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Sentencing — tax fraud — amount of loss

By: WISCONSIN LAW JOURNAL STAFF//February 2, 2012//

Sentencing — tax fraud — amount of loss

By: WISCONSIN LAW JOURNAL STAFF//February 2, 2012//

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United States Court of Appeals For the Seventh Circuit

Criminal

Sentencing — tax fraud — amount of loss

It was not an abuse of discretion, in determining loss amount in a tax fraud case to use a sample of returns prepared by the defendant.

“Littrice faults the district court for failing to determine a more precise figure upon reducing the tax loss figure from $1.6 million to a $400,000- to $1-million range. We recognize that the district court’s remedy for a possible selection bias in the sample of returns the government provided Littrice was somewhat rough, but we are not convinced that its calculation was ‘outside the realm of permissible computations.’ Al-Shahin, 474 F.3d at 950; cf. Mehta, 594 F.3d at 282-84 (finding harmless error in the district court’s failure to alter its $1.125 million tax loss finding to reflect for a possible selection bias because a reasonable estimate of the tax loss would still be above $1 million); id. at 284-85 & n.2 (Shedd, J., concurring in judgment) (finding no error because the estimate remained reasonable). We distinguish this case from Schroeder, where we noted problems with a particular sentencing hearing involving a similar tax loss calculation that, unlike this case, ‘was flawed from the outset.’ Schroeder, 536 F.3d at 752. Quite unlike Littrice’s case, the district court in Schroeder announced its loss finding at the beginning of the sentencing hearing and before the defendant had an opportunity to present an argument. This essentially forced the defendant to interrupt the district court, so we found it questionable whether the court gave the defendant’s arguments ‘the due consideration they deserved.’ Id. at 753. Here, the district court withheld its tax loss finding until after Littrice had the opportunity to review and present evidence. In no sense did the district court pre-judge the tax loss figure as we found in Schroeder. Also unlike in Schroeder, where the district court confused the government’s burden of proof with the evidence’s admissibility and failed to hold the government to that burden, id. at 753-54, the district court here recognized the government’s burden and properly weighed the evidence in making its relevant conduct finding.”

Affirmed.

10-3959 U.S. v. Littrice

Appeal from the United States District Court for the Northern District of Illinois, Pallmeyer, J., Tinder, J.

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