US v. Duane Hamelink, No. 11-4893 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4893 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DUANE HAMELINK, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:10-cr-00042-RJC-1) Submitted: May 24, 2012 Decided: June 8, 2012 Before WILKINSON, WYNN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Dianne Jones McVay, JONES MCVAY LAW FIRM, PLLC, Charlotte, North Carolina, for Appellant. Jenny Grus Sugar, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Duane Hamelink pled guilty, pursuant to a written plea agreement, States, to in one count violation of of conspiracy 18 U.S.C. to defraud § 371 sentenced to 27 months imprisonment. the (2006), United and was On appeal, Hamelink s attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which she asserts that she has found no meritorious issues, but questions the constitutionality of the sentencing enhancement Hamelink received for the amount of tax loss. Although advised of his right to supplemental brief, Hamelink has not done so. file a pro se For the reasons that follow, we affirm. Hamelink, and his wife Eileen, owned and operated a residential carpentry business in Charlotte, North Carolina. At his guilty plea hearing, Hamelink admitted that, despite earning substantial income from income tax returns. his business, he failed to file any Hamelink also admitted that he had taken a variety of steps to conceal his income and assets from the IRS, including the use of bogus trusts, nominee entities, and related domestic and foreign Hamelink stipulated bank that accounts. the In plea agreement, of amount the tax loss known, or reasonably foreseeable, to him was more than $1 million but less than $2.5 22. See million, U.S. and Sentencing that the base Guidelines 2 offense Manual level (USSG) § was 2T4.1 (2010). After a two-level enhancement for use of sophisticated means, USSG acceptance § 2T1.1(b)(2), of responsibility, offense level was 21. Hamelink s a three-level USSG § 3E1.1, reduction Hamelink s for total With a criminal history category of I, advisory imprisonment. and Guidelines range was 37-46 months However, the district court granted a three-level downward departure, resulting in a total offense level of 18, with a corresponding imprisonment. range. guidelines range of 27-33 months The court imposed a sentence at the bottom of the Hamelink timely appealed. Counsel questions whether USSG § 2T4.1 is unconstitutional because it allows inclusion of penalties and interest assessed by the IRS in calculating attributed for sentencing purposes. that: amount of loss Counsel concedes, however, (1) Hamelink stipulated to the amount of loss in the plea agreement; and (2) there is no case law supporting her argument. This court under reasonableness standard. In a this correctly sentence. Hamelink s deferential sentence for abuse-of-discretion Gall v. United States, 552 U.S. 38, 41, 51 (2007). conducting court reviews review, we must calculated Id. at 49, 51. application of the conclusions de novo the that the defendant s district Guidelines When reviewing the district court s Guidelines, and ensure factual 3 this court findings, reviews such as legal loss calculations, for clear United error. States v. Sosa- Carabantes, 561 F.3d 256, 259 (4th Cir. 2009); see also United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007) ( In reviewing [a] loss calculation, we review de novo the district court s interpretation of what constitutes loss, while accepting the calculation of loss absent clear error. ). Government need only establish preponderance of the evidence. 277, 282 (4th Cir. 2010). the tax loss amount The by a United States v. Mehta, 594 F.3d Here, Hamelink stipulated to the amount of tax loss and is therefore bound by that admission. In any event, inclusion of penalties and interest in calculating tax loss was not erroneous. Tax loss, within the meaning of USSG § 2T2.1 is the amount of taxes that the taxpayer failed to pay or attempted not to pay. USSG § 2T2.1(a). Section 2T4.1(c) provides that: tax loss does not include penalties and interest except in cases of 7203. was the willful evasion under either 26 U.S.C. §§ 7201 or Hamelink clearly willfully evaded income taxes, as that primary goal of the conspiracy. Accordingly, amounts were properly counted in amount of tax loss. these Moreover, it is well established that the additions to tax for penalties and interest are civil, not criminal, in nature, and therefore do not implicate double jeopardy. 303 U.S. 391 (1938). 4 See Helvering v. Mitchell, In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Hamelink s conviction and sentence. This court requires that counsel inform Hamelink, in writing, of the right to petition the Supreme Court of the United States for further review. If Hamelink requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Hamelink. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5
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