United States v. Thomsen, No. 13-50235 (9th Cir. 2016)
Annotate this CaseDefendant, then a 67-year-old retired engineer turned tax preparer, was convicted of 32 federal offenses arising from a tax fraud scheme. Defendant was sentenced to fifteen years in prison and ordered to pay just over $500,000 in restitution. The court held that 18 U.S.C. 1546(a) does not apply to U.S. passports or U.S. passport cards. Thus, the district court erred by denying defendant’s motion for judgment of acquittal as to Counts 33 and 34. The court concluded that the district court clearly erred in holding that the conduct at issue in the second case, where defendant was not convicted, was sufficiently “related” to the conduct at issue in the first case to warrant inclusion of losses in the second case in the order for restitution pursuant to 18 U.S.C. 3663A(a)(2). Consequently, the court concluded that although ordering restitution for related conduct that did not result in a conviction was within “statutory bounds,” the order for restitution, here, was an abuse of discretion. The United States concedes, and the court agreed, that the wrong version of USSG 2B1.1(b)(2)(C) was used and that this error requires remand to resolve the determination of the number of victims; the primary flaw with the “intended loss” finding, here, is that the district court improperly considered the intended loss from the second case, even though the second case did not involve “relevant conduct,” under USSG 1B1.3(a)(2); the United States nowhere identifies evidence establishing - or identified by the district court as the basis for a finding - that specific challenged amounts of intended loss in the first case were, in fact, actual or intended losses; the district court erroneously applied the identity theft specific offense characteristic under USSG 2B1.1(b)(11)(C); the district court properly imposed the “sophisticated means” enhancement under USSG 2B1.1(b)(9)(C); because the court vacated defendant's conviction on Count 33, no cross-reference is applicable and the district court must recalculate the sentence on remand; the district court properly applied the enhancement for “abuse of trust” under USSG 3B1.3; and the district court properly applied an "obstruction of justice" enhancement under USSG 3C1.1. Accordingly, the court affirmed in part, reversed in part and remanded.
Court Description: Criminal Law. The panel affirmed in part, reversed in part, and remanded in a case in which the defendant, a tax preparer, was convicted of 32 federal offenses arising from a tax fraud scheme. The panel held that 18 U.S.C. § 1546(a) (fraud and misuse of visas, permits, and other documents) does not apply to documents that are not immigration-related, such as U.S. passports or U.S. passport cards, and that the district court therefore erred by denying the defendant’s motion for judgment of acquittal as to Count 33, which charged a violation of § 1546(a), and Count 34, which charged aggravated identity theft during and in relation to the felony passport card fraud offense. The panel held that the district court did not err, as a matter of law, in concluding that awarding restitution for related conduct beyond the conduct for which the defendant was specifically convicted was within statutory bounds. But the panel held that the district court clearly erred, on a question of fact, in finding that the conduct at issue in a second case, in which the defendant was not convicted, was sufficiently “related” to the conduct at issue in the first case to warrant inclusion of losses in the order for restitution pursuant to 18 U.S.C. § 3663A(a)(2). UNITED STATES V. THOMSEN 3 The panel held that the district court erred by using the 2011 rather than the 2008 version of U.S.S.G. § 2B1.1(b)(2)(C) to calculate the number of victims at sentencing. The panel held that the primary flaw with the district court’s “intended loss” finding under U.S.S.G. § 2B1.1(b)(1) is that the district court improperly considered the intended loss from the second case, which did not result in the defendant’s conviction, even though that case did not involve “relevant conduct” because it was not “part of the same course of conduct or common scheme or plan as the offense of conviction.” The panel wrote that furthermore the United States nowhere identifies evidence establishing—or identified by the district court as the basis for the finding—that specific challenged amounts of intended loss in the first case were, in fact, actual or intended loss. Noting the absence of any authority holding that tax returns are “means of identification,” the panel held that the district court improperly imposed an enhancement, U.S.S.G. § 2B1.1(b)(10) (2008), for using social security numbers of others to produce personal tax returns. The panel held that the district court properly applied a sophisticated means enhancement, U.S.S.G. § 2B1.1(b)(9)(C) (2008). The panel wrote that because it vacated the conviction on Count 33, U.S.S.G. § 2L2.2(c)(1)(A)’s cross-reference to U.S.S.G. § 2X1.1 is inapplicable. The panel held that the district court did not plainly err in applying an “abuse of trust” enhancement under U.S.S.G. 4 UNITED STATES V. THOMSEN § 3B1.3, where persons in whose name the defendant filed fraudulent tax returns by using personal information provided to him in his employment as a tax preparer were subject to emotional and other burdens as a result of his conduct. The panel held that the district court did not err in applying an enhancement for “obstruction of justice” under U.S.S.G. § 3C1.1.
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