United States v. Alease Marie Lewis

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 10, 2007
No. 06-16423 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 06-00171-CR-01-RWS-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALEASE MARIE LEWIS,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(April 10, 2007)

Before BIRCH, HULL and PRYOR, Circuit Judges.

PER CURIAM:

Alease Lewis appeals her 18-month sentence imposed after she pled guilty
to thirteen counts of preparing false tax returns, in violation of 26

U.S.C. § 7206(2). On appeal, Lewis argues that her sentence is unreasonable in

light of the factors in 18 U.S.C. § 3553(a). After review, we affirm.

I. BACKGROUND

Lewis worked as a tax preparer at Ace Tax Service during the 2001 filing

season. Between 2002 and 2004, Lewis operated her own tax preparation business.

Lewis attracted new clients by promising bigger refunds.

In May 2002, the Atlanta Fraud Detection Center opened an administrative

investigation after it noticed a pattern of inflated Schedule A deductions in returns

prepared by Lewis. In August 2002, Internal Revenue Service (“IRS”)

investigators interviewed Lewis regarding suspected income tax fraud. A

subsequent examination of 28 of the approximately 1500 tax returns Lewis

prepared between 2002 and 2004 revealed $88,568.43 in lost tax revenue.

Lewis pled guilty to thirteen counts of willfully assisting taxpayers in the

preparation and presentation to the IRS of tax forms that contained false tax

amounts, which were calculated based on entries that Lewis knew to be false.

Over half of the thirteen tax returns that formed the basis of Lewis’s indictment

were prepared after Lewis’s 2002 interview with the IRS.

The presentence investigation report (“PSI”) recommended a total offense

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level of 15 and a criminal history category of I, resulting in an advisory guidelines

range of 18 to 24 months’ imprisonment. Lewis filed a sentencing memorandum,

arguing that a term of probation would be a reasonable sentence. Lewis pointed to

the fact that she had no criminal history, was the sole provider for her two minor

children, and had not received any portion of the refunds she obtained. Lewis also

noted that the government had chosen not to prosecute the taxpayers involved.

At the sentencing hearing, Lewis did not object to the facts or the guidelines

calculations in the PSI.1 The district court therefore adopted the PSI’s findings and

advisory guidelines range.

Lewis argued for a sentence of probation. Lewis again pointed out that she

had no prior criminal record, which distinguished her from the average offender in

a criminal history category of I. The district court interrupted and expressed

concern that Lewis “got a warning shot” when she was visited by the IRS in 2002,

yet “continued to do this.” The district court explained that it was reluctant to

impose a sentence below the guidelines range because Lewis had engaged in “overt

illegal conduct” by “using her own children on other people’s returns.” Lewis

responded that the district court should also consider that Lewis was a veteran and

had “pulled herself up from nothing” to graduate from college, was raising two

1
Lewis’s only objection to the PSI was to argue that there was no basis for an upward
variance from the advisory guidelines range.

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children as a single mother, and was active in her church and the community.

Lewis contended that a term of probation would achieve the aims of punishment

without separating Lewis from her children.

After considering the parties’ arguments, the district court stated that Lewis

was “to be commended for what [she has] done in terms of improving [her] lot in

life,” and acknowledged the “terribly difficult decision” the court faced as to

whether to separate a family. The district court concluded, however, that Lewis

had “engaged in clearly illegal conduct that [she] knew was illegal,” “over a period

of time,” even after she was warned that the IRS was examining her. The district

court explained that it “[has] a duty under the law to apply the law impartially and

especially as between people who commit similar crimes under similar

circumstances” and observed that Lewis’s offenses were “not the least egregious of

these types of crimes” the district court had seen. Accordingly, the district court

sentenced Lewis to an 18-month sentence, at the low end of the advisory guidelines

range.

Lewis filed this appeal.

II. DISCUSSION

After United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), a district

court, in determining a reasonable sentence, must consider the correctly calculated

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advisory guidelines range and the 18 U.S.C. § 3553(a) factors. United States v.

Talley, 431 F.3d 784, 786 (11th Cir. 2005). Although the district court must

consider the § 3553(a) factors, “nothing in Booker or elsewhere requires the

district court to state on the record that it has explicitly considered each of the §

3553(a) factors or to discuss each of the § 3553(a) factors.” United States v. Scott,

426 F.3d 1324, 1329 (11th Cir. 2005). Instead, indications in the record that the

district court considered facts and circumstances falling within § 3553(a)’s factors

will suffice. Id. at 1329-30; Talley, 431 F.3d at 786.

We review a defendant’s ultimate sentence for reasonableness in light of the

§ 3553(a) factors. United States v. Williams, 435 F.3d 1350, 1353 (11th Cir.

2006). This “[r]eview for reasonableness is deferential,” and “when the district

court imposes a sentence within the advisory Guidelines range, we ordinarily will

expect that choice to be a reasonable one.” Talley, 431 F.3d at 788. “[T]he party

who challenges the sentence bears the burden of establishing that the sentence is

unreasonable in the light of both [the] record and the factors in section 3553(a).”

Id.

Here, we conclude that Lewis has not shown that her 18-month sentence is

unreasonable. Lewis does not dispute the district court’s advisory guidelines

calculations. Furthermore, although the district court did not, and was not required

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to, discuss each § 3553(a) factor, the record clearly indicates that the district court

considered several facts and circumstances falling within § 3553(a)’s factors,

including (1) Lewis’s history and characteristics, such as her efforts to escape dire

conditions as a child and graduate from college and her status as a single mother;

18 U.S.C. § 3553(a)(1); (2) the nature and circumstances of Lewis’s offenses, such

as the fact that Lewis continued to produce fraudulent tax returns after the IRS

informed her that it was monitoring her activities, id.; and (3) the need to avoid

unwarranted sentencing disparities, by recognizing that Lewis’s case was not the

least egregious, id. § 3553(a)(6). Under the facts and circumstances of this case,

Lewis has failed to show that her 18-month sentence, at the low end of the advisory

guidelines range, is unreasonable.

AFFIRMED.