Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 CR 932-John F. Grady, Judge.
The opinion of the court was delivered by: Evans, Circuit Judge.
Before POSNER, WOOD, and EVANS, Circuit Judges.
This is the kind of case that could give car salesmen a bad name.
Nassim Tahzib, a luxury car salesman, embezzled hundreds of thousands of dollars from his employer and didn't pay the tax man his share of the money. He also had, at least he said he had, a gambling addiction. His failure to pay taxes and his embezzlement eventually led to guilty pleas to a two-count information (he waived indictment) charging income tax evasion and wire fraud. At sentencing, Tahzib sought a below-guidelines sentence based on his claimed gambling addiction and other personal characteristics. The district court rejected his arguments and imposed concurrent terms of 30 months, the low end of the advisory guidelines range. On appeal, Tahzib argues, unconvincingly, that his 30-month sentence is unreasonable.
Tahzib sold cars at MotorWerks, a luxury car dealership in Barrington, Illinois, from 1992 to 2001. In three separate sales in 2001-one Jeep,*fn1 one Mercedes, and one Lexus-Tahzib asked the buyers to pay by transferring money to an account he represented as belonging to MotorWerks but which actually belonged to his wife. Tahzib netted $143,967 from the three sales. Tahzib took a less sophisticated approach in another 2001 sale of a Mercedes when he asked the buyer to pay with a $50,000 cashier's check payable to his wife. Tahzib also had used his wife's account in a 2000 consignment sale of a Porsche for $176,600. On Tahzib's instructions, the buyer wired the purchase money to the account, and Tahzib transferred a portion to the seller. Tahzib kept the remainder, about $140,000, but told the seller that he had used it to pay off the seller's loan from Porsche. Through these five sales, Tahzib stole more than $300,000. These facts underlie the wire fraud charge. See 18 U.S.C. § 1343. The failure to pay taxes on the monies he received underlies the income tax evasion charge. See 26 U.S.C. § 7201.
In his plea agreement, Tahzib admitted to other conduct relevant to the tax evasion charge: working under an alias, being paid in his wife's name, and asking his employer not to withhold taxes from his wages after falsely representing that he was making quarterly tax payments. He stipulated that his failure to pay any income tax for 2000 and his underpayment for 2001 resulted in a tax loss to the government of $144,531.
Additionally, Tahzib was originally hired by MotorWerks under his brother's name and social security number, he did not file his own income tax returns from 1995 to 1999, and the income tax that he did pay through his wife's returns was more than $150,000 less than what he actually owed. Also relevant is Tahzib's prior California conviction for grand theft, which the government explained at sentencing was based on embezzlement at a different car dealership around 1991. According to the government, Tahzib sought a lower sentence in that case by pointing to his purported gambling addiction.
At sentencing, Tahzib did not contest the calculation of his 30- to 37-month guidelines range. He argued for a below-guidelines sentence based on the purported link between his claimed gambling addiction and his criminal conduct. According to Tahzib, he lost most of the embezzled funds in the stock market after his addiction "snowballed" from playing the casinos to "gambling" on stocks. This addiction, he said, motivated him to embezzle from his employer and not pay his taxes. The government countered by questioning whether Tahzib was truly an addict and pointing out that U.S.S.G. § 5H1.4 prohibits a downward adjustment based on a gambling addiction. Tahzib insisted, however, that he was not seeking an adjustment but was pressing for a lower sentence based on the factors in 18 U.S.C. § 3553(a). He explained that shortly before sentencing he contacted a "gambling counselor"-a marriage and family therapist with a certification from the National Council on Problem Gambling-who diagnosed his addiction and suggested that Tahzib might also suffer from depression and bipolar disorder as well. The counselor suggested that Tahzib's possible depression and bipolar disorder-neither of which has ever actually been professionally diag- nosed-began when Tahzib was a teenager and his father died.
The district court was not convinced by Tahzib's evidence of his gambling addiction or by his claims that the purported addiction was connected to his crimes. The court noted that Tahzib claimed to have suffered from the addiction for many years without committing any crimes. The court also questioned the credibility of Tahzib's gambling expert, explaining:
I'm not at all convinced that the defendant has a gambling problem sufficient to overcome his will not to gamble. He said today, to quote him, "Why is it that I have no control at certain times in my life." Well, the fact that he does have control at other times in his life is certainly an indication to me that he is not out of control on a permanent basis. His gambling is selective and his decision to gamble or not to gamble or to gamble excessively or not to gamble excessively appears from the record to be something that is within his volition. .. .
The fact that the stolen money was used for gambling is, in my view, not a mitigating factor. . . . Now, could it be a mitigating circumstance if the defendant lacked control? Perhaps. But, as I say, I think the record fails to reveal that this is the situation here.
The judge also questioned Tahzib's claims that his losses from playing the stock market even constituted gambling. Finally, the judge (veteran District Judge John F. Grady) flatly rejected Tahzib's attempts to connect his purported gambling addiction to the tax evasion charge:
There's been no attempt here to explain half of the case; namely, the tax evasion half in terms of any addiction of any ...