United States v. Hammerschmidt, No. 16-4420 (8th Cir. 2018)
Annotate this CaseMark and Ornella Hammerschmidt were convicted of charges related to their involvement in two schemes to obtain fraudulent tax refunds from the Treasury through the IRS. Mark was sentenced to 135 months in prison and Ornella was sentenced to 48 months in prison. The Eighth Circuit vacated defendant's sentence, holding that the district court did not make the findings required to increase Mark's offense level for being a manager or supervisor and it should not have assessed criminal history points for a 2008 purged disposition of civil contempt. The court affirmed Ornella's sentence, holding that the district court did not err in applying an enhancement for being in the business of preparing or assisting in the preparation of tax returns. Furthermore, the district court did not err in relying on victim impact statements and Ornella's criminal history.
Court Description: Wollman, Author, with Shepherd, Circuit Judge, and Goldberg, Judge of the United States Court of International Trade] Criminal case - Sentencing. The district court did not determine whether defendant Mark Hammerschmidt managed or supervised another participant in the conspiracy to commit file false tax returns on behalf of Guatemalan citizens, and the matter must be remanded to give the court an opportunity to clarify whether defendant did organize or lead at least one other participant under Guidelines Sec. 3B1.1; the defendant's Florida contempt disposition did not meet the definition of a prior sentence because he purged the contempt by paying past-due support payments and was never adjudicated guilty; as a result, the district court erred in assessing two criminal history points for the adjudication. With respect to defendant Ornella Hammerschmidt,the district court did not err in applying an enhancement under Guidelines Sec. 2T1.4(b)(1)(B) for being in the business of preparing or assisting in the preparation of tax returns; nor did the court err in relying on victim impact as a reason to vary above the Guidelines range after it found defendant's conduct had a serious impact on her victims; nor did the court err in relying on defendant's criminal history as a reason for an upward variance; the court would not address an issue raised for the first time in the reply brief.
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