United States v. Hassebrock

In the

United States Court of Appeals
For the Seventh Circuit

No. 10-3296

U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.

O RVIL D UANE H ASSEBROCK,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:09-CR-30080-MJR-1—Michael J. Reagan, Judge.

A RGUED S EPTEMBER 15, 2011—D ECIDED N OVEMBER 22, 2011

Before F LAUM, M ANION, and SYKES, Circuit Judges.
F LAUM, Circuit Judge. Orvil Duane Hassebrock was
convicted by a jury of tax evasion, a felony offense under
26 U.S.C. § 7201, and failure to file a tax return for the
2004 tax year, a misdemeanor offense under 26 U.S.C.
§ 7203. He appeals the district court’s denial of his
motions for a judgment of acquittal and for a new trial.
Hassebrock also raises several arguments for the first
time on appeal, relating to his right to a speedy trial, the
2 No. 10-3296

charges in his indictment, and the absence of a lesser
included offense instruction. Finally, he challenges the
sentence imposed by the district court.
Regarding the various arguments that Hassebrock
presents for our review, we find nearly all of them waived
or devoid of merit. With respect to the narrow issue of
restitution, we conclude that, although the district court
possessed the statutory authority to impose restitution
as a condition of supervised release, we are unclear as
to whether it acted pursuant to this authority in its
order of restitution. For the following reasons, we affirm
in part, vacate in part, and remand for further proceedings.

I. Background
Hassebrock earned income in the 2004 tax year from the
proceeds of his oil business, including a $2.5 million
settlement, but he neither filed a 2004 federal tax return
nor requested a filing extension on or before the April 15,
2005 deadline. Hassebrock was indicted on charges of
willfully attempting to evade and defeat the payment
of taxes in the approximate amount of $593,557 in viola-
tion of 26 U.S.C. § 7201 (Count I) and willfully failing to
file an income tax return in violation of 26 U.S.C. § 7203
(Count II). He pleaded not guilty on July 7, 2009.
At trial, Hassebrock’s accountant testified that
Hassebrock had asked him on February 16, 2005 to calcu-
late his 2004 federal tax liability. The accountant prepared
two draft returns, estimating Hassebrock’s tax liability
inclusive and exclusive of the settlement proceeds, but
No. 10-3296 3

Hassebrock did not request that his accountant
take any further action by April 15, 2005. Although
Hassebrock introduced evidence of an extension
request dated August 12, 2005, the government disputed
its validity and further argued that the crime was com-
pleted as soon as Hassebrock failed to file his return
on April 15, 2005.
On April 29, 2010, a jury found Hassebrock guilty on
both counts. In a special verdict form, completed at the
request of Hassebrock’s counsel, the jury determined
that Hassebrock had willfully failed to file his 2004
return on or before April 15, 2005 but that he had not
willfully failed to file it on or before October 15, 2005.
Hassebrock then filed a motion for judgment of acquittal
and a motion for a new trial. The district court denied
both of these motions.
On September 30, 2010, the district court sentenced
Hassebrock to 32 months’ imprisonment for Count I and
a consecutive 4 months’ imprisonment for Count II. The
court also ordered 36 months of supervised release for
Count I and 12 months of supervised release for Count II,
to run concurrently. Finally, the court imposed an assess-
ment of $125.00, an incarceration fine of $74,000.00, and
restitution in the amount of $997,582.19.

II. Discussion
On appeal and represented by new counsel, Hassebrock
argues that his convictions should be vacated because
his statutory and constitutional right to a speedy trial was
4 No. 10-3296

violated. He also contends that he is entitled to a new
trial because his indictment was duplicitous or, in the
alternative, multiplicitous. Similarly, he maintains that
he was deprived of due process because the indictment
required a lesser included offense instruction, which he
did not receive. Hassebrock further argues that the
district court erred in denying his motions for acquittal
and a new trial because insufficient evidence supported
the convictions. Finally, Hassebrock challenges the pro-
cedure, substance, and statutory authority for his sen-
tence. We address each argument in turn.

A. Hassebrock’s Right to a Speedy Trial
Hassebrock argues that his right to a speedy trial, as
guaranteed by the Speedy Trial Act and by the Sixth
Amendment of the United States Constitution, has been
violated by the 286-day period between his first appear-
ance and the start of his trial. He concedes that he is
raising these arguments for the first time in this appeal,
yet he urges us to view his statutory argument as
merely forfeited rather than waived. Hassebrock further
contends that the Speedy Trial Act waivers that he exe-
cuted are invalid. We do not agree, and we conclude
that Hassebrock waived his statutory right to a speedy
trial and that his constitutional right, though not waived,
was not violated. Most of the delays stemmed from
repeated requests for continuances by Hassebrock’s own
counsel and almost certainly strengthened the counsel’s
ability to mount a sound defense for Hassebrock.
No. 10-3296 5

1. Speedy Trial Act
Pursuant to the Speedy Trial Act, criminal trials must
commence within 70 days of the indictment or the de-
fendant’s initial appearance, whichever is later. 18 U.S.C.
§ 3161(c)(1). The Act enumerates delays that shall be
excluded from the 70-day clock, recognizing that certain
delays leading up to trial are justifiable. Id. § 3161(h); see
also United States v. O’Connor, 656 F.3d 630, 635-36 (7th
Cir. 2011). Hassebrock alleges that 286 non-excludable
days elapsed between his initial appearance on July 7,
2009 and the commencement of trial on April 23, 2010.
We need not engage in the process of determining which
days during this period are excludable, however, because
we find that Hassebrock waived his statutory right by
failing to move to dismiss the indictment prior to trial.
The remedy for a violation of the Act’s 70-day limit is
dismissal of the indictment, but the defendant must move
for dismissal of the indictment prior to trial. 18 U.S.C.
§ 3162(a)(2); see also United States v. Broadnax, 536 F.3d
695, 699 (7th Cir. 2008). In unambiguous terms, the
Speedy Trial Act states that the “[f]ailure of the defendant
to move for dismissal prior to trial . . . shall constitute
a waiver of the right to dismissal.” 18 U.S.C. § 3162(a)(2).
Hassebrock concedes that he did not raise this objec-
tion in a motion to dismiss prior to trial but asks us to
view his claim as merely forfeited, which would entitle
him to plain error review of his claim. The express terms
of the Speedy Trial Act do not permit this interpretation.
See id.; O’Connor, 656 F.3d at 636-37; United States v.
Gearhart, 576 F.3d 459, 462 & n.2 (7th Cir. 2009) (observing
6 No. 10-3296

that “every circuit to consider the issue has held that the
failure to move for dismissal under the act constitutes
a waiver, not merely a forfeiture”). The general rule
that we review claims not asserted in the district court
for plain error pursuant to Federal Rule of Criminal
Procedure 52(b) does not apply to claims involving the
Speedy Trial Act because the Act sets forth waiver as the
sole consequence for failing to assert the claim below.
See O’Connor, 656 F.3d at 637.
Hassebrock makes three flawed attempts to demon-
strate that we may (and should) review his claim for
plain error. First, he points out that we stated in United
States v. Morgan that “we have reviewed a defendant’s
statutory speedy trial claim for plain error even though
it was never presented to the district court.” 384 F.3d
439, 442 (7th Cir. 2004). But this statement from Morgan
served only to summarize the inconsistent approach
that we had previously taken before articulating the
clear holding that failure to assert a right under this Act
constitutes waiver and not forfeiture. Id. at 442-43. In
fact, we anticipated the very argument that Hassebrock
now advances by announcing in Morgan that we do not
view these earlier cases as “contrary precedent” because
they erroneously overlooked § 3162(a)(2). Id. at 443.
Hassebrock next argues that we should reevaluate
our waiver decisions in Morgan and Gearhart in light of
the Supreme Court’s decisions in Zedner v. United States,
547 U.S. 489 (2006), Bloate v. United States, 130 S. Ct. 1345
(2010), and United States v. Tinklenberg, 131 S. Ct. 2007
(2011). But Zedner focused primarily on the propriety of
No. 10-3296 7

prospective waivers under the Speedy Trial Act, see 547
U.S. at 500-03, and the requirement that an express
finding accompany a district court’s grant of an ends-of-
justice continuance, see id. at 503-09. Bloate and Tinklen-
berg addressed only narrow questions concerning which
delays are excluded from the Act’s 70-day limit.
See Tinklenberg, 131 S. Ct. at 2010-16; Bloate, 130 S. Ct at
1349, 1351-53. Had Hassebrock moved to dismiss his
indictment, these cases might have become relevant to
the determination of whether his rights under the Act
were violated. But not one of these cases makes any
assertion that calls into question the well-established
conclusion that failure to move to dismiss constitutes
waiver under the Act. In fact, our decision in O’Connor,
decided after Zedner and Bloate, suggests just the
opposite—we found Zedner’s emphasis on the de-
fendant’s “role of spotting violations of the Act” to
support an expansion of the application of waiver to a
defendant who actually moved to dismiss on one
ground but not on others. O’Connor, 656 F.3d at 637-38
(quoting Zedner, 547 U.S. at 502-03).
Finally, Hassebrock argues that the written waivers of
his rights under the Speedy Trial Act are invalid.
Hassebrock filed motions to continue on July 10, 2009
and on December 17, 2009. The first motion requested a
continuance of at least six months because Hassebrock’s
new counsel had not yet reviewed discovery, needed
additional time to prepare the defense, and had another
upcoming trial. The second motion requested a continu-
ance of six weeks based on a possible scheduling con-
flict. Hassebrock now contends that the waivers affixed
8 No. 10-3296

to those motions are invalid based on the Supreme
Court’s holding regarding prospective waivers in Zedner.
Zedner held that a defendant may not prospectively
waive his right to a speedy trial, see 547 U.S. at 500, but
Zedner is distinguishable from this case on several
grounds. First, the defendant in Zedner had waived his
speedy trial rights “for all time” and had waived his
right to move to dismiss the indictment for failure to
hold a speedy trial, id. at 493-94, while Hassebrock con-
sented only to six-month and six-week waivers and
retained his right to move to dismiss the indictment, a
right which he did not attempt to exercise until the
present appeal. Second, the judge in Zedner had solicited
the waiver from the defendant, see id., whereas Hassebrock
consented to this waiver to help counsel prepare his
defense.
Finally, Zedner distinguished between prospective
waivers (i.e., waivers made expressly by the defendant
prior to trial that disclaim any rights under the Speedy
Trial Act) and retrospective waivers (i.e., waivers made
unintentionally by the defendant by failing to move to
dismiss based on a speedy trial violation prior trial). Id.
at 502 (“[T]here is no reason to think that Congress
wanted to treat prospective and retrospective waivers
similarly. . . . The sort of retrospective waiver allowed
by § 3162(a)(2) does not pose a comparable danger
because the prosecution and the court cannot know
until the trial actually starts or the guilty plea is actually
entered whether the defendant will forgo moving to
dismiss.”). The defendant in Zedner had actually moved
No. 10-3296 9

to dismiss his indictment for violating the Act, but the
district court denied his motion based on his prospec-
tive waivers. In contrast, there is no question that
Hassebrock has retrospectively waived his rights. The
Zedner Court reaffirmed a defendant’s ability to retro-
spectively waive his rights under the Act. See id. Because
we conclude that Hassebrock validly waived his rights
retrospectively by failing to move to dismiss, we need
not decide whether Hassebrock’s express waiver consti-
tuted a prospective waiver, whether all express waivers
are invalid under Zedner, and whether the attachment of
an express waiver to an otherwise valid motion to con-
tinue invalidates the motion.1

1
Courts in other Circuits have considered whether any pros-
pective waivers are valid under Zedner and have reached
opposing conclusions. Compare United States v. Williamson, 319
F. App’x 734, 737 n.1 (10th Cir. 2009) (upholding defendant’s
prospective waiver and finding that Zedner bars defendants
only from opting out of the Act “entirely” and waiving rights
“for all time”), and United States v. Marquez, 602 F. Supp. 2d 285,
287-89 (D. Mass. 2009) (distinguishing Zedner as involving
a “blanket prospective waiver” and finding that holding in
Zedner, the language of the Speedy Trial Act, and the plain
meaning of “continuance” all contemplate the continued
validity of prospective continuances), with United States v.
Turner, 602 F.3d 778, 783 (6th Cir. 2010) (holding that the Act
“does not allow defendants to waive a deadline prospectively”
and citing Zedner), and United States v. Taylor, 497 F.3d 673, 676-
77 (D.C. Cir. 2007) (finding that the defendant’s prospective
waiver “had no effect” due to Zedner).
10 No. 10-3296

2. Sixth Amendment Speedy Trial Claim
Hassebrock mentions in his opening brief that the
Speedy Trial Act is a codification of the defendant’s right
to a speedy trial under the Sixth Amendment. See U.S.
C ONST. amend. VI. That is his sole reference to the con-
stitutional right to a speedy trial. Nowhere does
Hassebrock allege directly that his Sixth Amendment
right was violated. He does not present any arguments
in support of this claim or apply the four-factor test
from United States v. Gearhart for determining whether
a constitutional speedy trial violation occurred.
We question whether Hassebrock intended to allege
a violation of his Sixth Amendment right to a speedy
trial. Even assuming that he did assert this violation, we
find the argument decidedly underdeveloped and there-
fore waived. See Trentadue v. Redmon, 619 F.3d 648, 654
(7th Cir. 2010); United States v. Berkowitz, 927 F.2d 1376,
1384 (7th Cir. 1991) (“We repeatedly have made clear
that perfunctory and undeveloped arguments, and argu-
ments that are unsupported by pertinent authority, are
waived (even where those arguments raise constitu-
tional issues).”). A defendant’s statutory right and consti-
tutional right to a speedy trial are not identical, and thus
we cannot simply transfer his arguments in support of
a violation of the statute to arguments in support of a
violation of the Constitution. See O’Connor, 656 F.3d at
643 (“[W]hile related, the constitutional and statutory
rights are distinct.”); Gearhart, 576 F.3d at 462.
We do note that the government, rather than argue
that Hassebrock waived his Sixth Amendment claim,
No. 10-3296 11

applied the Gearhart test in its brief and argued that the
test dictates a finding in its favor. We have previously
found that a party can waive a waiver argument by
failing to raise it. See, e.g., Qiu Ping Li v. Holder, 612 F.3d
603, 604 (7th Cir. 2010); United States v. Moore, 563 F.3d
583, 585 (7th Cir. 2009). Nevertheless, we have also recog-
nized that the waiver doctrine is “designed for our own
protection as much as that of an opposing party, and
therefore need not be asserted by a party for us to
invoke it.” Freeman United Coal Mining Co. v. Office of
Workers’ Comp. Programs, Benefits Review, 957 F.2d 302, 305
(7th Cir. 1992). Although we have no obligation to
consider Hassebrock’s Sixth Amendment claim, we can
easily address and reject the claim on the merits.
This constitutional claim is reviewed for plain error due
to Hassebrock’s failure to raise this argument below.
See O’Connor, 656 F.3d at 643; Gearhart, 576 F.3d at 462-63.
“We evaluate constitutional speedy trial challenges
based on a four-part test: (1) whether the delay was
uncommonly long, (2) whether the government or the
defendant is more to blame for the delay, (3) whether the
defendant asserted his right to a speedy trial in due
course and (4) whether the defendant suffered prejudice
as a result of the delay.” Gearhart, 576 F.3d at 463 (citing
Doggett v. United States, 505 U.S. 647, 651-52 (1992), and
United States v. White, 443 F.3d 582, 589-90 (7th Cir. 2006)).
The first factor of the analysis looks at the length of the
delay. This factor “is not so much a factor as it is a thresh-
old requirement.” United States v. Loera, 565 F.3d 406,
412 (7th Cir. 2009). We have also stated that delays ap-
12 No. 10-3296

proaching one year are “presumptively prejudicial.”
White, 443 F.3d at 589-90. The delay in Hassebrock’s
case lasted for at most 286 days. A delay of 9.5 months
does not seem to be “approaching” this one-year thresh-
old. Because we have not set a clear cutoff, however, we
briefly turn to the remaining factors.
The second factor looks to whether the government or
the defendant is more responsible for the delay. In this
case, the government did not request any continuances.
The defendant, on the other hand, requested two con-
tinuances. The defendant is held responsible for delay
that results when the defendant seeks and obtains a
continuance. See Gearhart, 576 F.3d at 463. The first
motion requested that the trial date be continued for at
least six months for various reasons related to giving
defense counsel the opportunity to prepare. The second
motion identified a possible scheduling conflict, though
the record is not clear as to whether the defendant or
the district court was the source of the conflict. The gov-
ernment acknowledges that the final month of delay
was due to the court’s scheduling conflict. “[W]hile
delays resulting from defense counsel’s need to prepare
are attributable to the defendant, delays resulting from a
trial court’s schedule are ultimately attributed to the
government, but weighted less heavily.” United States v.
Hills, 618 F.3d 619, 630 (7th Cir. 2010) (citations omitted).
Therefore, Hassebrock bears more of the responsibility
than the government for the delay in starting the trial.
The third factor looks to whether the defendant timely
asserted his right to a speedy trial. As stated above,
No. 10-3296 13

Hassebrock did not do so because he did not raise this
claim at any time while he was awaiting trial. This factor
weighs in favor of the government.
The fourth factor examines whether the defendant
suffered any prejudice as a result of the delay. Hassebrock
has not made any claim that the delay has prejudiced
him. “We examine prejudice resulting from a delay in
trial in light of the interests that the Sixth Amendment
seeks to protect.” Hills, 618 F.3d at 632. The Sixth Amend-
ment right to a speedy trial seeks to “(i) to prevent oppres-
sive pretrial incarceration; (ii) to minimize anxiety and
concern of the accused; and (iii) to limit the possibility
that defense will be impaired.” White, 443 F.3d at 591
(internal quotation marks omitted). Hassebrock was not
incarcerated, has not alleged any anxiety that he
suffered, and has not pointed to any ways in which his
defense was impaired.
Even granting Hassebrock the benefit of reaching the
merits on a claim that was barely presented and insuffi-
ciently developed, we find no support under Gearhart for
a Sixth Amendment violation caused by the pretrial delay.

B. Hassebrock’s Indictment
Hassebrock argues for the first time on appeal that
his indictment was duplicitous or, in the alternative,
multiplicitous. An indictment that charges two or more
distinct offenses within a single count is duplicitous.
United States v. Smith, 26 F.3d 739, 753 (7th Cir. 1993). An
indictment that charges a single offense in more than
14 No. 10-3296

one count is multiplicitous. United States v. Allender, 62
F.3d 909, 912 (7th Cir. 1995).
Because Hassebrock did not raise these objections
before trial, we review these arguments under plain
error review, if at all. See United States v. Conley, 291 F.3d
464, 469-70 (7th Cir. 2002) (multiplicitous claim); United
States v. Magana, 118 F.3d 1173, 1189 (7th Cir. 1997) (duplic-
itous claim). Though we may review these waived argu-
ments, we have no obligation to do so. See Magana, 118
F.3d at 1189.
Here, we deem these challenges to the indictment
waived, thereby requiring no review, because Hasse-
brock fails to provide relevant evidence to support his
claims and fails to provide any explanation for not
raising these claims before trial (or in any of his post-trial
motions). See United States v. Simone, 931 F.2d 1186 (7th
Cir. 1991); United States v. Petitjean, 883 F.2d 1341, 1344
(7th Cir. 1989).
Even if we had decided to reach the merits of
Hassebrock’s duplicity and multiplicity claims, the
result would not change because Hassebrock has not
established that any plain error occurred. Under plain
error review, we must determine: “(1) that error
occurred; (2) that the error was plain; and (3) that the
error affected the defendant’s substantial rights.” United
States v. Luepke, 495 F.3d 443, 448 (7th Cir. 2007).
With respect to the claim of duplicity, Hassebrock
argues that the jury was confused as to whether he could
be found guilty of willfully failing to file his tax return
No. 10-3296 15

on or before April 15, 2005, as charged in Count II, if he
was granted a filing extension by the IRS on August 12,
2005. Hassebrock contends that certain jury instructions
added to this confusion. Although the jury convicted
Hassebrock of Count II, the Special Verdict form in-
dicated that the jury found him guilty of willfully failing
to file his tax return on or before April 15, 2005 but not
guilty of willfully failing to file his tax return on or
before October 15, 2005. Although the jury’s verdict
may suggest some confusion over the nature of Count II,
the charging language in the indictment does not evince
a clear error of a duplicitous nature. Hassebrock was
entitled to present evidence that he received a filing
extension but that does not influence the propriety of
the charge. See United States v. Ming, 466 F.2d 1000, 1005
(7th Cir. 1972) (holding that a late filing of a tax return
is “immaterial on the issue of willfulness in a Section 7203
prosecution”).
With respect to the claim of multiplicity, we have
previously established that 26 U.S.C. § 7201 and 26 U.S.C.
§ 7203 contain separate offenses and that a conviction
under both does not violate Double Jeopardy. See United
States v. Foster, 789 F.2d 457, 460 (7th Cir. 1986) (“All
guides to legislative intent suggest that Congress meant
§§ 7201 and 7203 to constitute separate offenses and that
[defendant’s] convictions for both offenses do not violate
the double jeopardy clause.”). We have subsequently
recognized this rule as “well settled in this Circuit.” United
States v. Becker, 965 F.2d 383, 390-91 (7th Cir. 1992). In
Becker, we explained that § 7201 (but not § 7203) requires
16 No. 10-3296

an affirmative act; conversely, § 7203 (but not § 7201)
requires a failure to file a return. Id.
Hassebrock argues that Foster and Becker fail to recog-
nize that the Supreme Court stated in Sansone v. United
States, 380 U.S. 343, 351 (1965), that § 7203 is a lesser
included offense of § 7201 where a prosecution for § 7201
involves “a disputed issue of fact as to the existence
of the requisite affirmative commission in addition to the
[§] 7203 omission.” Although the defendant in Sansone did
not raise a multiplicity challenge to his indictment, the
Court’s conclusion regarding the lesser included offense
instruction bears on this type of challenge as well. In
cases in which the Court deems § 7203 to be a lesser
included offense of § 7201, an indictment that charges
the defendant with both offenses (based on the same act
of omission) may be multiplicitous. Although we ap-
preciate the possible tension generated by the position
that we announced in Foster, we are not inclined to recon-
sider that position here where our review is solely for
plain error. Hassebrock waived his multiplicity argu-
ment by failing to present it before trial and failed to
persuasively argue that his case falls into the category
of cases identified by Sansone.

C. Lesser Included Offense Instruction
Hassebrock’s next claim is similar to his multiplicity
claim and contends that the district court erred by failing
to give a lesser included offense instruction. He concedes
that nothing in the record indicates that his counsel
requested this instruction at trial. Because Hassebrock
No. 10-3296 17

did not request this specific instruction below, we review
only for plain error. United States v. Johnson, 655 F.3d 594,
605 (7th Cir. 2011); United States v. Cooper, 942 F.2d 1200,
1206 (7th Cir. 1991). The initial step in plain error review
is to determine whether an error occurred. See Luepke,
495 F.3d at 448. It was not an error to decline to give a
lesser included offense instruction because we have
repeatedly reaffirmed Foster’s holding that § 7203’s
charge of willful failure to file is not a lesser included
offense of § 7201’s charge of tax evasion. See Becker, 965
F.2d at 390-91 (finding this issue of law to be “well settled
in this Circuit”); United States v. Defazio, 899 F.2d 626, 636
(7th Cir. 1990) (finding the lesser included offense argu-
ment to be “foreclosed in this circuit” by Foster).
Hassebrock urges us to reconsider our position given
Sansone’s dicta and the contrary position taken by other
circuits. See, e.g., United States v. Helmsley, 941 F.2d 71, 99
(2d Cir. 1991); United States v. DeTar, 832 F.2d 1110 (9th
Cir. 1987). Hassebrock failed to preserve this argument
for de novo review due to his failure to request the
lesser included offense instruction at trial. See United
States v. Ye, 588 F.3d 411 (7th Cir. 2009). Moreover, ample
evidence in the record suggests that Hassebrock engaged
in affirmative acts of tax evasion beyond a mere failure
to file, thereby rendering a lesser included offense in-
struction inappropriate even under Sansone. We there-
fore decline this invitation to revisit our conclusion in
Foster and its progeny that § 7203 is a separate offense
and not a lesser included offense of § 7201.
18 No. 10-3296

D. Sufficiency of the Evidence
Unlike his previous arguments, Hassebrock has pre-
served his sufficiency of the evidence argument for our
review by filing timely motions for a judgment of
acquittal and for a new trial.

1. Denial of Hassebrock’s Motion for a Judgment
of Acquittal
We review de novo the district court’s decision to deny
Hassebrock’s motion for a judgment of acquittal. United
States v. Mandel, 647 F.3d 710, 717 (7th Cir. 2011). When
evaluating a defendant’s sufficiency-of-the-evidence
argument, “[w]e consider the evidence in the light most
favorable to the prosecution, making all reasonable infer-
ences in its favor, and affirm the conviction so long as
any rational trier of fact could have found the defendant
to have committed the essential elements of the crime.”
United States v. Paneras, 222 F.3d 406, 410 (7th Cir. 2000)
(quoting United States v. Masten, 170 F.3d 790, 794 (7th
Cir. 1999)). We will overturn the guilty verdict “only
when the record contains no evidence, regardless of how
it is weighed, from which the jury could find guilt
beyond a reasonable doubt.” United States v. Huddleston,
593 F.3d 596, 601 (7th Cir. 2010). Thus, a defendant who
moves for a judgment of acquittal “faces a nearly insur-
mountable hurdle.” United States v. Morris, 576 F.3d 661,
665-66 (7th Cir. 2009) (quoting United States v. Pulido, 69
F.3d 192, 205 (7th Cir. 1995)).
No. 10-3296 19

a. Count I: 26 U.S.C. § 7201
To sustain the conviction under § 7201, the evidence
must show that: (1) a tax deficiency existed, (2) the defen-
dant acted willfully, and (3) the defendant took an af-
firmative step to elude or defeat the payment of taxes.
United State v. Beall, 970 F.2d 343, 345 (7th Cir. 1992).
Hassebrock challenges only the second and third ele-
ments. The crux of his argument is that his 2004 tax
return was not due on April 15, 2005, and therefore his
failure to file by that date does not constitute an affirma-
tive act. During cross-examination, IRS Agent Richard
Dutzel admitted that Hassebrock’s extension was filed
in August 2005 and that the IRS “allowed” it. Hassebrock
thus argues that the government is estopped from
arguing that he failed to file by April 15, 2005.
We agree, as did the district court, with the govern-
ment’s three-pronged response to Hassebrock’s claim.
First, Hassebrock had a legal obligation to file on or
before April 15, 2005, this obligation was embodied in
the offenses charged, and Hassebrock did not satisfy
this obligation. Second, a reasonable juror could have
reached the conclusion that Hassebrock’s extension was
not truly approved by the IRS. The signature lines for the
taxpayer and the IRS director were blank, and there is
no evidence that Hassebrock received the form from the
IRS. Third, the government presented evidence of other
affirmative acts taken by Hassebrock, negating the sig-
nificance of establishing failure to file as the affirmative
act in support of liability under § 7201. For example,
Dan Goggin, one of Hassebrock’s attorneys, testified
20 No. 10-3296

that Hassebrock visited his office to set up trust accounts
that were not in his own name. Evidence adduced at
trial demonstrated that Hassebrock placed the funds from
the settlement into those accounts, that he nevertheless
used the accounts for his personal use, and that the indi-
viduals named on the accounts hardly used the accounts
at all. Hassebrock denies that these actions are proof of
tax evasion, but an act does not need to conclusively
establish that it was taken in furtherance of the tax
evasion to qualify as an affirmative act. The jury was
permitted to infer intent from circumstantial evidence.
United States v. King, 126 F.3d 987, 993 (7th Cir. 1997) (“Tax
evasion cases ‘simply require that there be some
evidence from which a jury could infer an intent to
mislead or conceal beyond mere failure to pay assessed
taxes; it is for the jury to determine, as a matter of fact,
whether the affirmative act was undertaken, in part, to
conceal funds from or mislead the government.’ ” (quoting
United States v. Voigt, 89 F.3d 1050, 1090 (3d Cir. 1996))).
We further agree with the district court’s determina-
tion that sufficient evidence was introduced at trial to
support a conclusion that Hassebrock acted willfully.
Sam Phillips, Hassebrock’s accountant, testified that
Hassebrock had come to his office to inquire about the
tax liability of the settlement funds. Phillips prepared two
sample returns, one that included the settlement funds
and one that did not. The district court concluded, and
we concur, that this evidence adequately demonstrates
Hassebrock’s willfulness because he knew of the higher
tax liability associated with the settlement.
No. 10-3296 21

Thus, even if we assume arguendo that Hassebrock did
receive a filing extension, his conviction on Count I still
rests on sufficient evidence.

b. Count II: 26 U.S.C. § 7203
To sustain a conviction under § 7203, the evidence must
show that the defendant: (1) was required to file a
return, (2) failed to file a return, and (3) acted willfully in
failing to file. Beall, 970 F.2d at 347. The government must
prove that the defendant failed to file “willfully or pur-
posefully, as distinguished from inadvertently, negli-
gently, or mistakenly.” United States v. Matosky, 421 F.2d
410, 413 (7th Cir. 1970). Hassebrock argues that unrebutted
evidence shows that he received an extension, that he
was not required to file his 2004 taxes until October 15,
2005, and that the government failed to prove that he
acted willfully in failing to file his return by April 15, 2005.
The evidence regarding the granting of an extension is
not as strong as Hassebrock claims. In addition to
missing signatures of both Hassebrock and the IRS direc-
tor, there was no evidence that Hassebrock established
“undue hardship,” which is a prerequisite for approving
extension requests made after April 15. Further, although
Agent Dutzel testified that it appeared that the extension
request was “allowed,” he lacked direct knowledge of
the issue and made this comment in the context of an
unrelated issue. Viewing the evidence in the light most
favorable to the prosecution, as it must, the district court
determined that the evidence indicated only that “the
extension has not been blocked from being processed
22 No. 10-3296

and filed, not that the extension had been granted” and
that a “reasonable juror could have concluded that
Hassebrock’s application was not approved.”
Hassebrock argues on appeal that the district court
failed to explain how the jury could have found that the
extension was not approved and yet indicated in the
special verdict form that Hassebrock did not willfully
fail to file an individual income tax return by October 15,
2005. While we admit that this is slightly puzzling, it
is clear that the totality of the evidence satisfies the re-
quirements for proving a § 7203 violation. We have
held that “late filing and late tax payment are immaterial
on the issue of willfulness in a Section 7203 prosecution.”
United States v. Sawyer, 607 F.2d 1190, 1193 (7th Cir. 1979)
(quoting Ming, 466 F.2d at 1005). In line with this prece-
dent, the district court stated that Hassebrock’s “crime
was completed at 12:00:01 on April 16, 2005.” In other
words, regardless of whether the IRS approved the
August 12, 2005 request for an extension, the IRS did not
approve any extension on or before April 15, 2005, the
deadline for filing his 2004 tax return. Phillips testified
that Hassebrock did not ask him to file an extension
during their February 2005 meeting, did not ask him to
prepare a 2004 return during their May 2005 meeting, and
only casually asked him to file a late return for 2004
“[p]robably in 2006 sometime.” Therefore, given the
strong evidence that Hassebrock did not receive an ex-
tension prior to April 15, 2005 (and may not have
received an extension at all), the district court correctly
determined that a jury could have reasonably con-
cluded that Hassebrock violated § 7203.
No. 10-3296 23

2. Denial of Hassebrock’s Motion for a New Trial
The district court also denied Hassebrock’s motion for
a new trial. A motion for a new trial that is based on the
sufficiency of the evidence should be granted “only if the
verdict is against the manifest weight of the evidence.”
Riemer v. Ill. Dep’t of Transp., 148 F.3d 800, 806 (7th Cir.
1998). We review the denial of a motion for a new trial
for abuse of discretion. United States v. Willis, 523 F.3d
762, 771 (7th Cir. 2008).
Hassebrock contends that evidence of the filing exten-
sion preponderates heavily against the jury’s verdict. This
argument is essentially the same as the sufficiency argu-
ment that Hassebrock asserted in his motion for a judg-
ment of acquittal. As previously noted, it is questionable
whether his extension was truly granted. Further, even
if it was granted, the jury still could have found that
Hassebrock failed to file his tax returns on or before
April 15, 2005, several months before he sent in
any request for an extension. Given the weaknesses of
Hassebrock’s defenses and the need to draw all
inferences in favor of the government, we conclude that
the district court did not abuse its discretion when it
declined to upset the jury’s verdict in this case. Even
when evidence is contradictory, “[i]t’s the jury’s job—not
the district court’s job or the job of a panel of appellate
judges—to figure out who’s telling the truth.” Lowe v.
Consol. Freightways of Del., 177 F.3d 640, 642-43 (7th Cir.
1999) (“The fact that [the defendant] presented evidence
that is inconsistent with the jury’s verdict does not mean
that the verdict should be reversed. . . . The jury was
24 No. 10-3296

there; it weighed the witnesses’ credibility, considered
the evidence, and reached a supportable conclusion.”).
We therefore affirm the district court’s decision to deny
Hassebrock’s motion for a new trial.

E. Hassebrock’s Sentence
Hassebrock challenges his sentence on three grounds:
the propriety of the sentencing procedure, the substan-
tive reasonableness of the sentence, and the authority of
the district court to impose restitution.

1. Sentencing Procedure
As an initial matter, we review de novo the legal ques-
tion of whether the district court followed the proper
sentencing procedure, but we review factual findings
only for clear error. United States v. Pulley, 601 F.3d 660,
664 (7th Cir. 2010). Hassebrock alleges that the district
court incorrectly arrived at a level 20 guideline with an
imprisonment range of 33 to 41 months for a defendant
with no criminal history. The United States Probation
Office for the Southern District of Illinois (“USPO”)
recommended this level, based on §§ 2T1.1(a)(1) and
2T4.1(H) of the United States Sentencing Guidelines
(“Guidelines”), finding that the tax loss2 resulting from
the offense was greater than $400,000 but not greater

2
Tax loss refers to the amount of tax that the taxpayer owed
but did not pay.
No. 10-3296 25

than $1,000,000. According to the Guidelines, “If the
offense involved failure to file a tax return, the tax loss
shall be treated as equal to 20% of the gross income . . . less
any tax withheld or otherwise paid, unless a more ac-
curate determination of the tax loss can be made.” U.S.S.G.
§ 2T1.1(c)(2)(A). The government determined Hassebrock’s
2004 gross income to be $2,032,303.71. Twenty percent
of this gross income is $406,460.74, which falls within
level 20. In addition to this method of calculation,
Hassebrock’s accountant testified to an estimated tax
liability of $599,121, and IRS Agent Michael Gilmore
estimated the tax liability at $593,514. All three of these
estimates exceed the $400,000 threshold, thereby making
level 20 the appropriate sentencing guideline.
Though Hassebrock does not present an alternative
calculation on appeal, he contests the amount used by the
district court. At the outset, we reject Hassebrock’s argu-
ment that the district court could not have properly
sentenced him in the absence of a filed 2004 tax return
from Hassebrock to use to determine tax loss. Hassebrock
cannot use the conduct that led to his conviction as the
reason that he cannot be sentenced. Next, Hassebrock
argues that the district court should have deducted the
value of a safe containing at least $11,000 that was seized
by law enforcement during the execution of a search
warrant. He argues that these assets qualify as “tax with-
held or otherwise paid” under U.S.S.G. § 2T1.1(c)(2)(A),
but he provides no factual support that these assets
were used as partial payment of his 2004 taxes owed.
Finally, Hassebrock argues that legitimate deductions will
reduce the amount of the assessment once his 2004 tax
26 No. 10-3296

return is ultimately filed. We have recognized that “tax
loss” refers to “the amount of loss that the defendant
attempted or intended to create through his tax offense”
and not to “the actual amount of loss suffered by the
government.” United States v. Chavin, 316 F.3d 666, 677-78
(7th Cir. 2002) (holding that unclaimed but legitimate
deductions are not considered when calculating tax
loss under U.S.S.G. § 2T1.1).
It is well settled that the district court applies the
Guidelines method of calculating tax loss unless a
more accurate rate can be determined. See U.S.S.G.
§ 2T1.1(c)(2)(A); United States v. Hoover, 175 F.3d 564, 568
(7th Cir. 1999). The district court is best positioned to
determine whether any testimony or evidence presented
by the defendant offers a more accurate estimate of his
gross income. See United States v. Valenti, 121 F.3d 327,
334 (7th Cir. 1997) (affirming the district court’s applica-
tion of the Guidelines method for determining tax loss
rather than the defendant’s); see also United States v. Wu,
81 F.3d 72, 75 (7th Cir. 1996) (rejecting the notion that
courts have any responsibility “to comb the books of
convicted tax evaders seeking ways in which they could
have lowered their tax liability and their sentences”).
The district court in this case properly relied on the
methodology laid out in the Guidelines to calculate
Hassebrock’s tax loss.

2. Substantive Reasonableness of Sentence
Hassebrock next challenges the substantive reason-
ableness of his sentence. We review the substantive
No. 10-3296 27

reasonableness of a sentence for abuse of discretion, and
a “correctly calculated, within-Guidelines sentence is
entitled to a presumption of reasonableness.” Pulley, 601
F.3d at 664. The district court accepted the findings of
the Presentence Investigation Report (“PSR”) and im-
posed a sentence that fell within the Guidelines. The
court properly considered the trial record, the PSR,
Hassebrock’s testimony, and the factors listed in
18 U.S.C. § 3553(a).3
In support of a sentence on the higher end of the sen-
tencing level, the district court noted that Hassebrock
consciously disobeyed his obligation to pay taxes, joined
a fictitious Native American tribe to avoid his tax obliga-

3
The factors in § 3553(a) include:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed educational
or vocational training, medical care, or other correc-
tional treatment in the most effective manner;
(3) the kinds of sentences available . . . .
18 U.S.C. § 3553(a).
28 No. 10-3296

tion, and attempted to pay taxes with fraudulent sight
drafts. The court further criticized Hassebrock for failing
to accept responsibility for his actions, a step that could
have reduced the sentencing level. Referencing the
§ 3553(a) factors and using language that mirrors the
introductory comments of U.S.S.G. § 2T1.1, Judge Reagan
announced at the sentencing hearing:
[T]he crux of this Court’s decision to imprison
Mr. Hassebrock is based upon two things. It is the
need to deter criminal conduct and the need to pro-
mote respect for the law as well as just punishment
for the offense. Only a sentence of incarceration can
deter Mr. Hassebrock and others from tax evasion
and failure to file, and a sentence of probation would
not promote respect for the law, but encourage
people to flaunt it. . . . Because of the limited number
of criminal tax prosecutions relative to the estimated
incidents of such violations, deterring others from
violating the tax laws is a primary consideration
underlying these guidelines.
Judge Reagan further concluded that the case involved
greed and that therefore the punishment should include
a monetary penalty.
Hassebrock nevertheless contends that the district
court issued an excessive sentence because it sought to
“make an example” out of him as a tax protestor. He
does not cite any specific factual allegations to support
a claim of bias, and he fails to recognize that deterrence
is an appropriate consideration in sentencing. The court’s
denial of the government’s request for the cost of pros-
No. 10-3296 29

ecution and the court’s respectful comments toward
Hassebrock further belie his claim of bias.
Hassebrock argues that his lengthy sentence of impris-
onment is wrongful in light of the fact that he was eligible
to receive only probation; however, Hassebrock’s own
sentencing memorandum acknowledged that his convic-
tions are not eligible for probation. Thus, the only argu-
ment that he is left with is that the Sentencing Com-
mission erred in creating tax Guidelines that favor im-
prisonment over probation. While the district court was
entitled to consider this argument, the district court
was also entitled to reject it and apply a sentence in
line with the Guidelines.
Hassebrock also argues that the fine imposed is
impermissibly severe. He points to the fact that the gov-
ernment requested the minimum fine but the court never-
theless imposed a fine of $74,000 (nearly the maximum
fine in the applicable level). Yet the government sought
the minimum fine not in the spirit of lenity, but in recog-
nition of “the size of that obligation that he has to the
United States,” referring to his restitution obligation.
Judge Reagan reasoned that the fine of $74,000 was neces-
sary to cover the costs of incarceration. District courts
have the discretion to order a criminal defendant to pay
the costs of incarceration. See U.S.S.G. § 5E1.2(d)(7)
(“In determining the amount of the fine, the court shall
consider . . . the expected costs to the government of any
term of probation, or term of imprisonment and term of
supervised release imposed . . . .”); see also United States
v. Turner, 998 F.2d 534, 536 (7th Cir. 1993).
30 No. 10-3296

In determining the sentence, the district court carefully
considered the § 3553(a) factors, particularly the nature
of the offense and the need for deterrence. The court
did not abuse its discretion in imposing a within-Guide-
lines sentence for the serious offenses that Hassebrock
committed. Hassebrock’s arguments are unavailing and
fall significantly short of rebutting the presumption of
reasonableness that we accord to a within-Guidelines
sentence.

3. Imposition of Restitution
Finally, Hassebrock challenges his sentence by arguing
that the district court does not have the authority to
order restitution in cases involving tax offenses and
that the amount imposed is unreasonable.

a. Authority to Impose Restitution
We review de novo questions of law involving the
district court’s authority to order restitution. United States
v. Webber, 536 F.3d 584, 601 (7th Cir. 2008). The government
properly acknowledges that restitution is not permitted
pursuant to 18 U.S.C. § 3663 or 18 U.S.C. § 3663A for
offenses that fall within Title 26 of United States Code.4

4
The USPO incorrectly stated in its PSR that restitution
could be ordered in this case pursuant to 18 U.S.C.
§ 3663(a)(3). This provision is inapplicable to this case, as
it states that “[t]he court may also order restitution in any
(continued...)
No. 10-3296 31

However, a district court may impose restitution for
Title 26 offenses as a condition of probation, see 18 U.S.C.
§ 3563(b)(2), or as a condition of supervised release, see
18 U.S.C. § 3583(d). Section 3583(d), the Supervised Re-
lease Statute, provides in relevant part: “The court may
order, as a further condition of supervised release, . . . any
condition set forth as a discretionary condition of proba-
tion in section 3563(b) and any other condition it con-
siders to be appropriate . . . .” See also U.S.S.G. § 5E1.1(a)(2)
(“In the case of an identifiable victim, the court shall . . .
impose a term of probation or supervised release with a
condition requiring restitution for the full amount of the
victim’s loss, if the offense is not an offense for which
restitution is authorized under 18 U.S.C. § 3663(a)(1) but
otherwise meets the criteria for an order of restitution
under that section.”); United States v. Batson, 608 F.3d 630,
635 (9th Cir. 2010) (“The Supervised Release Statute,
together with the Probation Statute, unambiguously
authorizes federal courts to order restitution as a condi-
tion of supervised release for any criminal offense, in-
cluding one under Title 26, for which supervised release
is properly imposed.”); United States v. Nolen, 523 F.3d
331, 333 (5th Cir. 2008) (“[R]estitution may be imposed
if done so as a condition of supervised release in a
criminal tax case, even in the absence of a prior
definitive determination or adjudication of the amount
of taxes owed, and if limited to losses from the crime of

4
(...continued)
criminal case to the extent agreed to by the parties in a plea
agreement.”
32 No. 10-3296

conviction.”). Thus, it is clear that district courts possess
the authority to impose restitution for tax offenses as
a condition of supervised release.
It is less than clear, however, whether the district court
in this case actually did impose restitution as a condi-
tion of supervised release, rather than as an independent
component of the sentence. The district court indicated
some confusion as to its authority to order restitution
during the sentencing hearing, and the PSR erroneously
stated that restitution could be ordered pursuant to
18 U.S.C. § 3663(a)(3). Throughout the sentencing
hearing, the government requested that the district court
impose restitution and noted that the court’s only
authority for doing so was as a condition of probation
or supervised release. Thus, although the district court
did not expressly state the legal basis for its order of
restitution, it had been made aware of the limits to its
authority. The court linked the order of restitution to
the sentence of supervised release on two occasions
but stopped short of directly identifying restitution as a
condition of supervised release. For example, during the
sentencing hearing, Judge Reagan stated, “Restitution
shall be paid . . . immediately. If you can’t pay it immedi-
ately, payment will be due during imprisonment. If it
is not paid during imprisonment, it will be a condi-
tion of supervised release.” In the “Supervised
Release” judgment form, the court referenced the order
of restitution in a subsection labeled “Special Conditions
of Supervision” but primarily in terms of how it would
be collected.
No. 10-3296 33

Because a district court can only impose restitution as
a condition of supervised release, a defendant cannot be
required to pay restitution until his period of supervised
release begins. We are therefore troubled by the district
court’s oral and written statements that require immedi-
ate payment of restitution. Hassebrock has apparently
heeded the district court’s order and has started to
make payments. The district court reaffirmed its require-
ment of immediate payment when it denied Hassebrock’s
motion to stay restitution pending appeal.
When presented with a very similar situation, the
Fourth Circuit determined that a remand was necessary.
United States v. Dean, 64 F.3d 660, 1995 WL 493006, at *4
(4th Cir. 1995) (per curiam) (unpublished table decision).
In Dean, the Fourth Circuit concluded (and the govern-
ment conceded) that the district court’s restitution order
making payment due “immediately” indicated that the
district court must have ordered restitution pursuant to
18 U.S.C. § 3663(a), rather than § 3583(d) or § 3563(b)(3).
The Fourth Circuit held that the restitution order “was
without statutory authorization” and remanded to allow
the district court to consider the issue of restitution as a
condition of supervised release. Id. The district court’s
immediacy requirement, along with its failure to
explicitly label restitution as a condition of supervised
release, leads us to the same conclusion in this case.
The Second Circuit, however, decided not to remand
when confronted with a sentence in which the district
court did not clearly set forth the basis for its order of
restitution. See United States v. Bruno, 234 F.3d 1263, 2000
34 No. 10-3296

WL 1715254, at *3-4 (2d Cir. 2000) (unpublished table
decision). The Second Circuit noted that the district
court had not cited to any statutory authority for its
order, that the PSR did not reference § 3663(a), and that
the judgment form listed restitution as one of the “Addi-
tional Supervised Release Terms.” Id. Despite acknowl-
edging that the district court’s oral statement may have
been “ambiguous,” the Second Circuit found “no reason
to believe that the court was not imposing restitution
as a special condition of supervised release.” Id. at *4. By
contrast, the record in the present case is not simply
ambiguous but also conflicting, which does gives us
reason to believe that the court did not impose restitu-
tion as a condition of supervised release.
For Title 26 offenses, a district court is only authorized
to impose restitution as a condition of probation or as a
condition of supervised release. Given that the govern-
ment carefully explained the court’s authority, it seems
likely that the court was aware that it could only
impose restitution as a condition of supervised release.
But because a degree of uncertainty remains, we remand
for the limited purpose of allowing the district court
to clarify the statutory basis for its order of restitu-
tion. The district court does not have the authority to
impose restitution pursuant to § 3663, nor does it have
the authority to require immediate payment when im-
posing restitution as a condition of supervised release.
The district court does, however, have the authority to
reimpose the same restitution order, provided that the
court clarifies that it is imposing restitution pursuant to
§ 3583(d).
No. 10-3296 35

b. Amount of Restitution Imposed
Our concern with the district court’s imposition of
restitution rests only with the questionable basis and not
with the actual amount. Despite Hassebrock’s objections,
we conclude that the district court did not abuse its
discretion when it determined the amount of restitution
to impose.
We review a district court’s calculation of restitution
only for abuse of discretion, and we view the evidence
in the light most favorable to the government. Webber, 536
F.3d at 601. The amount of restitution is limited to the
losses caused by the specific conduct underlying the
offense for which the defendant was convicted. See 18
U.S.C. § 3663A(a). The prosecutor must establish the
amount of loss by a preponderance of the evidence. See
United States v. Hosking, 567 F.3d 329, 332-33 (7th Cir.
2009) (citing 18 U.S.C. § 3664(e)). Yet the Guidelines also
recognize that it may be impossible to make a perfect
calculation and that the court may need to “simply
make a reasonable estimate based on the available
facts.” United States v. O’Doherty, 643 F.3d 209, 218-19 (7th
Cir. 2011) (quoting U.S.S.G. § 2T1.1, app. 1). We have
emphasized that the district court has broad discretion
to determine the procedures for calculating the amount
of restitution. See United States v. Minneman, 143 F.3d 274,
284 (7th Cir. 1998). We have encouraged—but not
required—district courts to articulate detailed findings
of fact in support of their restitution awards. Id. at 285.
In general, the USPO calculates the amount of tax
loss using evidence admitted at trial and then recom-
36 No. 10-3296

mends this amount for restitution in its PSR. As we
have stated,
A district court may rely on the PSR in ruling on
factual issues in the sentencing context as long as the
PSR is based upon sufficiently reliable information.
When the court relies on information contained in
the PSR at sentencing, it is the defendant’s burden to
show that the PSR is inaccurate or unreliable. When a
defendant has failed to produce any evidence calling
the report’s accuracy into question, a district court
may rely entirely on the PSR.
United States v. Artley, 489 F.3d 813, 821 (7th Cir.
2007) (internal quotation marks and citations omitted).
Although the loss under the sentencing guidelines refers
to the intended loss and the loss under restitution refers
to the actual loss, the method of calculation is related.
See United States v. Copus, 110 F.3d 1529, 1537 (10th
Cir. 1997).
In this case, the district court adopted the PSR’s conclu-
sions in their entirety. The PSR arrived at an amount of
restitution ($997,582.98) based on a tax amount owed of
$593,557, representing actual loss, plus interest until the
date of sentencing hearing. Hassebrock contends that his
tax liability is approximately $1,600, but he provides no
evidence in support of this assertion. 5 In contrast, the PSR

5
Hassebrock claims to have asserted in his Objections to the
PSR that his 2004 return should be approximately $1,600.
However, that document argued that his 2005 tax computation
(continued...)
No. 10-3296 37

relied on IRS determinations, bank records, and third
party interviews to support its classifications of
the income earned in 2004. The PSR’s estimate was con-
servative in treating the majority of the checks made out
to the Hassebrocks as allowable business expenses. The
district court acted well within its discretion in cal-
culating restitution based on the PSR’s estimate and the
evidence introduced at sentencing.
Therefore, with the possible exception of the basis for
ordering restitution, the district court imposed a sentence
that was procedurally proper, substantively reasonable,
and statutorily authorized.

III. Conclusion
For the foregoing reasons, the order of restitution
is V ACATED , and the case is R EMANDED for further pro-
ceedings consistent with this opinion. In all other
respects, the district court’s judgment is A FFIRMED.

5
(...continued)
should be $1,602. In reference to his 2004 return, Hassebrock
stated simply “Objection to the 2004 tax computation.”

11-22-11