United States v. Thomsen

• Decision Date: 28 July 2016
• Docket Number: No. 13-50235,13-50235
• Citation: 830 F.3d 1049
• Parties: United States of America, Plaintiff–Appellee, v. Neil Thomsen, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

830 F.3d 1049

United States of America, Plaintiff–Appellee

v.Neil Thomsen, Defendant–Appellant.

No. 13-50235

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 8, 2016 Pasadena, California

Filed July 28, 2016

Gail Ivens (argued), Deputy Federal Public Defender; Hilary L. Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Defendant–Appellant.

Joseph J.M. Orabona (argued), Assistant United States Attorney; Peter Ko, Chief, Appellate Section, Criminal Division; Laura E. Duffy, United States Attorney; United States Attorney's Office, San Diego, California; for Plaintiff–Appellee.

Before: Stephen Reinhardt and Kim McLane Wardlaw, Circuit Judges, and Mark W. Bennett, Senior District Judge.^**

OPINION

BENNETT, Senior District Judge:

On July 14, 2010, Neil Thomsen, then a 67-year-old retired engineer turned tax preparer, was charged, as the sole defendant, with 34 federal offenses arising from a tax fraud scheme. On December 8, 2011, a jury convicted him of 32 of those offenses, after the prosecution withdrew two. He was sentenced to fifteen years of imprisonment and ordered to pay just over $500,000 in restitution. He now appeals his conviction of two offenses, the restitution order, and the calculation of his advisory guidelines sentencing range. We affirm in part, reverse in part, and remand for further proceedings.

I. INTRODUCTION

A. Charges And Conviction

The charges against Thomsen arose from an alleged tax fraud scheme, beginning on a date unknown and continuing through about April 15, 2009, that is, for the 2009 tax season relating to the 2008 tax year. The Indictment alleged the essence of the scheme was “that defendant THOMSEN fraudulently used the personal identification, including names and [social security numbers], of individuals, for whom he prepared tax returns or who had their tax returns prepared by an entity where defendant THOMSEN was employed, in order to file false income tax returns with the IRS and to obtain tax refunds and tax preparation fees to which he was not entitled.” Indictment, ¶ 11. Two of the charges require specific mention, as they are the only convictions that Thomsen appeals: In Count 33, Thomsen was charged with fraud and misuse of visas, permits, and other documents, in violation of 18 U.S.C. § 1546(a), arising from his use, on or about April 25, 2009, of a United States passport card bearing his photograph, but the name and biographical information of another person, on an application for an Earth Class Mail account; and, in Count 34, he was charged with aggravated identity theft, in violation of 18 U.S.C. § 1028A, during and in relation to the felony passport card fraud offense.¹

Thomsen's trial began on November 29, 2011, and continued on December 2, 6, 7, and 8. The prosecution dismissed two mail fraud counts (Counts 5 and 6) before the case was submitted. The jury convicted Thomsen of the other 32 counts. Thomsen obtained permission to proceed pro se , thereafter, but with advisory counsel. On March 28, 2012, Thomsen filed a pro se Motion For Judgment Of Acquittal, as relevant here, on Counts 33 and 34. The court denied that motion on April 17, 2013.

B. Charges And Disposition In The Second Case

On May 31, 2011, well before Thomsen's trial on the first Indictment, Thomsen and three co-defendants were charged in a separate Indictment, in a separate case, with conspiring, from a date unknown through about May 2011, to defraud the United States by obtaining, and aiding others to obtain, the payment of false, fictitious, and fraudulent claims against the United States, specifically, income tax refunds, in violation of 18 U.S.C. § 286 and 18 U.S.C. § 2. The second Indictment alleged overt acts in furtherance of this conspiracy between December 30, 2009, and March 29, 2010.² Thomsen's three co-defendants all eventually pleaded guilty to the fraudulent claims conspiracy charge in the second case and were sentenced to time served. They were also ordered to pay restitution in the amount of $197,922.04, jointly and severally. Thomsen neither pleaded guilty to nor was convicted on any of the charges against him in the second case. The second indictment was eventually dismissed as to Thomsen after he was sentenced in the first case.

C. Sentencing

A Presentence Report (PSR) concerning Thomsen, filed July 20, 2012, indicates that the probation officer used the November 1, 2011, Guidelines Manual. The PSR calculated an advisory guidelines range of 135 to 168 months of imprisonment, recommended a sentence approximately in the middle of that range, and recommended restitution in the amount of $317,337. At the first of three sentencing hearings, on March 4, 2013,³ Thomsen recommended a sentence of not more than 5 years (60 months), and the prosecution recommended a sentence of 416 months. The prosecution stated its intent to increase the amount of restitution it was seeking, based on its desire to “roll that second case as relevant conduct into the first case,” for a total of over $500,000 in restitution. Not surprisingly, Thomsen objected.

On April 17, 2013, the probation officer filed an Addendum To Presentence Report (Addendum), addressing the parties' objections to the original PSR. Neither the defendant nor the AUSA objected to the use of the 2011 Guideline Manual in the original PSR as the use of the wrong year of the Manual, nor did the probation officer recognize this crucial mistake. The Addendum did, however, recalculate Thomsen's advisory guidelines sentence. Those calculations are significant to Thomsen's appeal.

Specifically, for offenses in Group One (Counts 1–4, 7–16, and 17–24), the Addendum started with a base offense level of 7, pursuant to U.S.S.G. § 2B1.1(a)(1) ; added 14 levels for an intended loss between $400,000 and $1,000,000, pursuant to U.S.S.G. § 2B1.1(b)(1)(H) ; added 6 levels for more than 250 victims, pursuant to U.S.S.G. § 2B1.1(b)(2)(C) ; added 2 levels for “sophisticated means,” pursuant to U.S.S.G. § 2B1.1(b)(10)(C) ; added 2 levels for using victims' social security numbers to produce other means of identification, identified as personal tax returns, pursuant to U.S.S.G. § 2B1.1(b)(11)(C)(I) ; added 2 levels for abuse of a position of trust, because Thomsen was a tax preparer to whom the personal information of others had been entrusted, and he used that information for his own financial gain, pursuant to U.S.S.G. § 3B1.3 ; and added 2 levels for obstruction of justice, based on false testimony at trial, pursuant to U.S.S.G. § 3C1.1. These calculations resulted in an adjusted offense level of 35 for Group One.

For the offense in Group Two (Count 33), the Addendum started with a base offense level of 7, pursuant to U.S.S.G. § 2L2.2(c)(1), using the cross-reference to U.S.S.G. § 2X1.1, because Thomsen used a passport or visa in the commission of a felony, with underlying substantive offenses of mail fraud, false claims, and fraudulent use of a social security card, making the corresponding offense level the one set out in U.S.S.G. § 2B1.1. The Addendum then made the identical adjustments to the offense level that it had made for the Group One offenses. These calculations, again, resulted in an adjusted offense level of 35.

The Addendum determined that the multiple count adjustment, pursuant to U.S.S.G. § 3D1.4, required an increase of two levels to 37. The Addendum then rejected any adjustment for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a). With a criminal history category of I, these calculations resulted in an advisory guidelines range of 210 to 262 months of imprisonment. The Addendum recommended a 72-month sentence (concurrent as to each count), however, based on the 18 U.S.C. § 3553(a) factors. The Addendum then applied a mandatory sentence of 2 years, consecutively, for each of Counts 25 through 32 and 34, which would have increased the sentence to 24 years (288 months). The Addendum recommended that the mandatory 2-year sentences on these counts run concurrently, however, which raised the recommended sentence to only 96 months (8 years).

At Thomsen's final sentencing hearing, the district judge heard arguments from the parties, then imposed sentence. More specifically, the district judge stated,

First, I'm going to deal with the objection [sic]. There were various objections, lots of objections that were filed by Mr. Thomsen. I have a trial with a jury coming in in a short while, so I don't have really the time to go through all of them. I'm simply going to indicate that I have reviewed probation's response to those objections, and I adopt probation's views on every one of those objections. I think there was one exception. Let me double-check.

Well, I note that there was an objection. I believe it was objection no. 16, which the court will grant.

The district judge concluded that some objections (nos. 17–19) would have no effect on the sentence that he would impose, then reiterated that he was “adopt [ing] probation's findings and recommendations in connection” with the remaining objections.

Next, the district judge summarized and accepted the sentencing calculations in the Addendum; described the seriousness of the offense, and his reasons for rejecting both the prosecution's request for a sentence of 416 months and the probation officer's recommendation of 96 months; and explained his application of the § 3553(a) factors. Ultimately, the district judge imposed a sentence of 15 years (180 months). The district judge also ordered restitution in the amount of $515,257.75, with a credit of $61,545, and a remaining balance of $453,712.75 to be paid to the IRS, which included the loss in the second case against Thomsen and three co-defendants. The district judge expressly ordered “that the restitution in [the second case], in the amount of $197,922.04, be made payable jointly and severally with the other co-defendants in that case.”

D. Issues On Appeal

Thomsen filed timely notices...