentence.” 18 U.S.C. §3661.
Under section 3553(a), the court is required to consider,
among other things, the history and characteristics of the
defendant. The court may “appropriately conduct an
inquiry broad in scope, largely unlimited either as to
the kind of information [it] may consider, or the source
from which it might come.” United States v. Vitrano, 495
F.3d 387, 390 (7th Cir. 2007) (quoting United States v.
Nowicki, 870 F.2d 405, 406-07 (7th Cir. 1989)). Cf. United
States v. Haskins, 511 F.3d 688, 695 (7th Cir. 2007) (the
court may consider charges that were dismissed but
were related to the offense of conviction in setting an
appropriate sentence). That information may include
reliable evidence of wrongdoing for which the de-
fendant has not been convicted. Vitrano, 495 F.3d at 390.
Evidence related to the state fraud charges certainly
comes within this purview. The court is also obliged to
set a sentence designed to protect the public from further
crimes of the defendant, and evidence of recidivism is
relevant to that inquiry. There was nothing improper in
the consideration of this limited amount of evidence
regarding the basis for the state court charge.
We consider lastly whether the sentence is reasonable.
Other than the three issues discussed above, Tockes
complains only that the sentence is a substantial departure
from the guidelines and is not adequately supported by
the particular circumstances of his case. The sentence of
10 No. 07-3294
thirty-six months exceeded the top of the guidelines
range by six months. The Supreme Court finds “it uncon-
troversial that a major departure should be supported
by a more significant justification than a minor one.”
Gall, 128 S. Ct. at 597. To Tockes, this twenty percent
increase amounts to a major departure, but the govern-
ment characterizes the increment as “modest.” No matter
how the difference is characterized, we afford deference
to the district court on the question of reasonableness.
Gall, 128 S. Ct. at 591. The district court touched on nearly
all of the section 3553(a) factors in reaching the sentence.
The court recognized that Tockes was different from the
typical tax evader. The income he failed to report was
derived from defrauding a vulnerable elderly couple at
or near the end of their lives, a couple who had grown to
trust him and regard him as a family member. Because
one of the victims had died and the other was suffering
from dementia by the time Tockes’ crime came to light,
it would have been difficult to prove fraud, and so he
was charged instead with tax evasion. The court noted
that this was “a break” for Tockes because the guideline
range for fraud would have been higher than the range
for tax evasion. Moreover, there was evidence that
Tockes defrauded another set of victims using a
similar scheme, reflecting a need to protect society from
further crimes by Tockes. The district judge acknowl-
edged the letters from family and friends attesting to
Tockes’ character, and noted his lack of criminal history.
He commented on the need to deter others from engaging
in this conduct, remarking on the abhorrent nature of
defrauding elderly and demented persons whose trust
Tockes had gained. The court remarked that, although the
government lost more than $140,000 in uncollected taxes,
the Jameses lost nearly half a million dollars, and the
No. 07-3294 11
sentence needed to reflect the magnitude of that loss. In
short, the court provided more than adequate support
for Tockes’ above-guidelines sentence. See United States
v. Dean, 414 F.3d 725, 729 (7th Cir. 2005) (judges need
not expressly address on the record all of the section
3553(a) factors; it is enough to calculate the range accu-
rately, and if the sentence lies outside it, to explain why
this defendant deserves more or less); Vitrano, 495 F.3d
at 391 (all that is needed to sustain an above-guidelines
sentence is an adequate statement of the judge’s reasons,
consistent with section 3553(a), for thinking that the
sentence selected is indeed appropriate for the par-
ticular defendant). Because we cannot find that such a
sentence was unreasonable, the judgment is
AFFIRMED.
USCA-02-C-0072—6-27-08