DocketNumber： 93-2335
Filed Date： 2/14/1994
Status： Precedential
Modified Date： 9/21/2015
February 14, 1994 [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2335
UNITED STATES OF AMERICA,
Appellee,
v.
LEO A. McHATTON,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel B. Gorton, U. S. District Judge]
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Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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John C. McBride and McBride & Associates on brief for
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appellant.
Donald K. Stern, United States Attorney, and Joseph F.
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Savage, Jr., Assistant United States Attorney, on brief for
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appellee.
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Per Curiam. Defendant-appellant Leo A. McHatton stands
Per Curiam.
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convicted on six counts charging him with violating 26 U.S.C.
7206(1) by filing false federal income tax returns for the
calendar years 1986 through 1991.1 The district court made a
disputed guidelines calculation as to the amount(s) of tax evaded
and sentenced appellant to one year in prison on each count;
fined him $10,000; imposed a one-year term of supervised release;
and levied a $50 special felony assessment on each count, see 18
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U.S.C. 3013 (1988). McHatton appeals from the judgment. We
affirm.
In our view, the concurrent sentence doctrine obviates
any need to resolve the dispute about the guideline calculation
in this appeal and requires that we affirm the judgment below.
Under the concurrent sentence doctrine, the existence of one
valid conviction "make[s] unnecessary the review of other
convictions when concurrent sentences have been given, provided
there is no adverse collateral consequence to not reviewing the
concurrent sentence." United States v. Hudacek, 7 F.3d 203, 204
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n.1 (11th Cir. 1993); see also Benton v. Maryland, 395 U.S. 784,
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788-89 (1969); Hirabayashi v. United States, 320 U.S. 81, 105
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(1943); United States v. Nightingale, 703 F.2d 17, 19 (1st Cir.
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1983); United States v. Tashjian, 660 F.2d 829, 840 (1st Cir.),
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cert. denied, 454 U.S. 1102 (1981). Here, all the conditions
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1McHatton went to trial on a twelve-count indictment. He
was acquitted on the non-tax counts. The counts of conviction
are counts 7 (1986), 8 (1987), 9 (1988), 10 (1989), 11 (1990),
and 12 (1991).
2
necessary to animate the doctrine are present. The district
court made the prison sentence and fine concurrent on all counts
and appellant has not argued that the sentence on count 7 (a
non-guidelines count) can be overturned on appeal.2 That ends
the matter, for no adverse collateral consequence looms on the
horizon.
To be sure, the term of supervised release is geared
only to certain appealed counts, viz., counts 8-12. But
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defendant does not argue against his conviction on those counts;
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he argues instead that he is entitled to a milder sentence.
Thus, even if appellant's point is well-taken and we do not
think that it is, see infra the term of supervised release will
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not be abated. See U.S.S.G. 5D1.1(b); U.S.S.G. 5D1.1 comment.
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(n.2) ("[T]he court may impose a term of supervised release in
cases involving imprisonment for a term of one year or less.")
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(emphasis supplied). By like token, the six $50 per count
special felony assessments do not require that we allow this
appeal to go forward. Under the controlling statute, 18 U.S.C.
3013(a)(2)(A), it is the fact of a defendant's felony conviction,
not the fact of incarceration or the length of sentence, that
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2Since count 7 covered a year (1986) that antedated the
effective date of the sentencing guidelines, we cannot visualize
any basis for an appeal of the sentence imposed on that count.
See United States v. Tucker, 404 U.S. 443, 447 (1972) (explaining
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that, prior to the advent of the guidelines, "a sentence imposed
by a federal district judge, if within statutory limits, is
generally not subject to review"); United States v. Ruiz-Garcia,
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886 F.2d 474, 477 (1st Cir. 1989) (explaining that, in the pre-
guidelines era, sentencing appeals were infrequent and "[w]hen
appeals were taken, success was hen's-teeth rare").
3
dictates imposition of the assessment. See generally United
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States v. Luongo, 11 F.3d 7 (1st Cir. 1993). Hence, a change in
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the duration of appellant's sentence will not affect either the
number or aggregate amount of the special assessments.
Although the concurrent sentence doctrine is completely
dispositive of this appeal, we add that, in all events, the
evidence in the record supports the district court's
approximation of the amount(s) of unreported income and
underpayments of tax, and, therefore, the amount of loss. After
all, a sentencing court's calculations in these respects need not
be infinitely precise. See, e.g., United States v. Tardiff, 969
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F.2d 1283, 1288 (1st Cir. 1992); United States v. Bachynsky, 949
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F.2d 722, 731-33 (5th Cir. 1991), cert. denied, 113 S. Ct. 150
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(1992). The facts underlying a guideline calculation of this
genre "may be inferred from any reasonably reliable information
available, including the scope of the operation." U.S.S.G.
2B1.1, comment. (n.3); see also United States v. Skrodzki, 9
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F.3d 198, 203 (1st Cir. 1993) & cases cited therein. And,
moreover, the guidelines explicitly recognize that in some tax
cases, "the amount of the tax loss may be uncertain," with the
result that the court must then "simply make a reasonable
estimate based on the available facts". U.S.S.G. 2T1.1,
comment. (n.2). Once the trial court has performed this task, a
dissatisfied party, on appeal, "must carry the heavy burden of
persuading the court of appeals that the lower court's conclusion
is clearly erroneous." Tardiff, 969 F.2d at 1288.
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4
Appellant has not satisfied the devoir of persuasion
here. Rather, our review of the record persuades us that the key
calculation the district court's approximation of appellant's
unreported income for the years 1974-1985 is within "the
universe of acceptable computations." Id. The evidence showed
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that appellant earned some income as an electrician during that
period; it also showed that he failed to report such income.
Under those circumstances, the court supportably could
extrapolate from the stipulated facts concerning later years to
arrive at an estimate for the earlier years. Cf., e.g., United
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States v. Sklar, 920 F.2d 107, 111-14 (1st Cir. 1990).
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Affirmed. See 1st Cir. R. 27.1.
Affirmed. See 1st Cir. R. 27.1.
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5
Benton v. Maryland , 89 S. Ct. 2056 ( 1969 )
United States v. Tucker , 92 S. Ct. 589 ( 1972 )
United States v. Luongo , 11 F.3d 7 ( 1993 )
United States v. Alfred Ruiz-Garcia, A/K/A Wilfredo Cintron ... , 886 F.2d 474 ( 1989 )
United States v. George Nightingale, Victor J. Spellman and ... , 703 F.2d 17 ( 1983 )
United States v. Nicholas Bachynsky , 949 F.2d 722 ( 1991 )
United States v. Claude Paul Tardiff , 969 F.2d 1283 ( 1992 )
United States v. Charles Tashjian, United States of America ... , 660 F.2d 829 ( 1981 )
United States v. Skrodzki , 9 F.3d 198 ( 1993 )
United States v. Michael Joseph Hudacek , 7 F.3d 203 ( 1993 )
United States v. David Sklar, United States of America v. ... , 920 F.2d 107 ( 1990 )