United States Court of Appeals
Fifth Circuit
F I L E D
REVISED OCTOBER 26, 2005
September 30, 2005
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 04-50527
UNITED STATES OF AMERICA
Plaintiff-Appellee
versus
SAMUEL SALDANA, JR
Defendant-Appellant
_________________________________________________________________
No. 04-50591
UNITED STATES OF AMERICA
Plaintiff-Appellee
versus
SAUL SALDANA
Defendant-Appellant
--------------------
Appeals from the United States District Court
for the Western District of Texas
--------------------
Before JONES, WIENER, and CLEMENT, Circuit Judges.
WIENER, Circuit Judge:
Defendants-Appellants, twin brothers Samuel and Saul Saldana,
challenge their respective convictions for corruptly endeavoring to
impede the administration of Internal Revenue laws and for filing
false statements. They also contend that the district court
sentenced them in violation of their Sixth Amendment rights in
light of the Supreme Court’s recent United States v. Booker
decision or, in the alternative, that the sentences imposed by the
district court were unreasonable. Although the brothers were tried
and sentenced separately, they moved successfully to have their
cases consolidated on appeal. Following oral argument, we issued
an order of limited remand regarding Samuel’s sentence to allow the
district court to provide written reasons for its upward departure
in that sentence.1 Having received and reviewed such written
reasons from the district court, we now affirm both defendants’
convictions and sentences.
I. FACTS AND PROCEEDINGS
Samuel and Saul were indicted by a Grand Jury on one count
each for corruptly endeavoring to obstruct and impede the due
administration of Internal Revenue Laws in violation of 26 U.S.C.
§ 7212(a) (“§ 7212"). Saul was indicted on twelve, and Samuel on
sixteen, additional counts for filing false statements in violation
of 18 U.S.C. § 1001(a)(3) (“§ 1001"). The government charged the
brothers with filing false tax reports regarding several
1
See 18 U.S.C. § 3553(c).
2
individuals for the purpose of triggering Internal Revenue Service
(“IRS”) audits and thereby harassing and intimidating these
individuals. Different juries convicted each brother on all counts
at separate trials before the same district judge.
The brothers were convicted for sending IRS Forms 8300
(“8300s”), “Report of Cash Payments over $10,000 Received in a
Trade or Business,”2 to the IRS, falsely stating that the
defendants had paid or received cash payments to or from a number
of individuals identified in such forms. On the portion of the
8300s that request information regarding the amount of money
exchanged by the filer with another party, the defendants either
left the space blank or wrote $10,000 or filled in some
astronomical figure such as $213 quintillion or
$1,955,000,000,000,000. None of the persons identified in these
forms had ever received any money from, or given any money to,
either defendant. No one disputes that each brother engaged in the
acts with which he was charged. Rather, each trial centered on
whether the defendant harbored the requisite intent “corruptly” to
obstruct the administration of Internal Revenue laws.
Each of the individuals with whom, on the 8300s, Saul and
Samuel claimed to have transacted was in some way connected with
2
The IRS monitors large payments between businesses with
8300 forms; if a filer believes that the payment may not have
been reported, he may check a box labeled “suspicious
transaction.” If the box is checked, a form is sent to the
individual named on the form requesting more information. 8300
forms are signed under penalty of perjury.
3
state or local government. Most of the individuals targeted by
Saul had never met him but (1) had written to him letters about his
tax obligations, (2) had otherwise assessed fines or penalties for
the government, or (3) were lawyers representing governmental
entities that were seeking to assess fines, penalties or taxes
against him. Samuel targeted judges and attorneys involved in
proceedings against him or other public officials against whom he
bore grudges.
Saul argues that he filed these 8300s in good faith, having
learned about this tactic in a “tax course” that he attended with
his fiancée, which course purported to inform those in attendance
about a so-called “redemption” or “charge-back” process. This
process purportedly permits individuals to redeem money from the
government for a variety of nonsensical reasons, including that the
government has an account for each citizen that is linked to the
citizen’s birth certificate.
Saul attempted to introduce into evidence “black manuals” that
he claims to have received in this class and that explain this
process. The trial court refused to allow the manuals into
evidence, ruling that they were, alternatively, inadmissible
hearsay, cumulative evidence, and would confuse the jury.
Nevertheless, Saul testified to the jury that he relied on these
manuals and generally described the “redemption process.” An
acquaintance of Saul’s, Rick Garcia, testified that Saul advised
him to file false 8300s against a judge presiding over Garcia’s
4
narcotics trafficking trial, as doing so would intimidate the judge
and cause him to “back off” from Garcia’s case.
At each trial, IRS Special Agent Jeff Allen testified that the
defendants’ actions cost the IRS several hundred hours of
investigative manpower, requiring numerous levels of administrative
review. At Samuel’s trial, Allen testified additionally that
Samuel was an anti-government tax protester who did not believe the
IRS had jurisdiction over him and that, in filing the 8300s, Samuel
sought to retaliate, intimidate, and harass the persons named in
these forms. Allen stated that this is a common scheme used by
anti-government protestors against public officials with whom the
protestors have come into contact.
The targets of the false report forms testified at trial,
stating that they had experienced various levels of concern,
primarily about the possibility of an audit or, for many of the
public officials, about their reputations if the public were to
believe that they had received large sums of unreported income.
None of the targeted persons was audited by the IRS or employed an
attorney to defend them.
June Collerd, the mother of Samuel’s children, testified that
Samuel sent her an e-mail during a custody battle, advising that he
would report her to the IRS, the Treasury Department, and six other
federal agencies. Collerd stated that Samuel also told her that
public officials involved in the custody case would “get theirs,”
that he was “going to get them,” or that they would “pay for what
5
they did to him.”
The trial court sentenced Saul to a six month term of
imprisonment on each count, ordering (1) that he serve counts one
through four consecutively with counts five through thirteen to run
concurrently, for a total incarceration of twenty-four months, (2)
that he remain on supervised release for three years, and (3) that
he pay a $1,300 mandatory assessment. The court sentenced Samuel
to consecutive ten-month terms of imprisonment on six counts, and
concurrent terms of imprisonment on the remaining eleven counts,
for a total of sixty months imprisonment. In addition, the court
ordered Samuel to be placed on supervised release for a term of one
year on count one and three years on counts two through seventeen,
to run concurrently, for a total of three years supervised release.
The court also imposed a mandatory assessment of $1,700.
In directly appealing his conviction, each defendant
challenges the district court’s interpretation of § 7212 and also
challenges his sentence. Saul also appeals the court’s refusal to
allow his tax manuals into evidence.
II. ANALYSIS
A. 26 U.S.C. § 7212: Defining “Corruptly”
1. Standard of Review
As each brother makes an identical argument with respect to
the first issue on appeal, we discuss their cases together. All
parties characterize the defendants’ first argument as a challenge
to the sufficiency of the evidence, but it actually implicates the
6
proper interpretation of § 7212(a), which prohibits
corruptly or by force or threats of force . . .
endeavor[ing] to intimidate or impede any officer or
employee of the United States acting in an official
capacity under this title, or in any other way
corruptly or by force or threats of force . .
.obstruct[ing] or imped[ing], or endeavor[ing] to
obstruct or impede, the due administration of this
title.
The brothers argue that the evidence did not support the jury’s
finding that either acted “corruptly” within the meaning of §
7212(a). They insist that our case law requires the government to
show that the defendant sought an unfair benefit or advantage under
the tax laws to prove that he acted with the requisite intent.
Although the government in its response frames the defendants’
challenges as going to the sufficiency of the evidence to show that
the brothers sought an unfair advantage or benefit without
reference to the tax laws, the prosecution points out that, at
Samuel’s trial, the court instructed the jury —— without defense
objection —— on the meaning of “corruptly:” “To act ‘corruptly’
means to act knowingly and dishonestly with the specific intent to
secure an unlawful benefit either for oneself or for another.” The
record shows that an identical instruction was given to the jury in
Saul’s case, also without objection by the defendant.
Ordinarily, we review issues of statutory interpretation de
novo.3 In this case, however, neither defendant objected to the
3
ADM/Growmark River Sys. v. Lowry, 234 F.3d 881, 886 (5th
Cir. 2000).
7
trial court’s instructions to the jury defining “corruptly,” so we
review that instruction for plain error.4 To prevail under this
standard of review, a defendant must demonstrate “(1) that an error
occurred; (2) that the error was plain, which means clear or
obvious; (3) the plain error must affect substantial rights; and
(4) not correcting the error would seriously affect the fairness,
integrity, or public reputation of judicial proceedings.”5
2. Jury Instructions
At the outset, we must determine whether the district court’s
instructions to the jury were erroneous.6 Defendants attempt to
argue that the district court should have instructed the jury that
“corruptly,” as used in § 7212, means intentionally endeavoring to
gain an advantage or benefit inconsistent with a person’s rights
and duties under the tax laws. The Internal Revenue Code’s
criminal section does not define “corruptly,”7 yet defendants
assert that we have defined “corruptly” with this reference to the
tax laws when evaluating § 7212.8 In so doing, defendants rely on
4
Russell v. Plano Bank & Trust, 130 F.3d 715, 721 (5th Cir.
1997).
5
Id.
6
Id.
7
Black’s Law Dictionary defines “corruptly” as used in
criminal-law statutes as “indicates a wrongful desire for
pecuniary gain or other advantage.” Black’s Law Dictionary 371
(8th ed. 2004).
8
See United States v. Reeves, 752 F.2d 995, 1001-1002 (5th
Cir. 1985) (“Reeves I”).
8
United States v. Reeves9 —— in actuality, two cases.
In Reeves I, we reversed the defendant’s conviction for
violating § 7212, holding that the district court had wrongly
interpreted “corruptly” to mean “with improper motive or bad or
evil purpose.”10 Defendants are correct in noting that we stated
in Reeves I that “[t]he legislative history supports an
interpretation of § 7212(a) as forbidding endeavors intended to
give some advantage inconsistent with the rights and duties of
others under the tax laws.”11 Defendants fail to mention, however,
that, without any reference to the tax laws, we went on to state in
the same paragraph that “[a]ccordingly, the legislative history of
section 7212(a) supports interpreting its prohibition against
‘corruptly’ endeavoring to impede or obstruct Title 26 as
forbidding those acts done with the intent to secure an unlawful
benefit either for oneself or for another.”12 Even more
significantly, our actual holding in Reeves I made no mention of
benefits or advantages obtained under the tax laws: “We hold that
the filing of frivolous common law liens with the intention of
securing improper benefits or advantages for one's self or for
others constitutes a prohibited corrupt endeavor under section
9
782 F.2d 1323 (5th Cir.), cert denied, 479 U.S. 837 (1986)
(“Reeves II”) (citing Reeves I, 752 F.2d at 1001-02)
10
752 F.2d at 998.
11
Id. at 1000 (emphasis added).
12
Id. at 1001.
9
7212(a).”13 We remanded Reeves’s case for a determination whether
he had acted “corruptly” under this new definition.
When, in Reeves II, we heard the defendant’s second appeal
from conviction, we reiterated our earlier holding without
reference to an improper benefit or advantage under the tax laws.
Defendants’ argument therefore rests on one statement in Reeves I
that was not the holding and was not repeated anywhere else in
either opinion.14
Other circuits, many citing Reeves, have also defined
“corruptly” under § 7212 as meaning “to act with the intent to
secure an unlawful advantage or benefit either for one's self or
for another” without addressing whether the advantage or benefit is
confined to benefits under the tax laws.15 Although the advantages
13
Id. at 1001-02 (emphasis added).
14
One of our later opinions has re-stated the
Reeves definition of “corruptly” without reference to the tax
laws. See United States v. Andersen, 374 F.3d 281, 293-294 (5th
Cir. 2004) (defining “corruptly” with respect to 18 U.S.C. §
1512(b): “In United States v. Reeves, for example, we defined
the term to be an intent to “secure improper benefits or
advantages for one's self or for others.”).
15
See, e.g., United States v. Kelly, 147 F.3d 172, 177 (2d
Cir. 1998); United States v. Wilson, 118 F.3d 228, 234 (4th Cir.
1997) (“We have held that the term ‘corruptly,’ as used in [§
7212] forbids acts committed with the intent to secure an
unlawful benefit either for oneself or for another.”); United
States v. Winchell, 129 F.3d 1093, 1098 (10th Cir. 1997) (“As
used in this section, to act corruptly means to act with the
intent to secure an unlawful benefit either for oneself or for
another.”); United States v. Hanson, 2 F.3d 942, 946 (9th Cir.
1993) (citing Reeves I, 752 F.2d at 998-99); United States v.
Popkin, 943 F.2d 1535, 1540 (11th Cir. 1991) (“We agree with the
definition adopted in Reeves. It comports with our view that
10
or benefits sought by the defendants in those cases were often
related to manipulation of the tax laws, none of the decisions
listed has relied on or emphasized this fact or included “under the
tax laws” in their holdings. In fact, the Eighth and Sixth
Circuits have upheld convictions under § 7212 when the defendants
had not sought any advantage under the tax laws. The Eighth
Circuit in United States v. Yagow noted only that the defendant
sought a financial advantage, not an advantage under the tax laws,
by filing fraudulent IRS forms.16 In a case very similar to the
instant one, United States v. Bowman, the Sixth Circuit affirmed a
defendant’s conviction for violation of § 7212(a) when the
defendant had filed false 1099 and 1096 forms for the sole
purpose of intimidating and harassing his creditors.17 The
Bowman court held that the defendant’s conduct fell within the
ambit of § 7212(a)’s proscribed conduct even though he sought no
financial advantage or benefit for himself under the tax laws.18
‘corruptly’ was used in § 7212(a), as in the general obstruction
of justice statute, to prohibit all activities that seek to
thwart the efforts of government officers and employees in
executing the laws enacted by Congress.”).
16
953 F.2d 423, 427 (8th Cir. 1992). The Yagow defendant
sent fraudulent 1099 and 1096 forms to individuals involved in
repossessing much of his property during a bankruptcy action and
to individuals involved in a state prosecution against his son
for alcohol possession; the defendant also submitted the forms to
the IRS. Id. at 425-26.
17
United States v. Bowman, 173 F.3d 595, 596-97 (6th Cir.
1999).
18
Id. at 600.
11
In the context of these holdings by other circuits, the facts
that (1) the Reeves holdings did not include under the tax laws,
and (2) the language of the statute itself does not require that an
individual intend to procure a benefit for himself under the tax
laws to have formed the requisite mens rea, we hold that the
district court did not err —— certainly not plainly —— in its jury
instructions. We do not address whether a defendant must be
seeking a financial advantage, as in Yagow,19 or whether § 7212 is
aimed at any behavior that seeks to thwart government efforts to
execute tax laws, as the Eleventh Circuit has held,20 because the
defendants in this case sought to do both.21
B. Admission of Saul Saldana’s “Tax Manuals”22
1. Standard of Review
19
953 F.2d at 427.
20
See Popkin, 943 F.2d at 1540.
21
Defendants did not actually brief a colorable challenge
to the sufficiency of the evidence but only challenged that the
evidence did not support that they sought an unfair benefit or
advantage under the tax laws —— therefore we need not consider
this argument on appeal. Cinel v. Connick, 15 F.3d 1338, 1345
(5th Cir. 1994) (“A party who inadequately briefs an issue is
considered to have abandoned the claim.”) (citing Villanueva v.
CNA Ins. Cos., 868 F.2d 684, 687 n.5 (5th Cir. 1989)).
In any event, in light of our holding that “corruptly” does
not include a requirement that the government prove that
defendants sought such an advantage under the tax laws, there can
be no doubt that defendants’ convictions were supported by
sufficient evidence, as a rational jury could have found the
essential elements of the crime beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 319 (1979).
22
Samuel Saldana did not appeal this issue.
12
We review the admission or exclusion of evidence for abuse of
discretion.23 If we conclude that a district court has abused its
discretion, we apply the harmless error doctrine.24 Accordingly,
unless the trial court has abused its discretion and a substantial
right of the defendant has been affected, we will not reverse on
the basis of the evidentiary ruling in question.25
The government advances that we should review Saul’s challenge
to the district court’s exclusion of the manuals for plain error,
because he did not counter the government’s hearsay objection at
trial and raises his non-hearsay argument for the first time on
appeal.26 Even if we assume arguendo that the district court
plainly erred when it excluded the manuals as hearsay, we conclude
that the court did not abuse its discretion when it decided to
exclude the manuals as cumulative and as potentially confusing to
the jury.
2. Rule 403
Saul challenges the district court’s decision to exclude the
“black manuals” that he claims to have received in a tax class at
which he purports to have learned about the “charge-back” or
23
United States v. Powers, 168 F.3d 741, 748 (5th Cir.
1999).
24
Id.
25
United States v. Asibor, 109 F.3d 1023, 1032 (5th Cir.
1997).
26
See Johnson v. United States, 520 U.S. 461, 465-66
(1997).
13
“redemption” process. Saul contends that his receipt of and
reliance on these manuals demonstrate his good-faith belief and
intent to use a valid legal process to discharge his property taxes
and other public debts. The government counters that Saul and his
girlfriend, Peggy Briggs, were allowed to testify without
contradiction about the charge-back scheme, and that Saul also
testified about his reliance on the manuals and their contents.
The government states that the district court properly excluded the
manuals both as hearsay and because the manuals’ probative value
was not outweighed by their potential to confuse the jury.
The manuals at issue are plastic three-ring binders containing
a random assortment of Xerox copies of statutes, cases, printed-out
e-mails, banking and credit card instructions, and various bizarre
papers, such as a chart illustrating the “Diogenes Historical
Society” contrast of “Our Creator’s Law” and “Man’s Legal System,”
a copy of the Communist Manifesto, a comic strip, and a description
of the movie, The Matrix. There is no summary or obvious
organization of the contents, but the binders do contain copies of
IRS Forms 8300, suspicious activity reports, and instructions on
something that looks similar to what Saul described as the charge-
back process. The binders are labeled with a piece of paper on
which “Redemption Process” is hand-written in felt-tip marker.
Rule 403 of the Federal Rules of Evidence (“FRE 403") permits
a trial court to exclude evidence if “its probative value is
substantially outweighed by the danger of unfair prejudice,
14
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” In this case, the manuals’
probative value is slight: They are cumulative of Saul’s
unchallenged testimony that he relied on the tax class and these
binders in implementing the redemption process.27 Their appearance
is so unprofessional and random that, if anything, they undermine
Saul’s arguments that he truly believed that he engaged in a
legitimate legal process. The manuals’ potential to confuse the
jury, in contrast, was quite high. They contain inaccurate legal
advice and an assortment of strange and unrelated documents that
have nothing to do with taxes or with this case.28
The trial court did not abuse its discretion in excluding the
manuals on the basis of FRE 403's balancing. Even if the manuals
were not inadmissible hearsay, because their admittance was sought
27
See United States v. Insaulgarat, 378 F.3d 456, 466 (5th
Cir. 2004) (holding that, although the defendant argued that
police reports would have boosted his credibility by
demonstrating that he protested his innocence from the moment of
arrest, the defendant himself testified to his statements at the
time of his arrest and the police officer did not testify
otherwise —— thus the evidence was cumulative and the district
court did not abuse its discretion by excluding it).
28
See United States v. Flitcraft, 803 F.2d 184, 186 (5th
Cir. 1986) (holding that the district court did not abuse its
discretion in excluding documents in a similar tax-protester
case, in which the defendants claimed to have relied on case law
and documents in making their decision not to pay federal income
taxes, because the documents were needlessly cumulative and
confusing to the jury, as the documents suggested that the law
was unsettled).
15
not for the truth of the matter asserted but to show the
defendant’s belief in the “redemption process,”29 the district court
exercised appropriate discretion when it decided that the probative
value of the manuals did not outweigh their potential to confuse
the jury.
C. Sentencing Challenges
Samuel and Saul raise objections to their sentences under the
Supreme Court’s recent opinion in United States v. Booker,30
contending that the district court increased their sentences beyond
that authorized by the jury verdict. They argue that the court
based their sentences on facts not proved to a jury or admitted by
defendants, and did so while proceeding under a mandatory
Guidelines regime, thereby violating defendants’ Sixth Amendment
rights. Additionally, Saul argues that the district court based
its decisions to depart upwardly on impermissible factors. And,
both defendants insist that the sentences imposed were
unreasonable.
1. Standard of Review
Saul did not raise any Sixth Amendment argument or challenge
the Sentencing Guidelines before the district court, so we review
29
United States v. Cantu, 876 F.2d 1134, 1137 (5th Cir.
1989) (holding that statements made by out-of-court declarant
were not hearsay, because the defendant offered them as proof of
his own state of mind, not as proof of the truth of the matter
asserted).
30
125 S. Ct. 738 (2005).
16
his Booker claim for plain error only.31 Samuel did preserve this
objection before the district court, so we review his Sixth
Amendment challenge for harmless error.32
Additionally, Booker directs us to review upward departures
for reasonableness as required by the pre-2003 Prosecutorial
Remedies and Tools Against the Exploitation of Children Today Act
(the “PROTECT Act”).33 As we explained in United States v. Smith,
this circuit used an abuse-of-discretion standard to review the
reasonableness of upward departures under the pre-2003 PROTECT
Act.34 Accordingly, we now evaluate the district court’s decision
to depart upwardly and the extent of that departure for abuse of
discretion.35
2. Saul Saldana
a. Sixth Amendment Challenge: Plain Error Review
It is clear, after Booker, that the district court committed
plain error when it departed upward on Saul’s sentence and did so
31
United States v. Mares, 402 F.3d 511, 520 (5th Cir.
2005).
32
See id. at 520 n.9.
33
125 S. Ct at 765.
34
-- F.3d --, 2005 WL 1663784, at *4 and n.24 (5th Cir.
July 18, 2005).
35
United States v. Simkanin, 420 F.3d 397, 415 (5th Cir.
2005) (noting that “the appropriate standard of review to employ
when reviewing a district court’s decision to depart upwardly
from the Guidelines range... [is] the abuse-of-discretion
standard”); Smith, 417 F.3d at 492 (reviewing the extent of the
upward departure for an abuse of discretion).
17
based on facts not admitted by the defendant or found by the jury.36
We hold, however, that Saul cannot show that such error affected
his substantial rights. To meet the plain error standard, a
defendant must show that a district court’s error affected the
outcome of the proceedings.37 Saul cannot meet his burden to show
that, if the district court had sentenced him under an advisory
rather than mandatory sentencing guidelines system, it would have
sentenced him differently. There is simply nothing in the record
to indicate that the court would have decided differently had it
not been bound by the Guidelines.38 We therefore hold Saul’s Booker
argument to be unavailing.
b. Upward Departure
Saul also challenges the district court’s upward departure,
arguing that the court based its decision on impermissible factors
and that the extent of the departure was unreasonable. Saul’s Pre-
Sentence Investigative Report (“PSR”) grouped all thirteen counts
together in accordance with the grouping requirements in United
36
See Mares, 402 F.3d at 520.
37
Id. at 521.
38
Id. In fact, we doubt whether a defendant could ever
overcome plain error review of a claimed Booker violation in
cases where the district court has upwardly departed. See United
States v. Lee, 399 F.3d 864, 867 (7th Cir. 2005) (“By moving up,
the judge evinces not only a belief that discretion exists but
also a disposition to exercise it adversely to the accused. Such
a judge, knowing that Booker affords yet more latitude, might
impose a sentence higher still; knowledge that freedom has
increased would not induce the judge to reduce the sentence.”).
18
States Sentencing Guidelines (“U.S.S.G.”) § 3D1.2. His base
offense level for this group was calculated to be eight, including
a two-level enhancement for obstruction of justice,39 under U.S.S.G.
§ 2T1.1.40 The 1998 edition of the Guidelines was used to avoid ex
post facto problems; his criminal history category was I. Together
with his base offense level, this yielded a prison sentence range
of zero to six months, probation of one to five years, and
supervised release for Count one of one year and counts two through
thirteen of two to three years. The district court ordered that
the sentences for counts one through four run consecutively, for a
total term of imprisonment of 24 months, with the remaining counts
to be served concurrently; three years supervised release; and a
$1300 mandatory fee assessment.41
39
The PSR recommended, and the trial court adopted, a two-
level enhancement under U.S.S.G. § 3C1.1 n. 4(e) because he
willfully failed to appear as ordered for a judicial proceeding,
specifically, his trial.
40
U.S. Sentencing Guideline § 2T1.1 (1998) provides a base
offense level for crimes involving tax evasion, willful failure
to file returns, supply information or pay tax; or filing
fraudulent or false returns, statements, or other documents.
41
The district court’s decision to run sentences on four of
Saul’s 13 counts of conviction is an upward departure, as Saul’s
sentence of twenty-four months’ imprisonment exceeded his total
punishment authorized under the Guidelines, which was six months.
A sentence exceeding the total punishment permitted under the
Sentencing Guidelines, defined as the defendant’s combined base
offense level correlated with his appropriate criminal history
category, includes an upward departure. United States v.
Martinez, 274 F.3d 897, 903-04 (5th Cir. 2001). After it
considers the factors listed under 18 U.S.C. § 3553(a), a
district court has discretion under 18 U.S.C. § 3584 to depart
upwardly by running sentences consecutively, even when U.S.S.G. §
19
Prior to Booker, a district court could upwardly depart under
the Guidelines if “there exists an aggravating. . . circumstance of
a kind, or to a degree, not adequately taken into consideration by
the Sentencing Commission in formulating the Guidelines.”42 The
Sentencing Commission intended for sentencing courts “to treat each
guideline as carving out a ‘heartland,’ a set of typical cases
embodying the conduct that each guideline describes.”43 If the
court considered a factor in its decision to depart that the
Guidelines either discouraged or had already included in some other
way, the court could upwardly depart only “if the factor is present
to an exceptional degree or in some other way makes the case
5G1.2 would otherwise mandate that the sentences run
concurrently. See United States v. Candelario-Cajero, 134 F.3d
1246, 1249 (5th Cir. 1998). Section 3553(a) requires
consideration of, inter alia, the nature and circumstances of the
offense and the history and characteristics of the defendant; the
need for the sentence to reflect the seriousness of the offense,
promote respect for the law, and provide just punishment; the
kinds of sentences and sentence ranges available under the
guidelines; the Sentencing Guidelines’ policy statements; and the
need to avoid unwanted sentence disparities among defendants with
similar records found guilty of similar conduct.
42
18 U.S.C. § 3553(b), excised by Booker, 125 S. Ct. at
764; Koon v. United States, 518 U.S. 81, 95-96 (1996); U.S.
Sentencing Guideline § 5K2.0 (1998).
43
Koon, 518 U.S. at 93 (quoting U.S. Sentencing Guidelines
Ch. 1 Pt. A(4), The Guideline’s Resolution of Major Issues
(1998)); see also United States v. Winters, 174 F.3d 478, 482
(5th Cir. 1999) (“The Guidelines Manual explains that it intends
each guideline to create a heartland of typical cases” and
departure is appropriate only if conduct in a given case differs
significantly from the norm and such that the crime is “outside
this heartland.”).
20
different from the ordinary case where the factor is present.”44
Although district courts are no longer bound by the
Guidelines, they still must consider them, including the
appropriate sentencing range, and state reasons for imposing a
sentence outside that range.45 A sentencing court does not abuse
its discretion in deciding to upwardly depart when its reasons for
doing so (1) advance the objectives set forth in 18 U.S.C. §
3553(a)(2); (2) are authorized by 18 U.S.C. § 3553(b); and (3) are
justified by the facts of the case.46 A district court’s reasons
supporting its choice of a sentence must be included, with some
specificity, in its written order of judgment or commitment under
18 U.S.C. § 3553(c).47
At Saul’s sentencing hearing, the district court orally
explained its reasons for departing as the harm done by the
defendant, his disrespect for the law, the fear he caused, and the
number of times that he committed the crime. The court went on to
say that Saul was “involved in legal processes in which he caused
44
Koon, 518 U.S. at 96.
45
Booker, 125 S. Ct. at 767; Mares, 402 F.3d at 519.
46
18 U.S.C. § 3742(j) (1). Although Booker excised §
3553(b), the directive to consider the heartland of an offense
and enumerate particular reasons for a departure from the
sentencing range lives on in U.S. Sentencing Guideline § 5K2.0
and, implicitly, in § 3553(a)’s requirement that the court
consider the guidelines and the appropriate sentencing range and
§ 3553(c)’s requirement that the court enumerate reasons for
sentencing without the range.
47
Mares, 402 F.3d at 519 n.8.
21
the stop of those legal processes, not just on one occasion, but on
13 separate occasions.” In contrast, the court’s written statement
of reasons said only that it upwardly departed because the
Sentencing Commission had not adequately addressed the harm caused
when the offense occurs on multiple counts, and because Saul, by
his conduct, caused “legal stoppage.”48
Saul argues that a district court may not upwardly depart
based on the number of counts of conviction, because the Guidelines
specify a method for calculating an offense level for defendants
convicted on several counts related to similar activity.49 He
cites United States v. Miller, in which we held that “[t]he mere
fact that defendant's commission of crimes in separate
jurisdictions exposed him to separate prosecutions (and thus
possibly a longer sentence) is not, in our view, a sufficient
reason for a departure.”50
48
We have expressed doubt whether, under 18 U.S.C. § 3742,
we could consider a district court’s spoken reasons for making an
upward departure when they differ from the court’s written
reasons, at least with respect to the reasonableness of the
extent of the departure. United States v. Andrews, 390 F.3d 840,
847 (5th Cir. 2004). Booker excised subsection (e) of § 3742,
however, the requirement that a district court write down its
reason for imposing a departure from the guidelines range remains
binding. 18 U.S.C. § 3553(c). In this case, the district court’s
written reasons for its departure, though terse, do not
contradict its spoken reasons.
49
See U.S. Sentencing Guidelines § 3(D), intro., which
provides that “convictions on multiple counts do not result in a
sentence enhancement unless they represent additional conduct not
otherwise accounted for by the guidelines.”
50
See 903 F.2d 341, 350-51 (5th Cir. 1990).
22
Although, in Chapters 3 and 5, the Sentencing Guidelines do
address how district courts should sentence defendants convicted
for multiple counts, the comments to U.S.S.G. § 3D1.4 also make
clear that district courts may depart from those requirements in
unusual circumstances: “Situations in which there will be
inadequate scope for ensuring appropriate additional punishment for
the additional crimes are likely to be unusual and can be handled
by departure from the guidelines.” Further, the Guidelines’ Policy
Statement explains the multiple counts grouping requirement as
necessary to prevent arbitrary casting of a single transaction into
several counts to produce a longer sentence: A defendant who
engages in conduct or a single course of conduct that causes
several harms does not necessarily merit punishment proportionately
increased with each additional harm.51 The Policy Statement
describes two situations in which grouping is appropriate and
describes how the offense level may be fairly calculated: “(1) when
the conduct involves fungible items (e.g., separate drug
transactions or thefts of money), the amounts are added and the
guidelines apply to the total amount; (2) when nonfungible harms
are involved, the offense level for the most serious count is
increased (according to a diminishing scale) to reflect the
existence of other counts of conviction.”52
51
U.S. Sentencing Guidelines Ch. 1 P. A(4) (1998).
52
Id.
23
In the ordinary case, a district court may adjust an offense
level upward under U.S.S.G. §§ 3D1.3 and 3D1.4 for multiple count
convictions, to account for the greater harm; however, no such
adjustment was available in this case.53 An upward departure based
on multiple counts in this case does not, moreover, subvert the
Guidelines’ policy reasons for the grouping rules, as such a result
does not “arbitrarily” cast a single transaction into several
counts. When a defendant like Saul has been convicted of as many
as thirteen separate counts, and the grouping rules of the
Guidelines do not permit for any sort of enhancement in a
defendant’s punishment based on the harm or number of counts
included, the district court does not abuse its discretion when it
upwardly departs on this basis.54
Saul also argues that the Guidelines have already taken into
account the possibility that filing false tax forms could cause
aggravation and harm. U.S.S.G. § 2T1.1 —— the section that
53
U.S.S.G. § 3D1.3(b), applicable to counts grouped
together pursuant to § 3D1.2(d), which includes counts of
conviction under § 2T1.1, provides that the offense level
corresponds to the aggregated quantity determined in accordance
with Chapter 2 (which includes aggregation for the amount of loss
caused by the defendant) and Chapter 3 (which permits adjustments
for a number of reasons that do not apply in this case). U.S.
Sentencing Guideline § 3D1.3(b) (1998).
54
In fact, the Sixth Circuit has affirmed a district
court’s decision to depart upwardly based on the number of false
8300 forms filed by defendants in a case very similar to the
instant one, in which the defendants had been convicted of
sending approximately a dozen forms each to the IRS and
government officials. United States v. Anderson, 353 F.3d 490,
509 (6th Cir. 2003).
24
contains the base offense level for § 7212 and under which Saul was
sentenced —— is primarily concerned with tax evasion. It relies
on the loss or intended loss caused by a defendant’s conduct to
establish the true base offense level to reflect the amount of
harm.55 U.S.S.G. § 2T1.1 plainly does not account for harm caused
by a tax protestor who not only impedes the IRS’s ability to
function but also uses the IRS as an “attack dog” to harass other
individuals; neither does it anticipate that the tax protestor will
file false forms in an attempt to stop legal proceedings against
him.56 Saul’s victims suffered a greater degree of harm than is
typically involved in a false tax form case, so this factor was an
appropriate one for the sentencer to consider under § 5K2.0.
We conclude that the district court did not abuse its
discretion in deciding to upwardly depart because its orally stated
reasons address § 3553(a)’s directive to reflect the seriousness of
the offense, to promote respect for the law, and to provide just
punishment for the offense and represent aggravating circumstances
55
See U.S. Sentencing Guidelines § 2T1.1, Background (1998)
(“This guideline relies most heavily on the amount of loss that
was the object of the offense.”)
56
See United States v. Heckman, 30 F.3d 738, 741-42 (6th
Cir. 1994) (upholding upward departure after defendant was
sentenced in conformity with U.S.S.G. § 2T1.3 (later consolidated
with § 2T1.1), which contemplated tax evasion, because the
defendant also attempted to impede the IRS in its collection of
revenue from other taxpayers and its measurement of taxpayer
compliance, and to harass individuals whose accounts the IRS
scrutinized).
25
that take Saul’s conviction “out of the heartland” of § 2T1.1.57
The district court properly relied on evidence presented at trial
and in the PSR in making its factual determinations, namely, the
number of counts and the fact that Saul’s behavior caused greater
aggravation and harm than the typical defendant sentenced under
U.S.S.G. § 2T1.1.58 Accordingly, the decision to upwardly depart
was reasonable.
We still must determine, however, whether the degree or extent
of the departure or the sentence as a whole was unreasonable.59 The
district court did not rely on any impermissible factors in making
its decision to depart upwardly, and we have held that, in such
cases, we owe great deference to the sentence imposed by the
district court.60 Furthermore, the Supreme Court instructs us to
measure the reasonableness of a sentence against the policy and
justifications for the Guidelines as set forth in 18 U.S.C. §
57
See Simkanin, 420 F.3d at 415-18 (reviewing the district
court’s decision to upwardly depart for an abuse of discretion).
58
See United States v. Lara, 975 F.2d 1120, 1124 (5th Cir.
1992) (“A sentencing court may rely upon relevant information
contained in the PSI [Pre-Sentence Investigation Report] in
fashioning its upward departure.”) (citation omitted).
59
Booker v. United States, 125 S. Ct. 738, 765 (2005);
Smith, 417 F.3d at 488; id. at 490-92 (reviewing the sentence as
a whole to determine whether it was reasonable).
60
Mares, 402 F.3d at 520 (“If the sentencing judge follows
the principles set forth above, commits no legal error in the
procedure followed in arriving at the sentence, and gives
appropriate reasons for her sentence, we will give great
deference to that sentence.”).
26
3553(a).61
At the outset, we note that, by running four six-month
sentences consecutively, the district court quadrupled the maximum
sentence allowable for Saul under the Guidelines, the equivalent of
a seven-level departure. “While the mere fact that a departure
sentence exceeds by several times the guideline maximum is of no
independent consequence in determining whether the sentence is
reasonable, it may indicate the unreasonableness of the departure
viewed against the court's justification for that departure.”62
Even though, in this case, we concur with the district court’s
decision to depart above the Guidelines, we conclude that the
extent of that departure approaches the outer boundary of
reasonableness.
First, the degree of departure appears to overstate the harm
produced by Saul’s acts. Several victims testified that they were
inconvenienced by receipt of these forms, and some feared an audit
by the IRS, yet none testified to experiencing any significant
disruption to their daily lives or to having any audits actually
initiated.63 As for the harm done to the IRS, i.e., having to
61
Booker, 125 S. Ct. at 765-66.
62
United States v. Campbell, 878 F.2d 164, 166 (5th Cir.
1989) (citation omitted).
63
In comparison, when the Sixth Circuit approved a district
court’s upward departure on a defendant’s sentence after the
defendant filed false 1096 and 1099 forms for the purpose of
harassing other individuals, as well as an outrageous refund
claim for himself, the aggravation caused to the individuals was
27
investigate the accusations contained in the false forms sent by
Saul, no evidence suggests that the number of hours spent by the
agency on these probes exceeded the amount of time that it would
normally spend investigating false forms. Further, Saul sent a
total of only twelve forms, affecting a total of only six
individuals. Although the number of counts in this case might also
have justified a greater sentence, we are not convinced that this
number justifies multiplying a sentence to a point four times
beyond the maximum under the Guidelines range.
We also note that, even though the district court was required
to consider whether “the need to avoid unwarranted sentence
disparities among defendants with similar records who have been
found guilty of similar conduct” before upwardly departing,64 it did
not do so.65 Saul cites numerous cases in which individuals
convicted of sending false tax forms to the IRS under
circumstances similar to those in his case, and in many instances
sending far more forms and causing more trouble to the IRS and to
far worse. United States v. Heckman, 30 F.3d 738, 741-42 (6th
Cir. 1994). For example, victims testified that the defendant had
demanded payment from them based on false deeds of trust and
other liens against their property and that they had been forced
to hire lawyers or accountants to defend themselves against the
IRS; additionally, the defendant had sent the victims harassing
letters. Id. at 742.
64
18 U.S.C. § 3553(a)(6).
65
See also 28 U.S.C. § 991(b)(1)(B) (stating that one
purpose of the U.S. Sentencing Commission is to avoid unwarranted
sentencing disparities among defendants with similar records
found guilty of similar criminal conduct).
28
their victims, received shorter sentences.66
Despite our misgivings about the length of this sentence,
however, we are unwilling to hold that it is unreasonable. The
sentence does overstate the degree of harm, does not appear to
advance the goal of uniformity, and does over-compensate for the
number of counts, but each of these was a permissible reason for
the district court to depart from the Guidelines’ range and, taken
together, would likely justify a sentence at least within striking
distance of that imposed by the district court. Given the
deference we owe to the district court that has properly applied
the Guidelines, we decline to hold the degree of the departure
unreasonable. Accordingly, the district court did not abuse its
discretion in imposing Saul’s sentence, and we therefore affirm it.
3. Samuel Saldana
a. Sixth Amendment Challenge
It is true that Samuel preserved his Booker challenge to the
district court’s decision to depart upward by citing Blakely at his
sentencing hearing, mandating that we review his challenge for
66
See, e.g., United States v. Yagow, 953 F.2d 423 (8th Cir.
1992) (sentencing the defendant to six months’ imprisonment for
sending 180 false 1099 forms to more than 100 individuals and
institutions); United States v. Kuball, 976 F.2d 529, 530 (9th
Cir. 1992) (sentencing the defendant to six months’ imprisonment
for filing false 1099 information returns to eight persons and a
false 1040 that fraudulently claimed a refund of over $600,000);
United States v. Citrowske, 951 F.2d 899, 900 (8th Cir. 1991)
(sentencing the defendant to four months’ imprisonment for filing
more than fifty false 1099 tax return forms).
29
harmless error.67 This case presents one of those rare
circumstances, however, in which we hold that a defendant who has
preserved Booker error is nonetheless not entitled to vacatur and
remand of his sentence on this ground. As we stated in Mares, we
will ordinarily vacate a defendant’s sentence when (1) he has
preserved an objection to a Booker Sixth Amendment violation, and
(2) we find error that is not harmless.68 Rule 52(a) of the Federal
Rules of Criminal Procedure provides that a harmless error is “any
error, defect, irregularity or variance that does not affect
substantial rights” and such error “must be disregarded.” Stated
differently, before vacating a defendant’s sentence, we must
determine whether such an error is harmless beyond a reasonable
doubt.69 Under our harmless error analysis, the government bears
the burden of persuading us, beyond a reasonable doubt, that an
67
After the trial court had sentenced Samuel, his attorney
stated: “I just need to make sure for purposes of the record that
the Court is taking recognition of Mr. Saldana’s objection to the
departure under the guidelines under the reliance on Blakely.”
Although this objection is less than crystal clear, we hold that
a defendant’s invocation of Blakely without further explanation
is sufficient to preserve Booker error on appeal. See United
States v. Dowling, 403 F.3d 1242, 1245-47 (11th Cir. 2005)
(holding that, in order to preserve a Booker objection, a
defendant must make a “constitutional” objection at sentencing,
which may include citing Apprendi, the Sixth Amendment, or the
defendant’s right to have facts found by a jury instead of a
judge).
68
Mares, 402 F.3d at 520 n.9.
69
Neder v. United States, 527 U.S. 1, 15 (1999).
30
error did not affect the defendant’s substantial rights.70
When the district court departed upwardly under the
Guidelines, based on facts not found by a jury or admitted by the
defendant, it plainly erred.71 Yet in this instance the government
has demonstrated that this error is harmless.72 During Samuel’s
sentencing hearing, the judge stated that, in the event that the
Booker decision should hold the federal sentencing guidelines
unconstitutional, the court would sentence him to the same amount
of imprisonment and supervised release permitted under the
substantive statutes. For an error to have affected substantial
rights, “it means that the error must have been prejudicial: [i]t
70
Id.; United States v. Olano, 507 U.S. 725, 734 (1993)
(noting that, unlike harmless error analysis, in which the
government bears the burden of showing no prejudice to the
defendant’s rights, plain error analysis places this burden on
the defendant); United States v. Wheeler, 322 F.3d 823, 828 (5th
Cir. 2003) (“Unlike the harmless error analysis, it is the
defendant rather than the Government who bears the burden of
persuasion with respect to prejudice.”) (citing Olano, 507 U.S.
at 734).
71
See Mares, 402 F.3d at 520-21.
72
Neither party included any arguments or specifics
relating to this Booker issue in their briefs, as Booker had not
yet been decided at the time of this appeal. Instead, Samuel
stated merely that he wished to preserve any arguments he might
make challenging the Guidelines under Blakely v. Washington, 124
S. Ct. 2531 (2004), and the government noted that such arguments
were foreclosed by our decision in United States v. Pineiro, 377
F.3d 464 (5th Cir. 2004), vacated and remanded by Pineiro v.
United States, 125 S. ct.. 1003 (2005). At oral argument,
however, the government argued that any Booker error was harmless
for the reasons that we adopt in this opinion.
31
must have affected the outcome of the district court proceedings.”73
It is obvious to us that the error committed by the district court
in this case did not affect the outcome of the sentencing
proceedings, so any error committed by the district court was
harmless.74
b. Upward Departure75
The district court sentenced Samuel in the same manner that it
sentenced Saul, the only difference being that Samuel’s criminal
history category was II,76 yielding a greater Guidelines range of
four to ten months on the grouped counts. Count one, violation of
§ 7212, carried a statutory maximum of three years imprisonment and
one year supervised release; counts two through seventeen,
violations of § 1001(a)(3), each carried a statutory maximum of
five years imprisonment and three years supervised release. As
noted above, the district court sentenced Samuel to the statutory
maximum of five years imprisonment.
The district court departed upwardly on Samuel’s sentence
73
United States v. Olano, 507 U.S. 725, 734 (1993).
74
See United States v. Thompson, 403 F.3d 533, 535-36 (8th
Cir. 2005) (holding any Booker error to be harmless because the
district court expressly sentenced the defendant to an alternate,
statutory-based sentence in the event that Booker ruled the
Guidelines unconstitutional).
75
We will not repeat our discussion of the upward departure
analysis here.
76
Samuel also failed to appear for jury selection at his
trial and received a two-level enhancement for obstruction of
justice under U.S.S.G § 3C1.1 n.4(e) (1998).
32
because it found that there were aggravating circumstances of a
kind and to a degree that were not adequately considered by the
Sentencing Commission. Specifically, the district court explained
in its written reasons that Samuel filed the false 8300s as a
weapon against numerous public officials for daring to perform
their public duties. As noted above, however, the Guideline under
which Samuel was sentenced focuses primarily on filing false
returns or claiming fraudulent deductions —— not on using the IRS
as a personal “attack dog.” Moreover, the district court found
that the Guideline did not adequately take the number of victims
into account —— in Samuel’s case, there were seven. The court
emphasized at the sentencing hearing, and confirmed in writing,
that Samuel had committed the crime on sixteen separate occasions,
and ultimately concluded that without “an adequate sentence, the
Defendant will not be deterred and will continue his unlawful
activities.”
The district court’s reasons for its upward departure were not
unreasonable —— indeed, deterrence, promoting respect for the law,
and the seriousness of the offense were factors that the court was
required to consider under 18 U.S.C. § 3553(a). And, Samuel does
not challenge the validity of the court’s reasons for its upward
departure. Rather, he contends that the extent of the departure is
unreasonable, insisting that his sentence of 60 months’
imprisonment is disproportionately long in comparison to sentences
imposed in similar cases of defendants using fraudulent IRS forms
33
to harass individuals.77 He also urges that the facts of his case
do not support a sentence of five years, which is six times longer
than the maximum sentence under the applicable sentencing range on
any count of conviction if all are served concurrently.
At the outset, we again acknowledge that the extent of the
departure here comes close to the outer limits of reasonableness.
First, the degree of the departure overstates the harm done to the
victims. Specifically, most victims testified to experiencing only
some annoyance and trepidation at the thought of an IRS
investigation, and their greatest inconveniences were contacting
the IRS or FBI and filling out forms. Second, Samuel’s sentence is
significantly longer than those imposed in similar “tax protestor”
cases. We note, however, that —— as in Saul’s case —— the district
77
See infra note 66; see also United States v. Bowman, 173
F.3d 595, 596-97 (6th Cir. 1999) (upholding defendant’s sentence
of thirty-three months’ imprisonment for sending 59 fraudulent
1099 and 1096 forms to individuals, institutions, and the IRS in
retaliation for suits, foreclosures, and other judgments brought
against him); United States v. Heckman, 30 F.3d 738, 743 (6th
Cir. 1994) (upholding twenty-four month sentence, including a
fourteen-month upward departure, when defendant filed at least
seventy-nine false 1099 Forms in an attempt to harass victims,
demanded payment from victims for false liens he had filed
against their property, and caused the victims to hire attorneys
and accountants to defend themselves against the IRS); United
States v. Hanson, 2 F.3d 942, 944-46 (9th Cir. 1993) (vacating
and remanding defendant’s 12-month sentence for filing four false
1096 and 1099 forms claiming that he had received $46,996,669.41
from three FHA officials and $31,331,112.94 from two other FHA
employees because the proper Guidelines range was one to six
months, not twelve months); United States v. Parsons, 967 F.2d
452, 453 (10th Cir. 1992) (noting that defendant who had filed
thirteen false 1099 forms and made demands to recipients that
they pay him the amounts specified in the forms had received six
months’ incarceration).
34
court’s reasons for upwardly departing are valid and, taken
together, clearly justify a sentence of the length of the one
actually imposed by the district court. Given the deference we owe
to the district court, we will not overturn the extent of the
upward departure here as unreasonable.
III. CONCLUSION
We affirm both defendants’ convictions: (1) The district
court did not err when it instructed the jury on the meaning of
“corruptly;” (2) both defendants’ convictions are supported by
sufficient evidence; and (3) the court did not abuse its discretion
when it refused to admit the tax manuals into evidence at Saul’s
trial, as these manuals were cumulative, confusing, and had little
probative value. We also affirm both defendants’ sentences:
Neither has successfully stated a claim under United States v.
Booker, and the district court did not abuse its discretion in any
aspect of its sentencing methodology. The Saldana brothers’
convictions and sentences are, in all respects,
AFFIRMED.
35
United States v. Saldana
Combined Opinion