U.S. v. Bryant, 336

• Citation: 128 F.3d 74
• Decision Date: 14 October 1997
• Docket Number: No. 336,D,336
• Parties: -8434 UNITED STATES of America, Appellee, v. Anthony BRYANT, Defendant-Appellant. ocket 96-1741.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 74

128 F.3d 74

80 A.F.T.R.2d 97-8434

UNITED STATES of America, Appellee, v. Anthony BRYANT, Defendant-Appellant.

No. 336, Docket 96-1741.

United States Court of Appeals, Second Circuit.

Oct. 14, 1997.

George S. Canellos, Assistant United States Attorney, New York City (Mary Jo White, United States Attorney for the Southern District of New York, David Raymond Lewis, Assistant United States Attorney, New York City, on the brief), for Appellee.

James C. Neville, New York City, for Defendant-Appellant; Anthony Bryant pro se, Montgomery, Pennsylvania, filed a brief.

Before: KEARSE, MINER, and CABRANES, Circuit Judges.

PER CURIAM:

Defendant Anthony Bryant appeals from a judgment entered in the United States District Court for the Southern District of New York following a jury trial before John F. Keenan, Judge, convicting him on 22 counts of assisting in the preparation of false federal income tax returns, in violation of 26 U.S.C. § 7206(2) (1994), and sentencing him principally to 60 months' imprisonment, to be followed by a one-year term of supervised release. In computing Bryant's sentence under the Sentencing Guidelines ("Guidelines"), the district court set his base offense level at 22 pursuant to §§ 2T1.4(a)(1) and 2T4.1 on the ground that the loss caused by his frauds totaled "at least" $5,115,203. That figure was the sum of (a) $53,570 in tax losses attributable to the 22 returns that Bryant was convicted of falsifying, (b) $4,461,633 in losses suffered by the government on other tax returns prepared by Bryant that had been audited by the Internal Revenue Service ("IRS"), and (c) "at least" $600,000 in losses that the presentence report ("PSR") estimated the government to have suffered on returns prepared by Bryant that were not audited. On appeal, Bryant contends that the attribution to him of $600,000 in losses with respect to unaudited returns was speculative and unfair. In his pro se brief, Bryant also contends that he was unfairly denied access to the tax documents from which the $4,461,633 loss was calculated. Finding no merit in any of these contentions, we affirm.

In establishing sentencing tables that tie a defendant's offense level to the amount of loss caused by his offense, see, e.g., Guidelines § 2T4.1 (loss caused by tax offenses); id. § 2B1.1(b)(1) (loss caused by theft offenses); id. § 2F1.1(b)(1) (loss caused by fraud offenses), the Guidelines do not require that the sentencing court calculate the amount of loss with certainty or precision. The § 2T1.1 commentary, which is applicable to a violation of § 7206(2), states that "the amount of the tax loss may be uncertain," and it envisions that "indirect methods of proof [may be] used...." Guidelines § 2T1.1 Application Note 1. It states expressly that "the guidelines contemplate that the court will simply make a reasonable estimate based on the available facts." Id.

Similarly, the commentaries to § 2B1.1 and § 2F1.1 state that, for purposes of calculating the offense level for theft and fraud offenses, respectively, "the loss need not be determined with precision. The court need only make a reasonable estimate of the loss, given the available information." Guidelines § 2B1.1 Application Note 3; id. § 2F1.1 Application Note 8. A § 2F1.1 "estimate, for example, may be based upon the approximate number of victims and an estimate of the average loss to each victim...." Id. In keeping with this philosophy, it is permissible for the sentencing court, in calculating a defendant's offense level, to estimate the loss resulting from his offenses by extrapolating the average amount of loss from known data and applying that average to transactions where the exact amount of loss is unknown. Thus, in United States v. Sutton, 13 F.3d 595, 596-97 (2d Cir.1994) (per curiam), where the defendant had received payments of $80-$1,500, usually in the $750-$1,200 range, for...