United States v. Gregory Alcala

United States Court of Appeals
For the Eighth Circuit
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No. 16-2852
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Gregory Scott Alcala
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: September 18, 2017
Filed: September 28, 2017
[Unpublished]
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Before LOKEN, BEAM, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Gregory Scott Alcala appeals his thirty-three month sentence for preparing and
presenting false tax returns, wire fraud, and making a bomb threat, arguing that the
district court's1 sentence was excessive and his attorney rendered ineffective
assistance of counsel at sentencing. For the reasons discussed below, we affirm.
I. BACKGROUND
In early 2010, Alcala began independently preparing and filing federal tax
returns for individual clients out of his home office in Davenport, Iowa. A typical
client provided his or her relevant financial information for the tax return, and Alcala
prepared the return for the taxpayer, providing a copy to the client taxpayer. He told
the client that he had filed the return with the Internal Revenue Service (IRS) on the
client's behalf. However, Alcala did not file the version of the tax return that he
provided to the client. Rather, without the client's knowledge or consent, Alcala
altered the tax return to create a larger tax refund than originally shown, filed the
version with the higher refund with the IRS, and directed the excess refund amount
to his personal bank account. All of Alcala's clients paid him with cash or check, and
none of them authorized him to receive a portion of the refund as compensation.
Alcala prepared at least 164 federal tax returns for clients containing fraudulent
information between 2009 and 2014.
Also, on December 23, 2013, Badger Mutual Insurance Company, Alcala's
home and automobile insurer, notified Alcala that it was cancelling his policies. On
December 26, 2013, Alcala called Badger Mutual and stated that he was going to
send a bomb to them by the end of the year. Law enforcement executed a search
warrant at Alcala's residence in May 2014 and found a laptop, two thumb drives, a
desktop computer, various tax return and financial documents, and almost $2,000 in
cash. Alcala was arrested on June 16, 2015, for preparing and presenting false tax
returns, wire fraud, and making a bomb threat.
1
The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
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A grand jury charged Alcala with eight counts of preparing and presenting a
false tax return, in violation of 26 U.S.C. § 7206(2); one count of wire fraud, in
violation of 18 U.S.C. § 1343; one count of aggravated identity theft, in violation of
18 U.S.C. § 1028A(a)(1); and one count of making a bomb threat, in violation of 18
U.S.C. § 844(e). On February 24, 2016, Alcala pleaded guilty to one count of
preparing and presenting a false tax return and the wire fraud and making a bomb
threat counts. The parties agreed to "jointly recommend[] that the sentencing judge
impose a sentence of at least twenty-seven (27) months' imprisonment." Alcala
agreed to pay restitution in the amount of $115,062.53 to the victim taxpayers and the
United States Treasury. In exchange, the government agreed to dismiss the remaining
counts. At the plea hearing, Alcala speculated that there may be some victims, like
close family members, who might not want restitution. Alcala also objected to the
restitution amount in his objections to the presentence report (PSR) and in his
sentencing memorandum. However, Alcala provided no further information in
support of this argument and ultimately agreed to the restitution amount.
At sentencing, the government proposed minor adjustments to the restitution
award, increasing the amount of restitution from $115,062.53 to $115, 841.84. Alcala
agreed to the new restitution amount, and the district court ordered restitution payable
to the United States Treasury and the aggrieved taxpayers. Neither party objected to
the PSR or the advisory Guidelines range. With an offense level of sixteen and a
criminal history category III, Alcala's Guidelines range was twenty-seven to thirty-
three months' imprisonment. Alcala's attorney asked for a sentence of twenty-seven
months, the lowest he could advocate for under the plea agreement, but further noted
that "the Court [could] on its own volition sentence him to less." Alcala also
personally apologized to the court for his behavior. The government requested that
Alcala be sentenced to thirty-three months' imprisonment, noting that Alcala's crime
involved an "extreme . . . breach of trust" that "impacted approximately 80
individuals and at least 164 federal tax returns."
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The court "considered all of the factors under Section 3553(a)," including
Alcala's "very serious mental health issues." Ultimately, because of the seriousness
of the offense, the fact that the criminal behavior spanned several years, and the need
to protect the public, the district court "concluded that a sentence at the top of the
range [was] fully justified." Alcala was sentenced to thirty-three months'
imprisonment to be followed by three years of supervised release. Alcala now
appeals, arguing that (1) the district court erred by imposing an excessive sentence;
and (2) he received ineffective assistance of counsel at sentencing because his
attorney failed to offer mitigating evidence or challenge the amount of restitution.
II. DISCUSSION
A. Thirty-Three Month Sentence
We review the "'substantive reasonableness of the sentence' under the abuse-of-
discretion standard considering the totality of the circumstances." United States v.
Alvizo-Trujillo, 521 F.3d 1015, 1017 (8th Cir. 2008) (quoting Gall v. United States,
552 U.S. 38, 51 (2007)). Alcala does not claim that the district court committed any
procedural error, only that the district court erred in imposing a thirty-three month
sentence where a twenty-seven month sentence would have been reasonable.
However, the thirty-three month sentence was within the Guidelines range and thus
presumptively reasonable. United States v. Mabie, 663 F.3d 322, 335 (8th Cir. 2011)
("A sentence within a properly calculated Guidelines range is presumptively
reasonable on appeal."). As such, Alcala has the burden of proving that the sentence
is unreasonable. See United States v. Peck, 496 F.3d 885, 891 (8th Cir. 2007).
Here, there is no evidence supporting Alcala's contention that the within-the-
Guidelines sentence was unreasonable. Alcala argues that there were enough
mitigating factors under § 3553(a) to suggest that twenty-seven months was a
reasonable sentence. However, the existence of these mitigating factors does not
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automatically make the thirty-three month sentence unreasonable. The district court
reviewed the PSR, appropriately weighed all of the § 3553(a) factors, acknowledged
the mitigating factors, and decided that the seriousness of the crime in conjunction
with all of the other factors warranted a sentence at the high end of the Guidelines
range. Thus, there was no abuse of discretion. "[I]t will be the unusual case when we
reverse a district court sentence–whether within, above, or below the applicable
Guidelines range–as substantively unreasonable," United States v. Feemster, 572 F.3d
455, 464 (8th Cir. 2009) (en banc) (quoting United States v. Gardellini, 545 F.3d
1089, 1090 (D.C. Cir. 2008)), and this is not such a case.
B. Ineffective Assistance of Counsel
Alcala also argues that his trial counsel was ineffective because he failed to
present mitigating evidence at the time of sentencing and failed to provide evidence
to offset the government's calculation for restitution. "[W]e review claims of
ineffective assistance of counsel on direct appeal only in 'exceptional cases.'" United
States v. Sanchez-Gonzalez, 643 F.3d 626, 628 (8th Cir. 2011) (quoting United States
v. Hernandez, 281 F.3d 746, 749 (8th Cir. 2002)). In the normal course, we "defer
such claims to collateral review under 28 U.S.C. § 2255" unless there would be "a
plain miscarriage of justice." United States v. Cooke, 853 F.3d 464, 474 (8th Cir.
2017). Moreover, the record must be fully developed. United States v. Ramirez-
Hernandez, 449 F.3d 824, 827 (8th Cir. 2006); see also Massaro v. United States, 538
U.S. 500, 506 (2003) ("Even meritorious claims would fail when brought on direct
appeal if the trial record were inadequate to support them.").
Evaluating Alcala's ineffective assistance of counsel claim necessitates further
development of the factual record. Alcala's trial attorney has not yet been examined
under oath. As such, there is no evidence of tactical discussions between Alcala and
his attorney regarding potential sentencing arguments or restitution. And, the errors
alleged by Alcala are not readily apparent from the record. There are simply too
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many unanswered questions for this court to make a determination on Alcala's
ineffective assistance of counsel claim. Moreover, no "plain miscarriage of justice"
would result if this claim is not heard on direct appeal. Alcala may still pursue the
ineffective assistance of counsel claim through a § 2255 action. See Sanchez-
Gonzalez, 643 F.3d at 629.
III. CONCLUSION
The judgment of the district court is affirmed.
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