In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐2984
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
MARCEL A. WALTON,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division
No. 15‐cr‐723 — Thomas M. Durkin, Judge.
____________________
ARGUED OCTOBER 2, 2018 — DECIDED OCTOBER 25, 2018
____________________
Before BAUER, KANNE, and SCUDDER, Circuit Judges.
PER CURIAM. Marcel Walton, a “Grand Sheik” of the Moor‐
ish Science Temple of America in Chicago, stole more than $3
million from the Internal Revenue Service (“IRS”) by filing
and assisting others in filing fraudulent tax returns. He pled
guilty to mail fraud, see 18 U.S.C. § 1341, and was sentenced
to 68 months’ imprisonment—below the advisory guidelines
2 No. 17‐2984
range. On appeal, Walton asserts that the district court vio‐
lated his due‐process rights by relying on inaccurate infor‐
mation in determining the appropriate sentence. Because
Walton does not show that any information was false, nor that
the district court relied on any inaccuracies, we affirm.
I. BACKGROUND
The Moorish Temple is a religious organization that be‐
lieves Moors are the rightful owners of North America. As a
“Grand Sheik,” Walton preached that the United States gov‐
ernment occupies Moorish land and now owes its members
payment, which they could acquire by filing specialized tax
returns. Many people filed fraudulent tax returns at Walton’s
urging. He took a percentage of the refunds some of his fol‐
lowers received.
Walton pled guilty to mail fraud. At the close of the
change‐of‐plea hearing, the judge asked the government to
provide information about defendants who had been prose‐
cuted for similar schemes—specifically, the actual and in‐
tended‐loss amounts and the ultimate sentences. The govern‐
ment’s submission (included as an attachment to the Presen‐
tence Investigation Report (“PSR”) and updated via email be‐
fore sentencing) shows that the other defendants received
sentences ranging from probation to 28 months’ imprison‐
ment. Meanwhile, the probation officer calculated a guide‐
lines imprisonment range of 70 to 87 months for Walton. Wal‐
ton had a criminal history category of I and the offense level
was set at 27, based on an agreed‐upon intended‐loss amount
of $16,391,161.
At the sentencing hearing, neither party contested the
guidelines calculation, including the use of $16 million as the
No. 17‐2984 3
intended‐loss amount,1 but they disputed the appropriate
sentence. The government argued that Walton’s leadership
role—specifically, instructing at least nine people to prepare,
or preparing for them, phony tax returns—distinguished him
from the defendants listed in the chart and warranted a higher
sentence within the guidelines range. The government also
emphasized that in some cases the victims were “vulnerable”
because there were elderly, homeless, destitute, or caring for
sick relatives.
Walton asked for a 12‐month sentence, based in part on
his personal circumstances, including his age, his history of
employment, his lack of criminal history, and his ready guilty
plea. And although he admitted that “he helped others do it,”
he emphasized that he did not invent the scheme. He further
argued that of all the defendants on the government’s chart—
which his counsel deemed “helpful”—“very, very, very few
people have ever been sentenced within the guidelines.”
Moreover, Walton said, a higher sentence would result in un‐
warranted sentencing disparities because he learned about
the scheme from a defendant in another case, who had re‐
ceived a 24‐month sentence.
The district court imposed a 68‐month sentence. The judge
emphasized Walton’s exploitation of vulnerable followers,
1 This includes the losses directly attributable to Walton and to nine
named followers interviewed by federal agents who reported acting on
his instructions. At least five of them—those who successfully obtained
tax refunds—were also prosecuted. The government maintained at sen‐
tencing that the scheme involved an intended loss that was much greater
than $16 million and involved more than nine people, but elected to rely
upon the intended losses attributable to the people who reported that Wal‐
ton had recruited them.
4 No. 17‐2984
some of whom were elderly or homeless, and many of whom
believed his religious rhetoric and had not committed crimes
before meeting him. The judge also confirmed that no one on
the government’s chart received a leader‐organizer enhance‐
ment, as Walton had. The “most aggravating fact” was that
Walton was responsible for “law‐abiding people who got into
this and ended up … going to jail” just so he could get a “piece
of the action.” Regarding the need to avoid unwarranted sen‐
tencing disparities, the district court explained that the “key
distinguishing feature” was that the others, with two possible
exceptions, “weren’t leaders,” whereas many people, some of
whom were prosecuted, filed phony returns “because of Mr.
Walton.”
To the defendant’s vague protest that he “didn’t neces‐
sarily have access to the factual backgrounds concerning all
similar cases … including the ones on [the government’s]
chart,” the judge responded that there was no dispute that
this defendant, Walton, lured at least nine people into crimi‐
nal activity. Further, considering potential sentencing dispar‐
ities, the district judge disregarded the chart as useless, be‐
cause the intended losses for all the listed defendants were
not comparable. Finally, after announcing the sentence, the
judge asked Walton if he wished to address “anything else,”
and Walton said he did not.
II. ANALYSIS
On appeal, Walton argues that the district court erred at
sentencing by relying on untested representations about Wal‐
ton’s leadership role and uncorroborated sentencing data
about other tax‐fraud prosecutions. If a defendant has pre‐
served his or her objection, we review procedural sentencing
errors de novo. United States v. Young, 863 F.3d 685, 688 (7th
No. 17‐2984 5
Cir. 2017). But Walton’s conduct at sentencing shows a forfei‐
ture: he relied on some of the information he now challenges
and only vaguely protested that he “didn’t necessarily have
access to the factual backgrounds concerning all similar
cases,” after the judge stated that Walton’s leader‐status dis‐
tinguished him from those prosecuted in similar schemes.
And Walton failed to challenge at all the government’s state‐
ments regarding the vulnerability of his co‐schemers. There‐
fore, we review for plain error. See United States v. Butler, 777
F.3d 382, 386–87 (7th Cir. 2015).
The Fifth Amendment guarantees the right to be sen‐
tenced based on accurate information. See United States
v. Tucker, 404 U.S. 443, 448–49 (1972); United States v. Adams,
879 F.3d 826, 829 (7th Cir. 2018). To establish a violation, a de‐
fendant must show both that the information is false and that
the court relied on it. United States v. Musgraves, 831 F.3d 454,
469 (7th Cir. 2016). Walton can show neither, and so there is
no error, let alone one that is “plain.”
Walton begins by listing four “unproven, disputed, and
unsupported facts”: (1) he preyed on vulnerable followers; (2)
he was a “leader” in contrast to “all others” who have been
prosecuted for similar crimes and that he led other people into
his scheme; (3) he profited from a 10% “tithe” from followers
who got unwarranted tax refunds; and (4) the $16 million in‐
tended loss far exceeded the stakes in other, similar cases.
Walton says that he has “since verified” that many of the facts
the government stated were “false and unreliable,” by exam‐
ining public records in other prosecutions. The remainder of
these facts he dismisses as “unsupported.”
6 No. 17‐2984
It appears that, in part, Walton argues that these state‐
ments are “unsupported” because the “record on appeal” ex‐
cludes the documents before the district court that could have
supported them, such as the parties’ sentencing memoranda,
the probation officer’s sentencing recommendation, and the
government’s version. But there are no documents in the ap‐
pellate record that should not be there. And even if the record
on appeal did exclude the documents that Walton disputes,
the uncontested record provided a sufficient basis for the dis‐
trict court to make the findings Walton challenges, so this ar‐
gument lacks merit.
Walton contends first that the government mischaracter‐
ized information related to his leadership role in persuading
others to join the scheme. He asserts that the district court
could not rely upon the existence of the purported followers
who received, or tried to obtain, fraudulent refunds at his urg‐
ing, because none of them testified, and the record did not
contain their written statements or other evidence. But, as
Walton admits, the Rules of Evidence do not apply at sentenc‐
ing hearings. As long as information “has sufficient indicia of
reliability to support its probable accuracy,” United States
v. Sunmola, 887 F.3d 830, 839 (7th Cir. 2018) (quoting United
States v. Vivit, 214 F.3d 908, 916 (7th Cir. 2000)), it does not
require full corroboration, United States v. Sandidge, 784 F.3d
1055, 1062 (7th Cir. 2015).
Here, uncontested documents like the plea agreement and
the PSR, which the district court adopted after allowing Wal‐
ton the opportunity to object, support the district judge’s find‐
ing that Walton led others into the scheme. To support its ar‐
gument that Walton was a leader, based upon his enlistment
No. 17‐2984 7
of followers, the government said: “those were the individu‐
als where we’d had law enforcement agents go out, get those
statements, and/or put these individuals in grand jury.” Also,
the PSR proffered that “the IRS interviewed … individuals
and those individuals identified the defendant as the one who
prepared, or caused the preparation of their false 1041 forms.”
Similarly, to support the existence of a 10% kickback to
Walton, which the government called a “tithe,” the govern‐
ment pointed to the plea agreement, in which Walton agreed
that “various individuals such as temple member Christopher
Mietus, who filed three tax returns by Mr. Walton, received
$900,000, and then gave Mr. Walton $90,000.” The PSR also
states that Dawn Shannon “received a $300,000 refund check,
of which she gave $35,000 … to the defendant,” and that
Ronald Taylor “received a $300,000 refund check” and “gave
$35,000 to the defendant and another $4,400 to the … Temple,
which were both deposited by the defendant.”
Walton does nothing to challenge the accuracy of this in‐
formation. In rebuttal, he offers only his own vague specula‐
tion that other leaders must have been prosecuted: he reasons
that other ring leaders must be listed on the sentencing chart
that the government provided simply by virtue of the sheer
number of false tax returns submitted as part of similar
schemes. Such naked assertions do not meet Walton’s burden
to show that the district court relied on inaccurate facts. See
United States v. Musa, 946 F.2d 1297, 1307 (7th Cir. 1991).
Furthermore, Walton did not contest the leader/organizer
enhancement, and the judge focused specifically on the fol‐
lowers whom Walton himself led into the scheme. When the
judge relies on the PSR, “[t]he defendant must do more than
merely deny the facts in the report; instead, he must provide
8 No. 17‐2984
some evidence calling into question the accuracy or reliability
of the information in the PSR.” United States v. Harmon, 721
F.3d 877, 889 (7th Cir. 2013). Here, Walton does not show any
inaccuracy, and he has not demonstrated that the PSR and the
factual basis in the plea agreement are unreliable; he simply
asks for more proof than the government is required to give.
The district court properly considered the documents under‐
lying the government’s assertions, see Adams, 879 F.3d at 829,
and they support the truth of the information provided at sen‐
tencing.
Walton next takes issue with what he deems the unsup‐
ported proposition that the $16 million intended loss at‐
tributed to him (without dispute) far exceeds what the de‐
fendants in other cases were held responsible for. Again, he
did not complain about the comparison chart before or at the
sentencing hearing, at which he deemed it “helpful” in light
of the government’s superior ability to round up the infor‐
mation. Moreover, Walton’s post‐sentencing research does
nothing to support his point that the district court used inac‐
curate information: he lists certain defendants as to whom he
thinks the intended loss amounts were understated, but even
the non‐inflated numbers he posits do not approach the $16
million figure to which he admitted. In any event, when it
came to the intended‐loss figures, the district court ultimately
rejected the chart’s relevance to Walton’s sentencing, because
the government had not identified a defendant similarly situ‐
ated to Walton in that regard. The court looked at Walton in‐
dividually.
Next, whether the district court relied on statements about
Walton’s co‐schemers’ vulnerability is a closer call, but even
if it did, the court would not have violated Walton’s due‐
No. 17‐2984 9
process rights by doing so. First, the record shows that Walton
used his religious clout to persuade his followers to commit
crimes: he recruited through the Temple and justified the
fraud with reference to the federal government’s debt to the
Moors. The district court, therefore, reasonably inferred that
Walton leveraged his authority and followers’ beliefs. See
United States v. Anaya, 32 F.3d 308, 313 (7th Cir. 1994).
And though the government said for the first time at sen‐
tencing that some of Walton’s co‐schemers were elderly or
homeless, it had argued before the hearing, in its Sentencing
Memorandum, that he preyed on his followers’ vulnerabili‐
ties. Furthermore, the PSR named several of Walton’s follow‐
ers, so he could have anticipated the government’s argu‐
ments. And yet again, Walton does not show that some of the
followers he recruited were not vulnerable, so he cannot
demonstrate that this information is untrue. He cannot baldly
state the information is unreliable without providing a reason
to call it into question.
III. CONCLUSION
Because Walton’s due‐process claim is meritless, the dis‐
trict court’s judgment is AFFIRMED.