United States v. Glenn Lockwood , 390 F. App'x 758 ( 2010 )

FILED
NOT FOR PUBLICATION AUG 03 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30121
Plaintiff - Appellee, D.C. No. 3:07-cr-00115-JWS-1
v.
MEMORANDUM *
GLENN E. LOCKWOOD,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Argued and Submitted July 26, 2010
Anchorage, Alaska
Before: SCHROEDER, O’SCANNLAIN and CLIFTON, Circuit Judges.
Glenn Lockwood was convicted of four counts of tax evasion in violation of
26 U.S.C. § 7201. The district court judge sentenced Lockwood to sixty months of
imprisonment and three years of supervised release. Lockwood timely appeals his
conviction and his sentence.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
I
Lockwood argues that there was insufficient evidence to support his
convictions for tax evasion because, in his view, the government did not prove a
tax due and owing, which is an element of tax evasion under 26 U.S.C. § 7201, for
any of the years with respect to which he was convicted. To establish a tax due
and owing in this case, the government had to prove that Lockwood’s corporation
had earnings and profits. See Boulware v. United States, 552 U.S. 421, 424-25
(2008). Here, there was sufficient evidence from which a rational trier of fact
could conclude the existence of earnings and profits in each year with respect to
which Lockwood was convicted of tax evasion because the government’s expert
witness testified to her computations of the taxable income of Lockwood’s
corporation and to her related conclusion that the corporation had earnings and
profits for each of the relevant years. See Jackson v. Virginia, 443 U.S. 307, 319
(1979).
II
Lockwood also argues that the district court improperly calculated the tax
loss underlying his sentence. He first asserts that there was no tax loss. But the
district court did not clearly err in crediting the testimony of the government’s
expert, who testified that there was tax loss, as opposed to the defendant’s expert,
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who testified to the contrary view. See United States v. Delgado, 357 F.3d 1061,
1068 (9th Cir. 2004).
III
Lockwood next asserts that the corporation’s unfulfilled tax obligations from
2003 to 2007 were not “relevant conduct” for sentencing, and thus should not have
been included in the tax loss, because a corporation is distinct from its owners and
because the charged conduct occurred before 2003 to 2007. Inclusion of the
corporation’s tax obligations was proper, however, because Lockwood “willfully
caused” the corporation’s deficiency as part of his attempt to avoid detection and
as part of his “common scheme” of diverting corporate income for personal use.
See U.S.S.G. § 1B1.3(a)(1)-(2). As the sole shareholder and CEO of the
corporation, Lockwood was responsible for its tax obligations. Lockwood also
argues that, even if the corporation’s tax obligations should have been included,
they should not have been calculated based on gross deposits. But a more accurate
determination could not have been made in light of Lockwood’s refusal to provide
financial information about the corporation to the court. See U.S.S.G. §
2T1.1(c)(2)(A).
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IV
Finally, Lockwood asserts that he should have been allowed to reduce tax
loss by claiming deductions for the years in which he did not file tax returns. This
argument is foreclosed by United States v. Yip, 592 F.3d 1035, 1040-41 (9th Cir.
2010).
V
For these reasons, the judgment of the district court is AFFIRMED.
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