United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 06-4191
                                     ___________

United States of America,                 *
                                          *
      Plaintiff - Appellee,               *
                                          * Appeal from the United States
      v.                                  * District Court for the Western
                                          * District of Arkansas.
Clifford B. Marston,                      *
                                          *
      Defendant - Appellant.              *
                                     ___________

                              Submitted: November 13, 2007
                                 Filed: March 10, 2008 (Corrected 4/1/08)
                                  ___________

Before WOLLMAN, JOHN R. GIBSON, and BENTON, Circuit Judges.
                          ___________

JOHN R. GIBSON, Circuit Judge.

       Following jury trial, Clifford B. Marston was convicted on May 19, 2006 in the
district court1 on nine counts of tax evasion, 26 U.S.C. § 7201,2 twelve counts of filing




      1
      The Honorable Jimm Larry Hendren, Chief United States District Judge for the
Western District of Arkansas.
      2
        The elements of tax evasion are willfulness, the existence of a tax deficiency,
and an affirmative act constituting evasion or attempted evasion of the tax. 26 U.S.C.
§ 7201; Sansone v. United States, 

, 351 (1965).
false tax documents, 26 U.S.C. § 7206(1),3 and four counts of assisting in the
preparation of false returns or other documents, 26 U.S.C. § 7206(2).4 In order to
prove the scienter necessary to convict Marston under the three statutes, the
government was required to show that he acted willfully in failing to report his own
taxable income and the income distributed to his employees. During trial, Marston’s
chief argument was that he held a good faith belief that his domestically earned
income was not taxable because it did not amount to a “source” of income under § 861
of the Internal Revenue Code, 26 U.S.C. § 861. Marston contended that § 861
authorizes taxes only upon foreign sources of income, not domestic income. The
issue at trial was not whether Marston correctly interpreted the tax code, but whether
he held a genuine belief that his interpretation was correct. He raises five issues on
appeal: (1) that the government indicted him on a theory of the case that required
proof of filing false tax returns, but the documents he filed with the IRS did not meet
the legal definition of a “tax return;” (2) that the district court erred when it permitted
the government to reference the documents as tax returns; (3) that the district court
erred when it allowed the government to introduce testimony relating to the bad tax
conduct of other persons; (4) that the district court erred in refusing to admit into
evidence a videotape explaining Marston’s beliefs; (5) that the district court erred in


      3
         To be convicted of perjury under the statute, the defendant must “[w]illfully
make[] and subscribe[] any return, statement, or other document, which contains or
is verified by a written declaration that it is made under the penalties of perjury, and
which he does not believe to be true and correct as to every material matter.” 

7206(1).
      4
         To be convicted for aiding and assisting the preparation or presentation of a
false or fraudulent tax document, the defendant must “[w]illfully aid[] or assist[] in,
or procure[], counsel[], or advise[] the preparation or presentation under, or in
connection with any matter arising under, the internal revenue laws, of a return,
affidavit, claim, or other document, which is fraudulent or is false as to any material
matter, whether or not such falsity or fraud is with the knowledge or consent of the
person authorized or required to present such return, affidavit, claim, or document.”

7206(1).

                                           -2-
issuing a willful blindness jury instruction; (6) and lastly, that the district court erred
by imposing a sentence derived from the use of judge-found facts in violation of
Cunningham v. California, 

(2007), and by treating the advisory
Sentencing Guidelines range as presumptively reasonable. We affirm.

       Clifford Marston, a Doctor of Podiatry, practiced in Springfield, Missouri until
1996, when his practice began to decline as big hospitals bought up patient pools in
the area. To combat the decline, Marston moved to Mountain Home, Arkansas, where
he opened a practice under his existing Missouri corporation, Sunshine Foot Clinic.
Sunshine experienced an initial boom period of robust growth before the arrival of a
competing doctor slowed the practice’s development. When the practice failed to
grow as Marston expected, he began to experience considerable financial strain,
causing Marston to accrue approximately $93,000 in credit card debt in addition to
loan debt he incurred by taking salary advances from Sunshine.

       In January of 1999, Marston’s daughter’s father-in-law exposed him to a
website, which taught that an individual had no legal duty to pay taxes on
domestically earned income. After reviewing the website and conducting his own
review of the tax code, Marston, according to his testimony at trial, allegedly came to
the conviction that Congress had not authorized the collection of taxes on domestic
income. On December 6, Marston acted upon this alleged belief and filed several
amended employer’s quarterly tax return forms 941 with the I.R.S., revising to zero
all previously reported wages paid by Sunshine for the 1996, 1997, and 1998 tax
years, and requesting a refund of taxes previously paid in each corresponding year.
Marston filed additional forms 941on February 7, 2000 and March 23, 2000, revising
to zero all of the employee wages paid by Sunshine for the 1999 tax year. The I.R.S.
rejected each of Marston’s requests for a refund and described his position as having
no legal basis. For the 2000 tax year, Marston reported to the I.R.S., on original forms
941, zero wages for the first two quarters and left blank all wage fields for the later



                                           -3-
two quarters. For the first quarter of 2001, he again filed a form 941 without any
markings in any of the wage fields.

       On April 5, 2000, Marston and his wife filed a 1040-EZ form with the I.R.S.,
reporting that he received $6,620.77 in total wages. This amount did not reflect any
income earned by Marston from Sunshine, but reflected income received by Marston’s
wife that was reported to the government and income received from an investment
account and reported by Firstar Mutual Fund Services, LLC on a Form 1099-R.
According to Marston’s disclosure statement, he listed these sources as taxable
income despite his conviction that they were not in order to “avoid difficulties with
the IRS.” On January 4, 2001, Marston reported to the I.R.S. on a 1998 Form
1040EZ that he had zero income in the tax year 1998. He attached a supplementary
disclosure statement, Form 8275, justifying his filing by stating that he had received
no income from any of the sources listed in 26 C.F.R. § 1.861-8(f)(1). The I.R.S.
replied to Marston in a letter dated April 20, 2001, classifying his Form 1040EZ as
“frivolous,” describing his position as “having no basis in law,” and encouraging him
to seek the advice of an attorney. On October 2, 2001, Marston sent to the I.R.S. a
1040EZ tax return form for the 2000 tax year that listed zero income.

       Sunshine also supplied two employees, Misty Davis and Loretta Jelinek, with
federal W-2 forms showing zero wages paid for the tax years 1999 and 2000. Davis
and Jelinek subsequently filed tax return forms 1040 for those years, reporting no
wages earned from Sunshine. Davis and Jelinek, in consultation with the I.R.S.,
would eventually report their wages and pay the taxes owed on those wages, along
with amounts due on those wages for contribution to the Medicare and Social Security
funds.

       At trial, Marston argued that he held a good faith belief that domestic sources
of income were not taxable. In essence, he argued that the government failed to prove
that he acted willfully in making false statements to the I.R.S., in aiding or assisting

                                          -4-
Jelinek or Davis in filing false returns, or in evading the payment of income taxes. The
jury convicted him of all twenty-five counts. Subsequently, the district court found
that the applicable amount of potential tax loss attributable to Marston’s conduct was
$404,582.37. The district court sentenced Marston to 26 months’ imprisonment on
each count, to run concurrently.

                                            I.

                                           A.

       Marston’s first argument presupposes an incorrect reading of the indictment
against him. According to Marston, the indictment describes him as having filed false
tax returns and aiding and abetting other persons to file false tax returns. Marston
argues that none of the documents filed with the I.R.S. meet the legal definition of the
phrase “tax return.”

        We have given the phrase “tax return” a narrow and specific meaning when
deciding whether a tax protester has violated 26 U.S.C. § 7203 of the Internal Revenue
Code, willful failure to file a tax return. A defendant can be guilty of failure to file a
tax return even if he actually files a form with the I.R.S. if that form does not contain
“sufficient information [] from which the IRS can calculate tax liability.” United
States v. Grabinski, 

, 686 (8th Cir. 1984). Applying this standard, courts
have held that a return that contains only zeroes and no information regarding gross
income or deductions claimed or only protest information is not considered a valid
“tax return,” so that a person may be convicted for willfully failing to file a return.

(stating “the IRS should not have to accept on faith the taxpayer's assertions
regarding taxable income or tax liability without knowledge of circumstances
regarding, among other things, gross income received or deductions claimed.”);
United States v. Silkman, 

, 1219 (8th Cir. 1976) (per curium) (holding
that form containing only constitutional objections to taxation is not a return); United

                                           -5-
States v. Mosel, 

, 158 (6th Cir. 1984) (per curium) (same); United States
v. Rickman, 

, 184 (10th Cir. 1980) (holding that form listing income as
zero was not an “adequate” return); United States v. Porth, 

, 522-23 (10th
Cir. 1970) (holding that form listing income as zero and containing constitutional
objection to the imposition of a tax, was not a return); see also United States v.
Francisco, 

, 619 (8th Cir. 1980) (filing requirements were not satisfied
by a return that contained “no income information from which tax liability [could] be
calculated”). Marston argues that the indictment refers to the documents that are the
basis of the criminal charges as “tax returns,” although they do not provide sufficient
information to calculate a tax liability, and therefore the government has necessarily
failed to prove an essential element alleged.

        Contrary to Marston’s reading of it, the indictment does not allege, as elements
of the crimes, that he filed “tax returns” as they are legally defined for § 7203
purposes. The indictment alleges that he filed a “Form 1040EZ an individual income
tax return,” an “Employer’s Quarterly Federal Tax Return, Form 941,” and advised
his employees to file an “Individual Income Tax Return Form 1040" with the I.R.S.,
containing false information (reporting, in most instances, zero wages). By referring
to the forms using their full descriptive titles, including the moniker “form,” the
indictment is merely indicating which documents it is relying upon to form the basis
of the crimes alleged. Because these documents are tax return forms, that is how they
were alleged in the indictment. Whether those documents contain the necessary
information to be “tax returns,” adequate to satisfy § 7203, is irrelevant because none
of the relevant statutes are limited to “tax returns.” See 26 U.S.C. § 7201 (attempt to
evade a tax may be committed “in any manner”); § 7206(1) (willfully making false
statements in “any return, statement, or other document” under penalty of perjury is
punishable) (emphasis added); § 7206(2) (willfully aiding in the preparation or
presentation of false returns, affidavits, claims or other documents is unlawful). The
critical allegation in each count of the indictment is that Marston filed, or assisted in
filing, documents which the filer intended to be a tax return, which falsely stated the

                                          -6-
amount of income earned by Marston or his employees. Consequently, we hold that
the language of the indictment does not require that the government prove these
documents were “tax returns.”

                                            B.

       In the alternative, Marston argues that the prosecutor committed misconduct by
referring to the documents as tax returns during trial and that the district court
committed error in allowing the prosecutor to do so. We review this argument for
plain error because Marston did not timely object to the prosecutor’s conduct. United
States v. White, 

, 1023 (8th Cir. 2001). In order to succeed under plain
error review, Marston must show that the district court committed a legal error that
was obvious and affected his substantial rights. 

authority to
correct a forfeited error is discretionary, and we will not exercise that discretion unless
the error seriously affects the fairness, integrity or public reputation of judicial
proceedings.” 

marks omitted). The defendant bears the burden
of proving plain error.

       Marston’s argument fails. Both he and his attorney referred to the documents
as “tax returns.” Even if we were to find that the reference to the documents as tax
returns was error, we cannot see how the fairness, integrity or reputation of the
judicial proceedings are in any way diminished if we refused to notice an alleged error
that the defendant and his counsel embraced at trial.

                                            II.

                                            A.

      According to his testimony, Marston formed the opinion that his income was
non-taxable from several sources, including the statements of Thurston Bell and

                                           -7-
Larkin Rose, individuals who once maintained separate Internet websites advancing
the so-called 861 defense, an argument that contends section 861 of the Internal
Revenue Code permits taxation of only income derived from foreign sources. Over
Marston’s objection the government was permitted to ask Marston if he knew that
Rose had been convicted of willful failure to file a tax return and that Bell had been
enjoined from operating his website. Marston admitted that he had learned these facts,
but only after he had sent to the I.R.S. the documents referenced in the indictment.
The government’s purpose for eliciting the evidence was to show that Marston did not
have a good faith belief that his domestically earned income from Sunshine was non-
taxable. On appeal, Marston argues that his knowledge of the injunction and
conviction was irrelevant because that knowledge was gained after the alleged acts for
which his beliefs serve as a defense to the element of willfulness. We review the
district court’s admission of the evidence for an abuse of discretion. See United States
v. Roenigk, 

, 815 (8th Cir. 1897).

       Although the acts of the offense occurred before Marston learned of the
indictment and injunction, he admitted that he continued to rely upon Bell and Rose
as a basis for his beliefs long afterwards, even at trial. The fact that Marston
continued to espouse a belief that his income was not taxable, even though he knew
its proponent had been convicted of tax evasion, reflects negatively on his credibility.
Because his defense at trial rested largely upon his own testimony that his beliefs were
genuine, circumstantial evidence with regard to his credibility was relevant. Cheek
v. United States, 

, 203-204 (1991) (stating that while a good faith belief
does not have to be reasonable, “the more unreasonable the asserted beliefs or
misunderstandings are, the more likely the jury will consider them to be nothing more
than simple disagreement with known legal duties imposed by the tax laws and will
find that the Government has carried its burden of proving knowledge”); United States
v. Collorafi, 

, 305-06 (2d Cir. 1989) (“[P]roof that a defendant continued
a tax practice that already had been held unlawful by a federal judge is strong



                                          -8-
circumstantial evidence of wrongful intent.”). Therefore, the district court did not
abuse its discretion in admitting the evidence.

                                           B.

       Next, Marston argues that the district court erred in refusing to admit into
evidence a video tape of Larkin Rose describing his § 861 teachings. Marston
admitted, during an in camera hearing regarding admission of the video, that the tape
did not exist until 2002. The alleged acts occurred between 1999 and 2001, well
before the video tape was created. Before testimony began, the district court ruled
that the tape would not be admitted because it was irrelevant to Marston’s belief at the
time of the allegedly illegal acts. Later, during the government’s cross-examination
of Marston, an issue was made of Marston’s continued beliefs. Marston did not renew
his request to reintroduce the video tape. At the time the district court ruled the tape
was irrelevant and Marston waived his argument that it later became relevant by
failing to renew the request. The district court’s evidentiary ruling was not an abuse
of discretion.

                                           C.

       Marston also argues that he was prejudiced by inflammatory remarks made by
the prosecutor during closing arguments. Having conducted a review of the closing
arguments, we conclude that the district court did not abuse its discretion in permitting
the allegedly inflammatory remarks.



                                          III.

      Marston’s argument that the district court erred in giving the jury a willful
blindness / deliberate ignorance instruction is foreclosed by circuit precedent, United

                                          -9-
States v. Dykstra, 

, 452-53 (8th Cir. 1993) (holding that instruction on
deliberate ignorance was proper where defendant was charged with filing false tax
documents); United States v. Bussey, 

, 1249 (8th Cir. 1991), that we are
without the power to overrule. United States v. Hessman, 

, 982 (8th Cir.
2007) (only the court en banc may overrule circuit precedent), cert. denied, 

(Jan. 14, 2008).

                                          IV.

                                           A.

         Marston argues that the district court erred by interpreting the law to require
that it impose a “reasonable” sentence and by presuming reasonable a sentence within
the advisory Guidelines range. Since the time of Marston’s sentencing, the Supreme
Court has issued three important decisions clarifying our review of a district court’s
sentencing decisions. See Rita v. United States, 

(2007); Gall v.
United States, 

(2007); Kimbrough v. United States, 

(2007). Pursuant to Gall, we are directed to engage in a two-part systematic
sentencing review. See United States v. Washington, ___F.3d___, 

,
at * 2 (8th Cir. Jan. 28, 2008); United States v. Bolds, 

, 578-79 (6th Cir.
2007). First, we consider whether the district court committed a significant procedural
error in reaching its sentence, “such as failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory, failing to consider the §
3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence-including an explanation for any deviation
from the Guidelines range.” 

. Such errors are necessarily an
abuse of discretion by the district court. See 

there was no
significant procedural error, we engage in a “deferential abuse-of-discretion” review
of the sentence imposed for substantive reasonableness. 

focuses on how the district court reached its sentence, not whether the district court

                                          -10-
reached a reasonable sentence, and therefore it calls for us to engage in procedural
review.

       We apply the plain error standard to our review because Marston did not object
at sentencing that the district court’s interpretation of the law was incorrect.5 See
United States v. Pirani, 

, 550 (8th Cir. 2005) (en banc). Plain error
review is governed by a four-part test: there must be error, it must be plain, and it must
affect substantial rights; only if all three conditions are met may an appellate court
exercise its discretion to notice a forfeited error, and only then if “the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” 

States v. Olano, 

, 734-35 (1993)). Unlike harmless
error, under plain error review, the defendant bears the burden of proof. 

the district court at least twice referred to a sentence within
the Guidelines as being presumptively reasonable: “It is generally the general rule of
law that a sentence that is then pronounced that is within those advisory guidelines is
presumptively reasonable.” (emphasis added). Later, the court said,

      So it's not just an unfettered discretion that the Court has post-Booker,
      to ignore and sentence outside the advisory guidelines. The Court is
      obliged, I think, to start there. That's what all the cases I've read say.
      That's where you start, is determine what the guidelines are, and then
      start there, presuming that you're in a reasonable area to start with, and
      then determine if there's a basis to go outside of it.


      5
         We previously applied plain error review to a factually similar case in an
unpublished opinion. United States v. Heavner, 

(8th Cir. 2007)
(unpublished). Because unpublished opinions carry no precedential value in our
circuit, see 8th Cir. R. 32.1A, we treat this issue as a matter of first impression. We
also note that the “plain error principle applies even when, as here, the error results
from a change in the law that occurred while the case was pending on appeal.” United
States v. Pirani, 

, 549 (8th Cir. 2005) (en banc).

                                          -11-
(emphasis added). In Rita, the Supreme Court approved of such a presumption, but
only when it is applied on appellate review of a sentence, not when it is applied during
imposition of a 

. The reason for such a limited use of the
presumption is evident in the justification for applying it: the sentencing judge has
reached a discretionary decision, using the § 3553(a) factors, in accord with the
Sentencing Commission’s decision applying the same factors when it promulgated the
Guidelines. 

hindsight, which is how we review interpretations of law, the
district court plainly erred by treating a sentence within the Guidelines as
presumptively reasonable. See United States v. Greene, 

(8th Cir. 2008)
(district court erred in applying presumption of reasonableness); United States v. Huff,
___F.3d___, 

, at *2 (8th Cir. Jan. 30, 2008) (same).

       By presuming the guidelines reasonable, there is a risk that the district court
afforded the Guideline’s recommendation too much weight, to the detriment of the
other § 3553(a) factors, which is contrary to a sentencing judge’s duty to “make an
individualized assessment based on the facts presented,” 

. The
error committed by the district court is much like the procedural error we considered
in Pirani, treating the Guidelines as mandatory instead of 

.
In Pirani, we held that the defendant must show prejudice as a result of the error: there
must be a reasonable probability that the district court would have imposed a lesser
sentence but for the error. 

this case, Marston must produce evidence
from the record that the district court might have imposed a more favorable sentence
except for application of the erroneous presumption.6 

.

       Marston points to no evidence in his brief that the district court, exercising its
discretion, was inclined to impose a more favorable sentence. Despite counsel having

      6
          This case was submitted before the Supreme Court decided Gall and
Kimbrough. Neither party requested permission to supplement their arguments in
light of those cases. Therefore, we take no position with respect to whether Gall or
Kimbrough affected the holding in Pirani.

                                          -12-
told us at oral argument that the record would show the district court “felt too
constrained” by the presumption, our review of the record reveals no hesitance on the
part of the district court. The district court imposed a sentence of 26 months against
an advisory Guidelines range of 24-30 months. It expressly noted that the facts of this
case neither warranted a sentence at the top nor the bottom of the Guidelines, but one
in the middle. Moreover, the district court gave very astute and precise explanations
of the Guidelines, this court’s interpretations of them, and its own thoughts on the
need for just punishment. The sentencing judge engaged in an extended colloquy with
regard to a similar sentencing case in our circuit, United States v. Ture, 

(8th Cir. 2006), the need for citizens to obey even the laws they do not agree with, the
fact that it did not think Marston set out with an intent to steal $400,000 from the
government, and the need to impose a sentence that has “serious consequences to it.”
Even though the district court engaged in an extended discussion on each of these
points, it never expressed disagreement with our holdings, the advisory Guidelines
range, or the policy judgments reflected therein.

       In contrast, we recently remanded two cases for re-sentencing where the district
court applied the improper presumption. In both of those cases, however, the district
court expressed constraint by the presumption. Greene, 

(quoting the
district court, “I do not believe based on current Eighth Circuit law that I am permitted
to do a variance in this case. However, if I had an opportunity to do a variance based
on Booker, I would have done so”); Huff, ___F.3d___, 

, at *2
(quoting the district court, “I might have departed more in this case but for the Eighth
Circuit precedent in the Claiborne case. And if, in fact, that case were to be overturned
on appeal, then I would hope that we would have an opportunity to review this
sentence . . . I would have given him less of a sentence if I thought that I had the
ability to do so”). Similarly, in United States v. Ross, 

(7th Cir. 2007)
(per curium), the Seventh Circuit reversed a sentence where the district court
expressed concern that the Guideline range was “too harsh.” 

(not
conducting plain error review).

                                          -13-
       In this case, the district court never expressed that it felt constrained by the
presumption. Moreover, it was very clear that the district court did not rely solely
upon the Guidelines, but tried to “take into account everything that [it] can pull into
the equation as proper for [it] to consider.” Consequently, Marston has failed to meet
his burden under plain error review. He has been unable to point to any evidence in
the record that suggests the district court would exercise greater discretion if given the
opportunity to do so. Accordingly, we hold that his substantial rights were not
violated by the district court’s erroneous interpretation of the law.

                                           B.

        Next, Marston argues that the district court violated his Sixth Amendment right
to a trial by jury when it considered judge-found facts, such as the amount of his tax
deficiency, to impose a sentence under the United States Sentencing Guidelines.
“[A]ny fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
Apprendi v. New Jersey, 

, 490 (2000). But “[j]udicial fact-finding is
permitted provided that it is done with the understanding that the guidelines are to be
applied in an advisory fashion.” United States v. Morell, 

, 1164 (8th
Cir. 2005). Marston’s argument that the recent Supreme Court decision in
Cunningham v. California, 

(2007), requires otherwise is flawed.
Cunningham involved the California state sentencing scheme, which the Court said
“does not resemble the advisory system the Booker Court had in view.” 

That scheme required the California sentencing judge to impose a sentence above the
statutory maximum based on judge-found facts. 

. In
contrast, Marston’s sentence of 26 months for violating 26 U.S.C. § 7201 (tax
evasion) is well below the five year statutory maximum sentence authorized by the
jury verdict. Moreover, as we have discussed, the district court expressly recognized
the advisory nature of the Guidelines. Therefore, we find no Sixth Amendment
violation in the imposition of Marston’s sentence.
                                           -14-
                                          C.

       Marston does not raise a substantive review argument. Therefore, we are not
called upon to review the reasonableness of his sentence. We note that, as a result, we
need not decide whether a sentence imposed under an erroneous presumption of
reasonableness also enjoys a presumption of reasonableness on review. We leave that
question for another day.

                                          V.

      For the reasons set forth, we affirm the judgement of the district court.
                       ______________________________




                                         -15-