[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________ FILED
U.S. COURT OF APPEALS
No. 03-11377 ELEVENTH CIRCUIT
_____________________________ May 12, 2004
THOMAS K. KAHN
D. C. Docket No. 02-00041-CR-1-MMP CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HENRY J. USCINSKI,
Defendant-Appellant.
_________________________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________________________
(May 12, 2004)
Before EDMONDSON, Chief Judge, DUBINA and COX, Circuit Judges.
PER CURIAM:
In 2002, Appellant Henry Uscinski pleaded guilty to violating 26 U.S.C. §
7201 by filing a false tax return for the 1996 tax year in which he knowingly
understated his taxable income by $1,551,863. At sentencing, the district court
enhanced Uscinski’s sentence for obstruction of justice and fined Uscinski
$250,000. Uscinski appeals the enhancement and the amount of the fine. We
affirm, except we vacate and remand on the amount of the fine.
BACKGROUND
In January 1996, Appellant Henry Uscinski began representing Claude
Louis DuBoc in extradition proceedings. The government had informed Uscinski
that all of DuBoc’s funds were drug-tainted and forfeitable to the United States.
In May 1996, DuBoc gave Uscinski authority to handle DuBoc’s financial affairs
with respect to DuBoc’s account in Austria. Between August and November
1996, Uscinski withdrew for his personal use approximately $1,500,000 from
DuBoc’s account. Uscinski then transferred those funds to various banks.
Uscinski did not report the funds as income on his 1996 federal income tax return.
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In 1997, the government began investigating the existence of DuBoc’s
previously unknown Austrian bank account. During that investigation, the
government learned of Uscinski’s control over the account and his transfers of
funds. The government also found a letter from another of DuBoc’s attorneys to
Uscinski with an article on countries having lax money laundering regulations.
Thereafter, the government asked Uscinski about the Austrian account.
Uscinski lied about the location of the money transferred and about the purpose of
the transfers -- stating that the money was used to support DuBoc’s family. Based
on that conversation, the government, with the help of foreign governments, traced
the money to determine if it had been used for DuBoc’s family -- it had not.
Instead, the government discovered that the money had been used for Uscinski’s
personal benefit.
Thereafter, the government charged Uscinski with tax evasion, and he
pleaded guilty to the offense. Uscinski’s Pre-Sentencing Investigation report
recommended a two-level increase for obstruction of justice and stated that
$250,000 was the statutory maximum fine. The district court sentenced Uscinski
to 42-month’s imprisonment and a $250,000 fine.
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DISCUSSION
Uscinski argues that the district court erred in imposing an enhancement for
obstruction of justice because (1) the district court did not enter specific findings
of fact; (2) Uscinski’s acts did not obstruct justice; and (3) imposition of the
enhancement amounts to impermissible double counting. When a district court
imposes an enhancement for obstruction of justice, this Court reviews the district
court’s factual findings for clear error and its application of the sentencing
guidelines to those facts de novo. 18 U.S.C. § 3742; United States v. Bradford,
277 F.3d 1311, 1315 (11th Cir. 2002).
Sentencing Guidelines § 3C1.1 provides for a two-level enhancement if “the
defendant willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice during the course of the investigation, prosecution, or
sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1. And
application note 4(g) mandates the enhancement if a defendant made a material
false statement to a law enforcement officer and that statement significantly
obstructed or impeded the investigation. Id. comment. (n.4(g)).
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I. Findings of Fact.
Uscinski first argues that the district court erred in applying an obstruction
enhancement because the court failed to make adequate findings of fact. To
permit meaningful appellate review, a district court should make specific findings
of fact when applying § 3C1.1. United States v. Alpert, 28 F.3d 1104, 1107-08
(11th Cir. 1994) (en banc). For false statements, a district court “must find that the
statements were false and material” and “must also explain how the statements
significantly obstructed or impeded the investigation or prosecution of the
offense.” Id. But a remand is unnecessary if the record clearly reflects the basis
for enhancement. United States v. Taylor, 88 F.3d 938, 944 (11th Cir. 1996).
In this case, the record clearly reflects the basis for the district court’s
enhancement: the enhancement was based upon Uscinski’s statements that the
money had been transferred to support DuBoc’s family. Uscinski does not dispute
that his statements were false and material. Therefore, we need not remand for
additional findings.
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II. Obstruction of Justice.
Uscinki next argues that his false statements did not obstruct the
government’s investigation. Although a defendant’s denial of guilt will not
support an enhancement for obstruction, Uscinski’s statement was more than a
denial of guilt: Uscinski’s statements caused the government to take the
additional and unusual step of having foreign governments trace the $1,551,863 to
determine if the money went to DuBoc’s family. See United States v. Salemi, 26
F.3d 1084, 1088 (11th Cir. 1994) (concluding that defendant’s false statements
were not merely denials of guilt because they were made to impede and misdirect
the government’s investigation). Because Uscinski did not simply deny his guilt,
but instead concocted a false, exculpatory story that misled the government, the
district court did not err concluding that Uscinski significantly obstructed justice.
III. Double Counting.
Uscinski also argues that the district court erred in applying the
enhancement for obstruction because doing so amounted to impermissible double
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counting. Uscinski argues that double counting occurred because his false
statements were part of his offense of tax evasion.
This Court reviews de novo a claim of double counting. United States v.
Naves, 252 F.3d 1166, 1168 (11th Cir. 2001). Impermissible double counting
occurs “when one part of the Guidelines is applied to increase a defendant’s
punishment on account of a kind of harm that has already been fully accounted for
by application of another part of the Guidelines.” Id. “Double counting is
permitted if the Sentencing Commission intended the result, and if the result is
permissible because each section concerns conceptually separate notions related to
sentencing.” Id. (citation and quotations omitted). “Absent a specific direction to
the contrary, we presume that the Sentencing Commission intended to apply
separate guideline sections cumulatively.” Id.
The guideline calculation for tax evasion, U.S.S.G. § 2T1.1, does not take
into account Uscinski’s statements because those statements were not part of
Uscinski’s offense of tax evasion under 26 U.S.C. § 7201. Section 7201 states:
Any person who willfully attempts in any manner to evade or defeat any tax
imposed by this title or the payment thereof shall, in addition to other
penalties provided by law, be guilty of a felony and, upon conviction
thereof, shall be fined not more than $100,000 ($500,000 in the case of a
corporation), or imprisoned not more than 5 years, or both, together with the
costs of prosecution.
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26 U.S.C. § 7201. Under § 7201, false statements are sometimes part of the
offense of tax evasion. See United States v. Winfield, 960 F.2d 970, 973 (11th
Cir. 1992) (per curiam) (stating that under § 7201, for tax evasion involving
failure to file a return, a false statement made after the date the return was due is
an affirmative act of evasion). But, under § 7201, when tax evasion involves the
filing of a fraudulent tax return, the offense is complete upon filing. Sansone v.
United States, 85 S.Ct. 1004, 1011 (1965).* Because Uscinski’s tax evasion was
complete upon the filing of his tax return, his false statements to the government
were not a continuation of his crime.
Furthermore, Uscinski’s false statements involved a notion conceptually
separate from tax evasion. Uscinski made his statements in an effort to prevent the
government from discovering his tax evasion. This obstruction of justice is a harm
“separate and distinct” from the “obstruction of the collection of revenue.” United
States v. Sabino, 307 F.3d 446, 451 (6th Cir. 2002) (concluding that no
impermissible double counting occurred by imposing an enhancement for
obstruction of justice in a tax evasion case). Finally, the sentencing guidelines do
*
We read Winfield narrowly to prevent it from conflicting with Sansone. Winfield’s application
is limited to § 7201 evasions involving failure to file a tax return. Where a tax return has been filed,
Sansone applies; and the tax evasion is complete upon filing.
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not specifically prohibit, in tax evasion cases, an enhancement for obstruction of
justice based upon false statements to law enforcement.
Because Uscinski’s false statements were not part of his offense of tax
evasion, the enhancement for obstruction of justice does not amount to
impermissible double counting. Therefore, the district court did not err in
applying an enhancement under § 3C1.1.
CONCLUSION
The record shows that Uscinski’s false statements significantly obstructed
the government’s investigation of DuBoc’s Austrian account. And those false
statements were not a part of Uscinski’s offense of tax evasion. Because the
record supports a § 3C1.1 enhancement for obstruction and because that
enhancement does not amount to double counting, we affirm the district court’s 2-
level enhancement for obstruction of justice.
Uscinski also appeals the $250,000 fine, arguing that the district court erred
in imposing a fine in excess of the guideline range. The government agrees that
the district court erred in imposing a $250,000 fine. Therefore, we accept the
concession of error and vacate and remand for resentencing on this issue.
AFFIRMED IN PART; VACATED IN PART AND REMANDED.
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