Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-19-2006

USA v. Vasquez
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2462




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                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 05-2462


                           UNITED STATES OF AMERICA,

                                                              Appellant,

                                           v.

                                ROLANDO VASQUEZ




                      Appeal from the United States District Court
                              for the District of New Jersey
                        (D.C. Criminal Action No. 04-cr-00084)
                      District Judge: Honorable William J. Martini


                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 7, 2006

                   Before: RENDELL and AMBRO, Circuit Judges,
                            and SHAPIRO,* District Judge

                             (Opinion filed April 19, 2006)


                                       OPINION


SHAPIRO, District Judge.


      *
       Honorable Norma L. Shapiro, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
       Rolando Vasquez was found guilty of filing a false claim with the Internal

Revenue Service (“IRS”) and aiding in the filing of a false income tax return. The

Government appeals his sentence of 16 months’ imprisonment. We vacate the sentence

and remand.

                    I. Factual Background and Procedural History

       Rolando Vasquez, a tax preparer in Jersey City, New Jersey, used his tax

preparation business to defraud the IRS. The fraud took two forms: first, Vasquez, using

the social security numbers and identities of unknowing Puerto Rican residents to create

false W-2 forms and false tax returns, then claimed refunds on their behalf and deposited

the refund checks in bank accounts he controlled; second, Vasquez inflated tax refunds of

his actual tax preparation clients by fabricating deductions, without the knowledge of the

individual taxpayers, to increase his business volume (by establishing Vasquez’s

reputation as someone who could obtain large tax refunds). The scheme apparently had

the desired effect, as Vasquez prepared nine times as many tax returns in 2002 as he did

in 1995; the refunded amounts were correspondingly larger. The IRS audited 849 of the

13,164 tax returns Vasquez prepared for 2001 and 2002; filing those returns alone caused

a tax loss to the government of over two and one-half million dollars.

       A jury convicted Vasquez of four counts of filing a false claim with the IRS in

violation of 18 U.S.C. § 287 (Counts 1-4) and eight counts of aiding in filing a false

income tax return, in violation of 26 U.S.C. § 7206(2) (Counts 5-12). The Indictment

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alleged a tax loss of $19,961, attributable to Counts 1-4; no specific amount of loss was

attributed to Counts 5-12.

       Vasquez’s sentencing took place after the Supreme Court decided United States v.

Booker, 

(2005). Prior to sentencing, the Government presented the

Probation Office with evidence of many more fraudulent returns as “relevant conduct” for

sentencing under U.S.S.G. § 1B1.3.1 With regard to Counts 1-4, the Government

presented evidence of 52 additional false claims filed on behalf of Puerto Rican residents

as proof of a tax loss of approximately $260,000; with regard to Counts 5-12, it presented

evidence of over 800 additional inflated tax returns as proof of a tax loss of over $2.7

million. These losses raised the Sentencing Guidelines offense level for Counts 1-4 to 18

(from six) and for Counts 5-12 to 24 (also from six). Taking into account the loss

amounts and other sentence enhancing factors proffered by the Government, the

Presentence Report calculated the offense level at 26; with a criminal history category of

I, the Sentencing Guidelines range was 63 to 78 months’ incarceration.

       By letter to the District Court, Vasquez argued the sentence should be based on the

guidelines offense level only for the loss figure alleged in the Indictment, because

judicial fact-finding in support of a Sentencing Guidelines increase violated his Sixth



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         U.S.S.G. § 1B1.3(a) requires sentencing courts to consider as relevant conduct “all acts
and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully
caused by the defendant . . . that occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to avoid detection or responsibility for
that offense.”

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Amendment right to a jury trial under Booker. The offense level for the loss amount

proven at trial was only 12, with a guidelines range of 10 to 16 months. The Government

argued the continued appropriateness of judicial fact-finding at sentencing. The district

judge accepted certain sentence enhancing factors alleged by the Government,2 but

excluded the Government’s evidence of additional losses because he believed a sentence

based on losses not proven at trial was unconstitutional under Booker. Considering only

the “losses . . . reflected in the Indictment which the jury found the Defendant guilty on”

(less than $20,000), the district judge sentenced Vasquez to 16 months’ imprisonment.

The Government timely appealed.

                                        II. Discussion

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate

jurisdiction under 28 U.S.C. § 1291 (review of final orders) and 28 U.S.C. § 3742(b)

(appeal of sentence by the Government).

       We review the questions of law de novo, United States v. Hendricks, 

,

176 (3d Cir. 2005), and the sentence for reasonableness. United States v. Cooper, 

, 326-27 (3d Cir. 2006).

       The issues before the Court are: whether the sentencing judge erred in refusing to



       2
          The judge found that Vasquez was in the business of preparing and assisting in the
preparation of income tax returns and used a special skill in committing the false claims fraud.
Additionally, the judge accepted the Government’s evidence that Vasquez was still preparing tax
returns while released on bond, although he had told the Probation Office the contrary, but
refused to accept proof the returns were fraudulent.

                                               4
consider the Government’s evidence of tax loss; and whether the resulting sentence was

reasonable.

       The sentencing judge refused to consider any evidence of tax loss beyond that

alleged in the Indictment because a hearing before a judge to consider the Government’s

additional evidence would be “exactly the type of situation that the [Supreme Court in

Booker] said would not satisfy the Sixth Amendment, versus a hearing before a jury or a

plea of guilty to a specific amount of money.” J.A. at 58.

       In Booker, the Supreme Court held the mandatory enhancement of a sentence

under the Sentencing Guidelines, based on facts (other than prior convictions) not

admitted by the defendant or found by a jury, violates the Sixth Amendment. Booker, 

, 244 (2005). It remedied this constitutional infirmity by making the Sentencing

Guidelines “effectively advisory.” 

After Booker, the sentencing procedure

includes two steps. United States v. Robinson, 

, 700-701 (7th Cir. 2006).

The first step is to calculate the correct guideline range just as before. See 

(“as before Booker, the standard of proof under the guidelines for sentencing

facts continues to be preponderance of the evidence”); United States v. Miller, 

, 363 (3d Cir. 2005) (“the District Court is free to engage in precisely the same

exercise in judicial fact finding as it did [before Booker], so long as such fact finding is

consistent with Booker”). In the second step, a judge must consider the statutory factors

listed in 28 U.S.C. § 3553(a) to determine whether to sentence within the advisory



                                               5
guidelines range. Because Booker did not change the manner in which the correct

guidelines range is calculated, but only the weight of the correctly calculated range in the

final determination of the appropriate sentence, the district judge erred in holding that it

was improper to consider evidence relevant to sentencing.

       Vasquez contends that even if the sentencing judge erred in failing to consider the

additional evidence of tax loss, the sentence should not be vacated because it is

reasonable. To determine if the court acted reasonably in imposing a sentence, we must

first be satisfied the court exercised its discretion by giving meaningful consideration to

the relevant factors under 18 U.S.C. § 3553(a). Meaningful consideration of the §

3553(a) factors necessarily includes the correct calculation of the applicable guideline

range. 18 U.S.C. § 3553(a)(4). See 

(“district courts must consult

the Guidelines and take them into account when sentencing”); 

(“[i]n consideration of the § 3553(a) factors, a trial court must calculate the correct

guidelines range applicable to a defendant's particular circumstances”).

       The district judge did not give meaningful consideration to the § 3553(a) factors

because he refused to consider tax loss evidence that, if found probative, would have

resulted in a significantly higher offense level and guideline sentencing range. See

(“[b]y sidestepping [the] determination [of the sentencing facts

alleged by the Government], the district judge erred as a matter of law by failing to

resolve a disputed sentencing fact essential to a properly calculated guidelines range”).



                                              6
       Under Booker, a trial judge is not obligated to sentence within the applicable

guidelines range, but is obligated to consider the correct range as one of the § 3553(a)

factors. A judge cannot reasonably impose the same sentence regardless of the correct

advisory range any more than the judge could reasonably impose the same sentence

regardless of the seriousness of the offense. United States v. Duhon, No. 05-30387, ---

F.3d ----, 

(5th Cir. Feb. 17, 2006), at *4.

       On remand, the district judge should consider the evidence proffered by the

Government, correctly calculate the applicable guidelines range, and impose a sentence

upon consideration of all the § 3553(a) factors.

                                     III. Conclusion

       The sentencing judge erred in failing to consider the Government’s evidence of

relevant conduct. We vacate the judgment of sentence and remand for resentencing in

accordance with this opinion.




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