United States v. Albert Bront , 480 F. App'x 450 ( 2012 )

FILED
NOT FOR PUBLICATION MAY 10 2012
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. 11-50225
Plaintiff - Appellee, D.C. No. 2:09-cr-00717-ODW-1
v.
MEMORANDUM *
ALBERT BRONT,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Submitted May 7, 2012 **
Pasadena, California
Before: PREGERSON, GRABER, and BERZON, Circuit Judges.
Defendant Albert Bront appeals his 36-month sentence for one count of
subscribing to a false tax return, in violation of 26 U.S.C. § 7206(1), and two
counts of assisting or advising a false tax return, in violation of 26 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
§ 7206(2). Reviewing "the district court’s interpretation of the Sentencing
Guidelines de novo, the district court’s application of the Sentencing Guidelines to
the facts of this case for abuse of discretion, and the district court’s factual findings
for clear error," United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005),
we affirm.
1. Defendant first argues that the district court erroneously calculated the
amount of tax loss for sentencing purposes. Because the amount of tax loss is a
factual finding, we review this issue for clear error. United States v. Garro, 517
F.3d 1163, 1167 (9th Cir. 2008).
No impermissible double counting occurred. The government incurred two
distinct tax losses as a result of Defendant’s acts. First, Defendant filed a
fraudulent 2004 tax return for Y.Z., resulting in a $10,966 refund. Defendant
admits that the filing of that return resulted in a tax loss to the government of
approximately $10,247. Second, Defendant stole the refund intended for Y.Z. by
diverting a $10,644 refund anticipation loan into his own bank account. He kept
the $10,644, but he failed to report it as income on his tax return for 2005.
Because Defendant under-reported his 2005 income by $10,644, that act resulted in
a second, distinct, tax loss to the government. Thus, although the two losses are
related, they are not the same.
2
With respect to R.B., Defendant fails to appreciate that the government did
indeed reduce R.B.’s tax liability by adjusting her taxable income to reflect the
amount of alimony actually received. Thus, in calculating the loss from
Defendant’s fraudulent preparation of R.B.’s 2005 tax return, the government
reduced R.B.’s taxable income by $9,500 to reflect that, in fact, she received only
$2,500 in alimony, not the $12,000 claimed on the return filed by Defendant. The
government similarly adjusted R.B.’s taxable income for tax years 2004, 2006, and
2007. Defendant’s argument therefore lacks any factual basis in the record.
2. Defendant next claims that he should not have been subject to a two-level
enhancement, under U.S.S.G. § 2T1.1(b)(1), for failing to report the source of
income exceeding $10,000 from criminal activity. "‘Criminal activity’ means any
conduct constituting a criminal offense under federal, state, local, or foreign law."
U.S.S.G. § 2T1.1 cmt. n.3. Here, Defendant does not deny that he failed to report
$10,644 of income when he took Y.Z.’s refund, conduct that qualifies as criminal
under 26 U.S.C. § 7206(2). Cf. United States v. Ford, 989 F.2d 347, 350 (9th Cir.
1993) (noting that enhancement under § 2T1.1(b)(1) is improper where the
underlying criminal activity results only in "previously generated income being
unlawfully withheld from the taxing authority" and "do[es] not actually generate
any income").
3
Furthermore, subjecting Defendant to an enhancement under § 2T1.1(b)(1)
does not impermissibly double count his failure to report the $10,644 of income on
his 2005 tax return. There is "nothing wrong with double counting when it is
necessary to make the defendant’s sentence reflect the full extent of the
wrongfulness of his conduct." United States v. Cabaccang, 481 F.3d 1176, 1186
(9th Cir. 2007) (internal quotation marks omitted). The fact that Defendant’s
unreported income was derived from criminal activity was not "fully accounted
for" by the application of any other part of the Guidelines, including U.S.S.G.
§ 2T1.1(a)(1). Id. Accordingly, the district court did not abuse its discretion by
applying a two-level sentencing enhancement under U.S.S.G. § 2T1.1(b)(1).
3. In addition, Defendant argues that the district court improperly imposed a
two-level enhancement under U.S.S.G. § 3B1.3, which applies "[i]f the defendant
abused a position of public or private trust, or used a special skill, in a manner that
significantly facilitated the commission or concealment of the offense."
Defendant’s opening brief asserts only that he did not abuse a position of trust, but
the district court did not impose the enhancement on that ground. Instead, it
imposed the enhancement because it found that Defendant’s special skill as an IRS
agent facilitated the commission of his offenses. Because the opening brief fails to
contest the ground for imposing the enhancement, the propriety of the
4
enhancement is waived. See United States v. Kama, 394 F.3d 1236, 1238 (9th Cir.
2005) ("Generally, an issue is waived when the appellant does not specifically and
distinctly argue the issue in his or her opening brief.").
4. Finally, Defendant concedes that the district court properly applied the
obstruction of justice enhancement, because Defendant submitted false documents
in an attempt to obstruct his audit by the IRS. See United States v. Yip, 592 F.3d
1035, 1042 (9th Cir. 2010) ("Obstruction during an IRS audit justifies enhancing a
defendant's sentence for obstruction ‘during the course of the investigation.’
U.S.S.G. § 3C1.1 (2001).").
AFFIRMED.
5