U.S. v. Carter

• Decision Date: 17 December 2007
• Docket Number: No. 07-5551.,07-5551.
• Citation: 510 F.3d 593
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vernon Tresmont CARTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

510 F.3d 593

UNITED STATES of America, Plaintiff-Appellee, v. Vernon Tresmont CARTER, Defendant-Appellant.

No. 07-5551.

United States Court of Appeals, Sixth Circuit.

Argued: November 29, 2007.

Decided and Filed: December 17, 2007.

ARGUED:

David L. Cooper, The Law Office of David L. Cooper, Nashville, Tennessee, for Appellant. Darryl A. Stewart, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

ON BRIEF:

David L. Cooper, The Law Office of David L. Cooper, Nashville, Tennessee, for Appellant. Darryl A. Stewart, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

Before: ROGERS and SUTTON, Circuit Judges; BERTELSMAN, District Judge.^*

OPINION

ROGERS, Circuit Judge.

Defendant Vernon T. Carter appeals his sentence of 15 months' imprisonment for filing false income tax returns. At the sentencing hearing, the district court denied Carter's motion for a downward departure/variance and enhanced Carter's sentence by two levels for obstruction of justice. Carter raises three arguments on appeal: (1) the district court erred when it denied his motion for a downward departure and/or variance based upon "exceptional family circumstances"; (2) the district court failed to consider adequately a sentence of probation and home detention based on the sentence given to Carter's niece for similar conduct; and (3) the district court erred when it enhanced his sentence by two levels for obstruction of justice. Because the district court did not err in applying the obstruction enhancement, and because it imposed a reasonable sentence, we affirm.

I.

Between January 31, 2001, and January 13, 2003, Vernon Carter filed three federal tax returns that contained false information. As a result of those falsifications, Carter collected from the government tax refunds totaling $ 8,397. On January 18, 2006, the government charged Carter with three counts of filing false, fictitious, and fraudulent tax returns for calendar years 2000, 2001, and 2002, in violation of 18 U.S.C. § 287 and 18 U.S.C. § 2. Thereafter, a jury convicted Carter on all three counts. Carter's niece, Tamara Carter, was also involved in the tax fraud scheme. Tamara pleaded guilty to three counts of filing false tax returns and testified against Carter at trial. She received a sentence of 60 months' probation and six months of house arrest, and was ordered to pay restitution in the amount of $ 8,242.

The district court held Carter's sentencing hearing on April 20, 2007. Prior to the hearing, Carter filed a motion requesting a downward departure pursuant to U.S.S.G. § 5H1.6 or, in the alternative, a "tailored sentence" under 18 U.S.C. § 3553(a). In the motion, Carter argued that a sentence of probation and home detention was appropriate on account of Carter's "exceptional family circumstances," and in light of the sentence that Carter's niece Tamara received for similar conduct. Carter also argued that the Presentence Investigation Report's assessment of the obstruction of justice enhancement under U.S.S.G. § 3C1.1 was improper.

During the sentencing hearing, Carter presented testimony from his wife, Danielle Carter. Mrs. Carter testified that she suffered from rheumatoid arthritis and had been unable to work as a result of her condition. Mrs. Carter testified that although her doctors hoped that she would be able to work in the future, Carter—who had earned approximately $1,320 per month as a cook at TGI Friday's—was the only person currently earning income for the household. Mrs. Carter also testified that the Carters have three minor children, who were two, five, and eight years old at the time of the sentencing hearing. Two of the children were born with sickle cell anemia and one suffers from asthma. According to Mrs. Carter, sickle cell anemia causes her children to experience "pain crises." One of the children had recently been hospitalized for two weeks due to his medical condition.

Mrs. Carter related that Carter is a good father and helpful with the care of their children. She testified that Carter's assistance in caring for their children is made necessary by her rheumatoid arthritis. She also testified that financial assistance from other family members would not be available in the event that Carter became incarcerated. On cross-examination, Mrs. Carter acknowledged that the family's healthcare costs, hospital bills, and medication are at least partially covered by health insurance called TennCare, and that the family would remain covered by TennCare even if Carter became incarcerated. Mrs. Carter further testified that her family receives food stamps and lives in government subsidized housing. She acknowledged that the food stamp and housing support would not change drastically in the event that her husband became incarcerated.

Internal Revenue Service ("IRS") Special Agent John Thompson also testified at the sentencing hearing. Thompson related that, on April 12, 2004, IRS agents investigating Carter's tax activities interviewed Carter regarding his returns for tax years 1999, 2000, 2001, and 2002. According to Thompson, Carter told the agents that he had not signed or filed the tax returns in question and did not know who had signed the returns. Thereafter, agents served Carter with a summons requesting that Carter appear to provide fingerprint and handwriting exemplars. Carter failed to appear pursuant to the summons, forcing Agent Thompson to obtain exemplars of Carter's handwriting from the Tennessee Parole and Probation Office and a copy of Carter's fingerprints from the Metropolitan Nashville Police Department ("MNPD"). Thompson also obtained copies of cancelled checks that the filer of the tax returns in question had obtained in connection with a refund anticipation loan. Thompson sent the obtained records to a forensic laboratory for analysis and the laboratory matched Carter's signature to the cancelled checks. The lab also matched a fingerprint on one of the checks to the fingerprint records that Thompson obtained from the MNPD. On cross-examination, Thompson acknowledged that obtaining the checks, fingerprints, and handwriting exemplar was essentially a "ministerial function" that did not require Carter's cooperation.

At the conclusion of the sentencing hearing, the district court determined that the combination of Carter's false denials to investigators and his failure to appear pursuant to the summons warranted an enhancement for obstruction of justice under U.S.S.G. § 3C1.1. The district court also denied Carter's motion for a downward departure/variance based on "exceptional family circumstances." The court explained that Carter used his family members in the commission of the offense and that Carter's children would not be left in circumstances that warranted a sentence below the applicable guidelines range. Finally, the district court found that Carter had a more extensive criminal history than his niece and thus refused to vary Carter's sentence to match his niece's sentence. With the obstruction of justice enhancement, the district court calculated Carter's total offense level to be 10. Carter's criminal history category was IV, yielding an advisory sentencing guidelines range of 15 to 21 months' imprisonment. The district court imposed a within-guidelines sentence of 15 months' imprisonment, three years of supervised release, restitution in the amount of $ 8,397, and a $ 300 special assessment.

II.

Because the district court properly applied the obstruction enhancement and imposed a reasonable sentence, we affirm. Carter's false statements to investigators and his failure to appear, pursuant to a summons, to provide fingerprints and handwriting exemplars warranted the obstruction of justice enhancement under U.S.S.G. § 3C1.1. Moreover, in denying Carter's motion for a downward departure/variance, the district court properly considered Carter's arguments, accounted for the relevant 18 U.S.C. § 3553(a) factors, and otherwise imposed a reasonable sentence.

A.

Carter's first argument, that the district court erred in applying the two-level obstruction of justice enhancement to his offense level, is without merit. Where, as here, the facts underlying the obstruction enhancement are undisputed, we review de novo whether the undisputed facts are sufficient to establish obstruction of justice. See United States v. Davist, 481 F.3d 425, 427 (6th Cir.2007).¹ Under U.S.S.G. § 3C1.1, an offense level may be increased by two levels for obstruction of justice if,

(A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant's offense of conviction and any relevant conduct; or (ii) a closely related offense.

Carter bases his argument against the obstruction enhancement on Application Notes 4(g) and 5(b) of § 3C1.1. Application Note 5(b) states that "making false statements, not under oath, to law enforcement officers" is not sufficient for the obstruction of justice enhancement unless Application Note 4(g) applies. Application Note 4(g) applies only if a defendant "provid[ed] a materially false statement to a law enforcement officer that significantly obstructed or impeded the official investigation or prosecution of the instant offense." Because Carter was not under oath when he made false statements to IRS agents, he argues that Application Note 4(g) governs the determination of whether the obstruction enhancement was proper. Accordingly, Carter contends that the district court erred in applying the obstruction enhancement because his conduct did not "significantly obstruct or impede" the government's investigation.

Carter's position is not persuasive on the record of this case. As a preliminary matter, Application Notes 4(g) and 5(b) are relevant only to the extent that an...