The opinion of the court was delivered by: DENLOW
This case raises the profound issue of whether the Ex Post Facto Clause of the United States Constitution requires this Court to sentence defendant Gary S. Tucker ("Defendant") to less time for more crimes. The answer is no.
On June 11, 1997, pursuant to a written plea agreement, Defendant pleaded guilty to five separate counts of willful failure to file individual income tax returns for the calendar years 1990 through 1994 in violation of 26 U.S.C. § 7203 (1997). Pursuant to paragraph eight of the Plea Agreement, Defendant moves this court to correct perceived errors in the application of the United States Sentencing Guidelines ("Guidelines") to the calculation of his sentencing range in the Pre-sentence Investigation Report ("PSI") and Plea Agreement. First, Defendant argues that the use of an aggregate tax loss of all five counts to calculate the base offense level under the current Guidelines violates the Ex Post Facto Clause of the United States Constitution because three of the five counts occurred before the effective date of the 1993 Guidelines amendments. The 1993 amendments removed from the prior version a one level reduction for willful failure to file a return. Second, Defendant moves for a downward departure in his sentence based on the failure by the Sentencing Commission ("Commission") to take into consideration the particular set of facts presented by Defendant's case when formulating the Guidelines. Third, Defendant moves for a downward departure in his sentence based upon extraordinary personal circumstances.
For the reasons stated below, the Court denies Defendant's motion and adopts the base offense level of 16 as set forth in the PSI and a total offense level of 13, after deducting two levels for Defendant's acceptance of responsibility and one additional level for prompt indication of his intention to plead guilty.
Defendant pleaded guilty to five separate counts of willful failure to file individual income tax returns for calendar years 1990 through 1994. (Plea Agreement PP 1, 4.) Defendant acknowledges that he also willfully failed to file his federal income tax returns for calendar years 1985 through 1989 and stipulates that this constitutes "relevant conduct" under section 1B1.3 of the Guidelines. (Plea Agreement P 6.)
The tax losses are stated in the Plea Agreement. The tax losses for years 1985 through 1988 are not presently known. (Plea Agreement P 6(c).) The tax loss for 1989 is estimated to be at least $ 50,000. (Plea Agreement P 6(c).) The tax losses for the remaining years are as follows:
1990 $ 13,573
1991 $ 39,286
1992 $ 45,257
1993 $ 53,540
1994 $ 23,807
Total $ 175,463
The Plea Agreement is governed by Federal Rule of Criminal Procedure 11(e)(1)(C). The parties agree that Defendant has demonstrated recognition and affirmative acceptance of personal responsibility for his conduct. (Plea Agreement P 7(b).) Defendant provided timely and complete information to the Government concerning his involvement in the crime and promptly informed of his intention to plead guilty. (Plea Agreement P 7(c).) The parties agree that Defendant has no criminal history points.
(Plea Agreement P 7(e).) The Government recommends a sentence not exceeding fifteen months imprisonment. (Plea Agreement P 16.)
III. APPLICATION OF THE CURRENT GUIDELINES DOES NOT VIOLATE THE EX POST FACTO CLAUSE
The United States Constitution provides that neither Congress nor any state shall pass any ex post facto law. Art. I, § 9, cl. 3; Art. I, § 10, cl. 1. The central concern in the ex post facto prohibition is the lack of fair warning and governmental restraint when the legislature increases punishment beyond what was in effect at the time the crime was committed. Weaver v. Graham, 450 U.S. 24, 30, 101 S. Ct. 960, 965, 67 L. Ed. 2d 17 (1981). The Ex Post Facto Clause assures that legislative acts give fair warning of their effect so that individuals may rely on their meaning until explicitly changed. Id. at 28-29, 101 S. Ct. at 964.
A criminal law violates the Ex Post Facto Clause if two elements are present: first, the law is retrospective, that is, it applies to events that occurred before its enactment; and second, the law disadvantages the offender affected by it. Miller v. United States, 482 U.S. 423, 430, 107 S. Ct. 2446, 2451, 96 L. Ed. 2d 351 (1987). "A law is retrospective if it 'changes the legal consequences of acts completed before its effective date.'" Id. (quoting Weaver, 450 U.S. at 31, 101 S. Ct. at 965). An offender is disadvantaged if the revised law increases the punishment imposed for a crime committed prior to the amendment. Miller, 482 U.S. at 433, 107 S. Ct. at 2452-53.
Application of a state's substantively revised sentencing guideline to calculate the sentence imposed for a crime committed before the revision's effective date violates the Ex Post Facto Clause. Id. at 435-36, 107 S. Ct. at 2454. The Seventh Circuit has joined all the circuits in holding that an amendment to the federal Sentencing Guidelines which takes effect after the commission of an offense that works to the offender's detriment is inapplicable under the Ex Post Facto Clause. United States v. Seacott, 15 F.3d 1380, 1386 (7th Cir. 1994).
A. Application of the Guidelines to Tax Offenses
The base offense level for tax crimes is based on the tax loss -- the amount of tax the taxpayer owed and did not pay. United States Sentencing Commission, Guidelines Manual, § 2T1.1(a) (Nov. 1995). The offense level is determined by reference to the table in § 2T4.1 that supplies the point level for ranges of dollar amounts. Id. The Guidelines in effect prior to the 1993 amendments provided that for failure to file a return the base offense level was "1 level less than the level from § 2T4.1 (Tax Table) corresponding to the tax loss." See U.S.S.G. App. C, amend. 491. This reduction is not allowed after the 1993 amendments to the Guidelines. U.S.S.G. § 2T1.1(a).
Under current Guideline section 3D1.2, the total tax loss from all counts is grouped together before referencing the table in section 2T4.1 to determine the base offense level:
(d) When the offense level is determined largely on the basis of the total amount of harm or loss,. . . or if the offense behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior.
Thus, the tax loss from all Defendant's counts are aggregated into a single group to determine the total amount of loss.
B. Application of the Relevant Conduct Provision
Relevant conduct that is part of the same course of conduct factors into the determination of Defendant's base offense level:
§ 1B1.3. Relevant Conduct (Factors that Determine the Guideline Range) (a) Chapters Two (Offense Conduct) and Three (Adjustments). Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level . . . shall be determined on the basis of the following:
(1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and
that occurred during the commission of the offense of conviction, . . . ;
(2) solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all acts and omissions described in subdivisions (1)(A) and (1)(B) above that were part of the same course of conduct or common scheme or plan as the offense of conviction. (emphasis supplied).
The commentary defines "same course of conduct" as follows: