United States v. Al Eugene Morton, Jr.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 3, 2008
No. 07-14803 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00036-CR-2-RDP-JEO
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AL EUGENE MORTON, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(December 3, 2008)
Before ANDERSON, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Al Eugene Morton, Jr., owned and operated Taxx Enterprises, a commercial
tax return preparer that participated in a Refund Anticipated Loan (“RAL”)
program with Bank One. Morton enlisted individuals with valid social security
numbers who had not already filed their tax returns. He created false tax returns on
their behalf. Morton used the false returns to secure RAL checks from Bank One,
which were payable to the taxpayer and from which Taxx Enterprises received a
fee. He also enlisted recruiters, who received a commission for bringing
individuals into the scheme. Morton, the recruiter, and the taxpayer would split the
RAL proceeds check issued to the taxpayer.
Morton was convicted of (1) conspiracy to make and present false claims to
the Internal Revenue Service, 18 U.S.C. §§ 287 and 2, and to commit bank fraud,
18 U.S.C. §§ 1344 and 2, 18 U.S.C. §§ 371 and 2 (Count 1); (2) aiding and
abetting falsely made and presented claims to the IRS, 18 U.S.C. §§ 287 and 2
(Counts 2-9 and 11-16); and (3) aiding and abetting bank fraud, 18 U.S.C. §§ 1344
and 2, (Counts 17-23 and 25-30). He now appeals the sentences1 imposed for
those convictions. After reviewing the record and the parties’ briefs, we affirm.
I.
We first address Morton’s Confrontation Clause argument pursuant to
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
Morton argues that his right to confront his accusers was violated when the district
1
The district court sentenced Morton to 60 months incarceration as to Counts 1-9 and 11-16,
and 72 months as to counts 17-23 and 25-30. The court ordered that the sentences run concurrently.
2
court applied the guidelines enhancements. He claims that the false tax returns
about which the government presented testimony amounted only to $143,943.00 in
loss. Accordingly, he argues that he should have received a ten-level enhancement,
U.S. S ENTENCING G UIDELINES M ANUAL § 2B1.1(b)(1)(F) (2007), not a
fourteen-level enhancement based on an amount of loss in excess of $400,000.00,
§ 2B1.1(b)(1)(H). He argues that the inclusion of additional amounts violated his
right to confront and cross-examine his accusers.
Crawford, however, does not apply to non-capital sentencing proceedings
because “the right to confrontation is not a sentencing right.” United States v.
Cantellano, 430 F.3d 1142, 1146 (11th Cir. 2005) (per curiam). To the extent that
Morton argues that the enhancement of his guidelines offense level based on facts
that were not proven at trial violated the Confrontation Clause, this argument also
fails because the district court applied the guidelines in an advisory manner.
United States v. Dudley, 463 F.3d 1221, 1228 (11th Cir. 2006) (“After Booker,2
district courts may still impose fact-based sentencing enhancements under an
advisory guidelines system without violating the Sixth Amendment.”). Thus,
Morton’s Confrontation Clause claim lacks merit.
II.
2
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
3
Morton raises additional arguments that the district court miscalculated his
base offense level. First, he argues that the district court erroneously applied a
two-level enhancement to his guidelines offense level for use of a specialized skill,
U.S. S ENTENCING G UIDELINES M ANUAL § 3B1.3 (2007), because the program used
to commit the offenses was already in place when Morton joined Taxx Enterprises,
and he had no additional specialized training. Second, he argues that he should not
have received a four-level enhancement for organizing or leading criminal activity
involving five or more participants, § 3B1.1(a), because he exercised control only
over individuals who either were not charged or did not testify at trial.
“This Court reviews a District Court’s interpretation of the Sentencing
Guidelines de novo, and its factual findings for clear error.” United States v.
Vance, 494 F.3d 985, 994 (11th Cir. 2007). Even “[a]fter . . . Booker and Gall,3 the
district courts are still required to correctly calculate the advisory Guidelines
range.” United States v. Livesay, 525 F.3d 1081, 1089 (11th Cir. 2008). “[W]hen
a district court applies the guidelines in an advisory manner, nothing in [Booker]
prohibits the district court from imposing guidelines enhancements based on facts
found by the judge by a preponderance of the evidence.” United States v. Douglas,
489 F.3d 1117, 1129 (11th Cir. 2007) (per curiam) (citations omitted), cert. denied,
3
Gall v. United States, 552 U.S. ___, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007).
4
___ U.S. ___, 128 S. Ct. 1875, 170 L. Ed. 2d 752 (2008).
Moreover, “it is not necessary to decide guidelines issues or remand cases
for new sentence proceedings where the guidelines error, if any, did not affect the
sentence.” United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006) (citation
and quotation marks omitted). Thus, we have affirmed a defendant’s sentence
without addressing the defendant’s argument that the district court miscalculated
the amount of loss for purposes of the § 2B1.1(b) enhancement where the district
court stated that it would have imposed the same sentence regardless of such
calculations. See, e.g., United States v. Tampas, 493 F.3d 1291, 1305 (11th Cir.
2007) (“[W]here the district court would have imposed the same sentence
regardless of the Guidelines’ recommendations on the amount of loss, any error in
its loss calculation is harmless.”).
Here, Morton challenges the district court’s guidelines range calculation.
The district court stated that it would have imposed the same sentences regardless
of how those guidelines issues had been resolved. The court recognized that the
guidelines were advisory, stated that the sentences complied with the § 3553(a)
factors, and sentenced Morton within the applicable statutory range. Accordingly,
any error in the district court’s guidelines calculations was harmless.
AFFIRMED.
5