U.S. v. Shriver, 91-3194
| Decision Date | 05 August 1992 |
| Docket Number | No. 91-3194,91-3194 |
| Citation | 967 F.2d 572 |
| Parties | -5446 UNITED STATES of America, Plaintiff-Appellee, v. Paul S. SHRIVER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
George E. Tragos, Clearwater, Fla., for defendant-appellant.
Jeffrey F. Michelland, Asst. U.S. Atty., Ft. Myers, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before EDMONDSON, Circuit Judge, RONEY * and GIBSON **, Senior Circuit Judges.
Appellant, Paul S. Shriver, obtained a certified copy of a Notice of Federal Tax Lien ("Lien Notice") filed by the IRS from the Charlotte County Courthouse in Florida. The tax lien against Shriver covered the years 1980 through 1984. Before the IRS filed this lien, Shriver had transferred title to his real property in Charlotte County to his wife. After obtaining the Lien Notice, Shriver stamped the words "VOIDED BY FLA.STATUTES" on the face of the document and annotated it with the handwritten date, "June 13, 1989," and the signature " ." Shriver then filed the altered Lien Notice at the Charlotte County Courthouse.
Shriver was indicted by a federal grand jury and charged in Count I with corruptly endeavoring to obstruct and impede the due administration of Title 26, United States Code, by interfering with the efforts of the IRS to collect tax deficiencies owed by Shriver, in violation of 26 U.S.C. § 7212(a). Count II charged that Shriver made a false statement to an IRS inspector, in violation of 18 U.S.C. § 1001. Shriver pled guilty to Count I. Shriver appeals the application of the Sentencing Guidelines to his case. We vacate the sentence and remand for resentencing.
Shriver contends that the district court erred in applying U.S.S.G. § 2F1.1, Fraud and Deceit, as the applicable guideline for his conviction of attempting to interfere with the administration of the internal revenue laws. Shriver argues that the court should have applied the guideline specified for the offense in the statutory index to the Sentencing Guidelines, U.S.S.G. Appendix A.
According to the statutory index, the guidelines ordinarily applied to a defendant convicted under 26 U.S.C. § 7212(a) are section 2A2.2, Aggravated Assault, and section 2A2.3, Minor Assault. The introduction to the statutory index, however, contains an important warning:
If, in an atypical case, the guideline section indicated for the statute of conviction is inappropriate because of the particular conduct involved, use the guideline section most applicable to the nature of the offense conduct charged in the count of which the defendant was convicted. (See § 1B1.2)
U.S.S.G.App.A (emphasis added).
The statute under which Shriver was convicted proscribes interference with the IRS by corrupt or forcible means. 26 U.S.C. § 7212(a). In the present case, Shriver was convicted of corruptly endeavoring to impair or impede the due administration of the tax laws by transferring real estate to his spouse and by filing an altered Lien Notice in an attempt to cause the release of that lien. No evidence in this case suggests that Shriver ever assaulted anyone in trying to meet his objective of defrauding the IRS.
The district court, taking into consideration Shriver's conduct, decided to apply the guideline which most closely tracked his actions--s 2F1.1 Fraud and Deceit--instead of the "assault" guideline specified in the index. This circuit's precedent clearly permits a district court to apply a sentence guideline which reflects the defendant's conduct. See United States v. Day, 943 F.2d 1306, 1307 (11th Cir.1991) ().
The question about whether a particular guideline applies to a given set of facts is a question of law, see United States v. Scroggins, 880 F.2d 1204, 1206 n. 5 (11th Cir.1989), and thus this issue is subject to de novo review. Given the particular facts of this case, however, we conclude that the use of the fraud guideline in sentencing Shriver is appropriate.
Shriver asserts that the district court erred in applying a four-level adjustment based upon the dollar amount of the loss involved. Shriver contends that no loss enhancement should be applied because Shriver's wife was the one who received the proceeds of the sale of the house.
The commentary to U.S.S.G. § 2F1.1 states that "if an intended loss that the defendant was attempting to inflict can be determined, this figure will be used if it is greater than the actual loss." U.S.S.G. § 2F1.1, comment. (n.7). According to the plea agreement, Shriver intended to cause a loss to the IRS by transferring his real property to his wife. That his wife actually received the proceeds of the sale is irrelevant to the loss Shriver caused the IRS.
In this case, the intended loss could arguably have been $106,790.18, the assessment on the Lien Notice that defendant attempted to void by altering and refiling the Notice of the Lien. The district court, however, decided to use a lesser amount of $24,663, the amount of money actually gained from the sale of the house.
Because Shriver stipulated in the plea agreement that he transferred the house to his wife to impede and obstruct the tax laws, the proceeds from the sale of the house were appropriate for the court to consider as an identifiable and intended loss. It was therefore not erroneous for the district court to use the $24,663 figure and match that to the mandatory four-level enhancement under Section 2F1.1. See Scroggins, 880 F.2d at 1215 ().
Shriver contends that the district court erred in increasing his sentence two levels for obstruction of justice. At the sentencing hearing, Shriver admitted to having denied knowledge of the altered Lien Notice when asked about it by an IRS inspector. Shriver insists, however, that the court erred in imposing an enhancement for obstruction of justice; he says that no false statement he made to the IRS inspector actually impeded the investigation.
Section 3C1.1 of the Guidelines provides for a two-level enhancement "if the defendant willfully impeded or obstructed, or attempted to impede or obstruct the...
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