Unpublished Disposition, 937 F.2d 614 (9th Cir. 1991)

MEMORANDUM^** 

Shelvin E. Byars appeals his sentence following a guilty plea to four counts of assisting the preparation of false income tax returns, in violation of 26 U.S.C. § 7206(2). Byars contends the district court violated the Eighth Amendment because it failed to give him an individually tailored sentence when it imposed the maximum consecutive sentences for the offenses of conviction and because the punishment is disproportionately severe when compared to the punishment received by others convicted of similar crimes. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

* Individual Sentencing

Byars argues the district court imposed its sentence based on the type of crime involved and the district court's desire to make an example of him rather than on the specific circumstances surrounding his involvement in the offenses of conviction.

Under pre-United States Sentencing Guidelines law, " [s]entencing is left to the sound discretion of the trial judge and his decision is reviewed only for an abuse of discretion." United States v. Yarbrough, 852 F.2d 1522, 1545 (9th Cir.) (citation omitted), cert. denied, 488 U.S. 866 (1988). "In determining whether a decision-maker abused his discretion, the reviewing 'court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.' " United States v. Ruffen, 780 F.2d 1493, 1495 (9th Cir.) (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)), cert. denied 479 U.S. 963 (1986). The sentencing judge must actually exercise his discretion when determining the sentence to be imposed on a defendant. United States v. Terrovona, 785 F.2d 767, 770 (9th Cir.), cert. denied, 476 U.S. 1186 (1986); see also United States v. Barker, 771 F.2d 1362, 1364-65 (9th Cir. 1985) (" [w]hether the failure to individualize sentences is described as an abuse or an abdication of discretion, however, it is the failure itself which warrants defendants' resentencing").

Here, Byars pleaded guilty to four counts of an indictment charging him with twenty-five counts of preparation of false income tax returns. The district court read and considered numerous documents proffered by the defense in support of leniency at sentencing.¹  In imposing the maximum sentence allowable under the statute, the district court specifically stated that it found Byars' conduct to be particularly egregious and deserving of severe punishment.² 

The record establishes that the district court considered the specific circumstances of Byars' case when sentencing him and did not impose a severe sentence merely to make an example of him or because of the type of crime that he committed. Therefore, the district court did not abuse its discretion in imposing the maximum consecutive sentence available when sentencing Byars. See Barker, 771 F.2d at 1369.

II

Disproportionality

Byars contends the sentence imposed upon him is disproportionately high compared to those imposed on other defendants convicted of the same or similar offenses in other jurisdictions.

Congress has broad discretion to set the punishment for a crime, and a sentence within statutory limits cannot be overturned as a violation of the Eight Amendment unless it is totally out of proportion to the severity of the crime. United States v. Klein, 860 F.2d 1489, 1495 (9th Cir. 1988); United States v. Savinovich, 845 F.2d 834, 839-40 (9th Cir.), cert. denied, 488 U.S. 943 (1988). In Solem v. Helm, 463 U.S. 277 (1983), the Supreme Court set out factors to guide a proportionality analysis. These factors include: "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." Id., 463 U.S. at 292. The Court noted, however, that " ' [o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences [will be] exceedingly rare.' " Id., 463 U.S. at 289-90 (emphasis in original) (quoting Rummel v. Estelle, 445 U.S. 263, 272 (1980)). Therefore, " [r]eviewing courts ... should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals." Id., 463 U.S. at 290. Keeping those directives in mind, we have held that a non-capital sentence "may be overturned only if it is 'grossly disproportionate to the offense committed.' " United States v. Kidder, 869 F.2d 1328, 1333 (9th Cir. 1989) (emphasis in original) (quoting United States v. Busher, 817 F.2d 1409, 1415 (9th Cir. 1987)). Finally, sentences permitted by statute are not cruel and unusual punishment merely because they are imposed consecutively rather than concurrently. Gebhard v. United States, 422 F.2d 281 (9th Cir. 1970); see also United States v. Yarbrough, 852 F.2d 1522, 1545 (9th Cir. 1988).

Here, Byars was responsible for a massive tax fraud scheme which sought to defraud the United States government of millions of tax dollars and harmed hundreds of innocent people who trusted him to prepare their taxes. Thus, while Byars' sentence might have been more severe than that imposed on others convicted of similar crimes, the severity of the sentence imposed was within that authorized by the legislature and was justified by the nature and scale of the fraud involved. Accordingly, we reject Byars' disproportionality claim. See Klein, 860 F.2d at 1501; Gebhard, 422 F.2d at 284.

AFFIRMED.