Opinion
Case No. 2:13-cr-59
06-25-2014
UNITED STATES, Plaintiff-Appellee, v. LUMUMBA TOURE McCORD, Defendant-Appellant.
JUDGE SMITH
Magistrate Judge Kemp
OPINION AND ORDER
This matter is before the Court on Defendant-Appellant, McCord's, appeal from the sentence imposed by the Magistrate Judge in this case. (Doc. 40). For the reasons that follow, the sentence imposed by the Magistrate Judge is AFFIRMED.
I. INTRODUCTION AND FACTUAL BACKGROUND
On February 21, 2014, Defendant-Appellant, Lumumba Toure McCord, was sentenced by Magistrate Judge Kemp to a 60-day period of incarceration and a 1-year term of supervised release for willfully failing to file a federal income tax return in violation of 26 U.S.C. § 7203. (Doc. 33, Minute Entry; Doc. 34, Judgment at 1-3). The Magistrate Judge did not asses fines or interest, but did order McCord to pay restitution of $98,908.85 and a $25.00 special assessment. (Doc. 34, Judgment at 5-6). McCord now appeals and the Magistrate Judge has stayed the execution of judgment pending appeal to this Court. (Doc. 39, Stay Order).
McCord is a 42-year-old attorney who has been licensed to practice in Ohio since 1996. He received both his undergraduate degree (a Bachelor of Science) and his Juris Doctor degree from the University of Toledo, located in Toledo, Ohio. He achieved average grades while enrolled as a student and passed the Ohio bar on his first attempt.
After becoming licensed in 1996, McCord worked for the Franklin County Public Defender's Office for approximately four years. Following that employment, he worked brief stints at the Whitehall Prosecutor's Office and Kmart Corp. Then, in 2000, McCord began a small law firm with another attorney. They worked together until 2007, at which time, McCord began work as a solo-practitioner.
In pecuniary terms, McCord was moderately successful, both while working at the small firm and as a solo-practitioner. However, McCord failed to report income to the IRS for the years 2006, 2007, 2008, 2009, and 2010. According to the IRS investigative agent in this case, McCord failed to respond to multiple IRS notices concerning his failure to file. The investigation also revealed that he failed to respond to solicitations and encouragement to file from his former law partner and his accountants. At the time of sentencing, he owed tax for each of these years as follows:
| Year | Amount Owed |
| 2006 | $20,300.42 |
| 2007 | $12,566.96 |
| 2008 | $30,670.93 |
| 2009 | $14,422.69 |
| 2010 | $20,947.85 |
This totals $98,908.85 in outstanding taxes owed to the IRS.
McCord maintains that his failure to file was negligent. But acknowledges that he knew he was supposed to file returns, did not, and was not ignorant of the fact that he had failed to file. In addition, on September 11, 2013, McCord pled guilty to "Willful failure to file return, supply information, or pay tax." 26 U.S.C. § 7203 (2012) (emphasis added); (Doc. 25, Plea Hrng. Minutes).
McCord's upbringing was relatively stable (though his parents were apparently separated). He has a 15-year-old son with a woman to whom he is not married (but to whom he was, at the time, affianced) and has a child support obligation of $612 per month. McCord was, at the time of the Presentence Investigation Report, making payments but in arrears in the amount of $9,860.42. Other than the conduct in this case and certain motor vehicle infractions, McCord has led a crime-free life.
II. STANDARD OF REVIEW
In deciding an appeal from the judgment of a magistrate judge, a United States District Court is to apply the same scope of review as a United States Circuit Court of Appeals would in considering an appeal from a United States District Court. Fed. R. Crim. P. 58(g)(2)(D); United States v. Charrington, 285 F. Supp. 2d 1063, 1066 (S.D. Ohio 2003) (Rice, C.J.).
According to the United States Supreme Court and the Sixth Circuit, an appeals court reviewing a sentence is to apply "a practical standard of review . . . familiar to appellate courts: review for unreasonableness." United States v. Ming Liou, 491 F.3d 334, 337 (6th Cir. 2007) (internal quotation marks omitted) (quoting United States v. Booker, 543 U.S. 220, 261 (2005)). Reasonableness, in this analysis, consists of components in two categories - substantive and procedural - which are to be treated differently. Id.
"A sentence may be procedurally unreasonable if the district judge fails to consider the applicable Guidelines range or neglects to consider the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without such required consideration." United States v. Jones, 489 F.3d 243, 250-51 (6th Cir. 2007) (internal citations and quotation marks omitted). Additionally, when "a defendant raises a particular argument in seeking a lower sentence, the record must reflect both that the district judge considered the defendant's argument and that the judge explained the basis for rejecting it." Id. (quoting United States v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006)).
A sentence may be substantively unreasonable where the district court selects the sentence arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent § 3553(a) factors, or gives an unreasonable amount of weight to any pertinent factor. Ming Liou, 491 F.3d at 337. With respect to this inquiry, there is a "rebuttable presumption of reasonableness" for sentences within the guideline range. Id.
III. DISCUSSION
McCord appeals the 60-day sentence imposed by the Magistrate Judge on the grounds that it is procedurally and substantively unreasonable. (Doc. 40, Appellant's Brief in passim).
A. Procedural Reasonableness
After greeting the parties, one of the first things the Magistrate Judge did was to go through and consider the guideline range. (Doc. 38, Sent. Tr. at 4:10-4:21). Then, prior to pronouncing sentence, he meticulously went through and separately considered each of the factors set forth in 18 U.S.C. § 3553(a). Id. at 15:19-20:17. Thus, he considered the applicable guideline range and the other factors listed in 18 U.S.C. § 3553(a). See Jones, 489 F.3d at 250-51.
The Magistrate Judge gave the Defendant's counsel an opportunity to argue - which he did at some length. (Doc. 38, Sent. Tr. at 7:18-13:6). He also afforded McCord the opportunity to speak on his own behalf and McCord did so. Id. at 13:13-13:22. Then, not only did the Magistrate Judge consider the arguments made, he actually called a short recess so he could think over his decision (a fairly unusual step in a sentencing hearing). Id. at 13:23-14:4. Upon resuming the bench, he remarked as follows:
All right. Well, I guess I will say at the outset that just the difficulty of this one sentencing proceeding makes me thankful in a way that I am not a District Judge and don't have to do this as a part of my regular routine. I think it has always been a very difficult process, to balance all of these factors and come up with what an appropriate sentence may be.Id. at 4:6-4:12. The Magistrate Judge, in short, gave careful consideration, even to the point of causing himself some minor distress, to the arguments and statements made by McCord and his attorney.
At every step of the analysis, the Magistrate Judge followed the proper protocol. He gave deliberate and careful consideration to every argument and aspect of the sentencing. The sentence is not procedurally unreasonable.
B. Substantive Reasonableness
1. Presumptive Reasonableness
As mentioned, when one considers substantive reasonableness, there is a "rebuttable presumption of reasonableness" for sentences within the guideline range. Ming Liou, 491 F.3d at 337. The sentence of 60 days is not within the guideline range of 12-18 months, thus, mechanistically applying the principal, one would conclude that there is no presumption of reasonableness. However, it is important to keep in mind the posture of the parties. Defendant, not the Government, is the appellant here. Thus, the appellant in this case is not arguing that the below-guideline sentence is too low, but that it is too high - unreasonably high, in fact.
A sentence of 12 months would be presumptively reasonable in this case because the guideline range is 12-18 months and the statutory maximum is 12 months. If 12 months would be presumptively reasonable (and therefore, presumptively not too high), surely anything less than 12 months is also presumptively not too high. United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008) (approving of this argument). To put it in somewhat more generic fashion, since within-guideline sentences are presumed reasonable, an above-guideline sentence is presumably not too low (though it well may be too high) and a below-guideline sentence is presumably not too high (though it may be too low). Thus, if the Government appeals an above-guideline sentence, arguing that it is too low, it should be presumed that the sentence is not too low. Conversely, if the Defendant appeals a below-guideline sentence, arguing that it is too high, it should be presumed that the sentence is not too high.
Accordingly, as a starting point in this case, the Court shall rebuttably presume that 12 months would have been reasonable and that, as a corollary, 60 days was not unreasonably high.
2. Whether the Presumption is Rebutted
As the Court discussed in its procedural reasonableness analysis, the Magistrate Judge did consider the pertinent § 3553(a) factors and did not select the sentence arbitrarily or capriciously. See supra p. 4-5; Ming Liou, 491 F.3d at 337. Thus, in order for the sentence to be substantively unreasonable, it must be true that the Magistrate Judge based the sentence on impermissible factors or gave unreasonable weight to a pertinent factor. Ming Liou, 491 F.3d at 337. This is approximately what McCord argues. First, McCord alleges that the Magistrate Judge relied overmuch on the guidelines and improperly rationalized a tighter adherence thereto based on McCord's status as an attorney. (Doc. 40, Appellant's Brief at 5-12). Second, McCord maintains that the Magistrate Judge, again because of (or at least partially because of) McCord's status as an attorney, put undue weight on the need to deter others from similar conduct. Id. at 12-15.
a. Attorney Status
McCord argues that "[n]either the statute nor the Sentencing Guidelines take[] into account [McCord's] professional status for sentencing purposes . . ." and therefore, by implication, neither should the sentencing court. Id. at 11. However:
No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.18 U.S.C. § 3661 (2012); see also U.S.S.G. § 1B1.4 (2013). Thus, the Magistrate Judge was permitted to consider McCord's "background" as an attorney "for the purpose of imposing an appropriate sentence." Id.; see also United States v. Saperstein, No.: 94-5275, 1994 U.S. App. LEXIS 36153, *5-6 (6th Cir. Dec. 19, 1994) (approving some upward departure for a lawyer's violation of 26 U.S.C. § 7203 but reversing on grounds that the district court did not consider each incremental step of the departure imposed); United States v. Barbara, 683 F.2d 164, in passim (6th Cir. 1982) (upholding a more-severe-than-otherwise sentence imposed upon a lawyer and citing other cases doing the same). Moreover, McCord's background as an attorney does, in this Court's opinion, make his offense more worthy of punishment than were he not an attorney.
McCord has consistently claimed, presumably in an attempt at mitigation, that his failure to file income tax returns for five straight years was a "product of his persistent negligence." (Doc. 40, Appellant's Brief at 15). But most people in the United States are at least peripherally aware that the government has bills and occasionally, at least once a year, expects citizens to ante-up in order to help pay them. Attorneys, who must obtain an undergraduate degree, a Juris Doctor degree, and who, therefore, typically spend 7 years at university before even attempting to pass a multi-day bar exam, are expected to (and generally do) know more about the laws and governance of the United States than the general public. Thus, it is a cringe-worthy absurdity when an attorney, who has been practicing for nearly 20 years, claims that his failure to file taxes for five-consecutive years is a matter of negligence. McCord's status as an attorney destroys his attempt to mitigate and was a perfectly reasonable thing for the Magistrate Judge to have considered.
b. Hewing Closely to the Guidelines
Taking it as established, then, that the Magistrate Judge did not err in considering McCord's professional status, the Court turns to consider whether the Magistrate Judge appeared improperly impelled to hew closely to the guidelines despite Booker and progeny. McCord notes that the Magistrate Judge said:
I do have a significant concern about the recommendation of the Probation Office that there be no jail-term imposed in this case, and I have that concern for a number of reasons. One of which is, of course, the guideline range here is a 12-months[sic] sentence and a corresponding ineligibility for probation, and so any sentence of probation would have to be a downward departure.(Doc. 40, Appellant's Brief at 5, 10) (emphasis original). Though McCord's brief quotes this passage more than once, and though he emphasizes the above-underlined passage, the Magistrate Judge said this only once and not only did he not emphasize the guidelines, if he had not been prompted by the Assistant United States Attorney to do so, it does not seem he would have discussed them in much detail at all.
THE COURT: . . . I would think it is a matter of simply hearing from yourself and from Mr. Benton and also from Mr. McCord, if he wants to address the Court, and then pronouncing sentence, unless there is something else that you think that we need to do?(Doc. 38, Sent. Tr. at 4:1-5:1).
MR. BROWN: Well, I think it is a good idea simply to to[sic] go through the guidelines calculations, as they are set forth in the Presentence Report, and make sure that we are all in accord with those calculations.
THE COURT: Okay. Well, as I understand the calculation, the guideline range is 12 to 18 months, and because the statutory maximum is 12 months, then that basically becomes the guideline. I guess "range" is the wrong word to use, but that's the guideline sentence. There is a fine range, but it is my understanding that the Probation Office has recommended no fine based on an inability to pay.
And then if probation were imposed in lieu of incarceration, I think the maximum would be five years. If there is supervised release to follow an incarceration, I believe that the maximum is one year, and then there is also a $25 special assessment.
Mr. Brown, is that how you understand it?
MR. BROWN: It is, Your Honor. Thank you.
THE COURT: Okay. And Mr. Benton, is that how you understand it?
MR. BENTON: It is, Your Honor.
In addition to the content of the transcript, one can look to the result to determine that the Magistrate Judge did not feel inappropriately compelled to follow the guidelines. The Magistrate Judge declined to fine McCord and the prison term imposed (60 days) is less than 17% of the 12-month guideline sentence in this case. If the Magistrate Judge had truly felt compelled to treat the guidelines as more than advisory, he would surely have more closely followed them and imposed a sentence closer to the guideline sentence in addition to, possibly, a guideline-range fine.
c. The Need to Deter Others
As the final part of the reasonableness analysis, the Court considers whether the Magistrate Judge erred in giving heavy weight to the need to deter others. McCord argues, "The Magistrate Judge was more focused upon fashioning a sentence designed to create a general deterrence by 'sending a message' because [McCord] is an attorney, rather than a specific deterrence that focuses upon the history and characteristic[sic] of Mr. McCord." (Doc. 40, Appellant's Brief at 14). However, the legitimacy of the need to deter others, not just the defendant, is set forth by statute:
(a) Factors To Be Considered in Imposing a Sentence.— The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—18 U.S.C. § 3553(a)(2)(B-C) (2012). In other words, the deterrence set forth in part (B) is not exclusively limited to the defendant because, if it were, part (C) would be robbed of much of its meaning. That is to say, deterring the defendant from criminal conduct and protecting the public from further crimes by the defendant go hand-in-hand. If the sentence successfully deters the defendant, the public is protected. Hence, Part B must mean deterring more than merely one particular defendant. See, e.g., United States v. Coleman, 370 F. Supp. 2d 661, 681 (S.D. Ohio 2005) (Marbley, J.) (noting the general deterrence goals of 3553(a)(2)(B)). Moreover, the fact that part (C) limits its goals to the defendant illustrates that Congress, had they wanted to similarly limit part (B)'s deterrent aims, knew the language with which to accomplish that end.
. . . .
(2) the need for the sentence imposed—
. . . .
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; . . . .
In addition, the Magistrate Judge's public deterrence analysis makes a great deal of sense. The Magistrate Judge said:
[I]t does seem to me that general deterrence is a significant issue in these kinds of cases, and I am very concerned about what message it does send to other folks in a similar situation about their need to file tax returns. If someone who has not done that for a period of five years -- and really from the point of view of being a lawyer -- can't come up with any valid excuse for not having done that, if that's a probation case, I am wondering what the failure to file a misdemeanor case is that's not a probation case?(Doc. 38, Sent. Tr. at 5:11-5:20, 17:3-17:24). In other words, the Magistrate Judge could not, without competing against restitution and McCord's already-delinquent child-support obligations, have imposed a fine. Thus, punishment options were effectively limited to probation/house arrest or imprisonment. The Magistrate Judge concluded, and this Court agrees, that, under the circumstances, probation or home confinement would have sent a bad message to the public. That is, if a potential tax-evader is out there, thinking about whether or not to cheat on her taxes, she might conclude, looking at the result for which the Defense advocates, that she should risk it. At best, she does not get caught or prosecuted and saves a lot of money. At worst, she has to return the money, and spend some time checking in with the folks in the probation department. If prison were a realistic possibility, so the argument goes, the potential criminal might think twice. While deterrence may be a relatively weak argument for crimes like methamphetamine possession (for what punishment could be worse than what meth does to you?) it has real persuasive power in the white-collar crime arena where defendants are genuinely scared of incarceration.
. . . .
If you look at the policy statement for this particular offense, the Sentencing Commission has expressed a concern that the number of people [who] are actually prosecuted for tax offenses of any sort is a very, very, very small fraction of people who actually commit tax offenses. This is just not a crime where there is an awful lot of enforcement through the criminal justice system. . . . .
But given the fact that there is[sic] an awful lot of people who never get prosecuted, if you add to that the fact that those who do get prosecuted don't get any significant punishment, then you are basically saying to the rest of the public,
it is fine, go ahead and don't file your tax returns, for example, because, A, the chances are great that you will never get caught. And if you do get caught, the chances are pretty good that you will never be prosecuted. And finally, if you are prosecuted, the chances are pretty good that other than probation and a requirement that you pay the money that you actually owe, nothing else is going to happen to you.
C. Government Argues Against its Recommendation
McCord correctly notes that the Government recommended a sentence of probation when the case was presented to the Magistrate Judge and only now, in defending the Magistrate Judge's sentence, does it argue that imprisonment was appropriate. (Compare Doc. 38, Sent. Tr. at 5:25-6:22 with Doc. 42, Appellant's Reply Brief at 4-6). However, this need not have been disingenuous, as McCord implies. It could well be that, after hearing the Magistrate Judge's reasoning and hearing him pronounce sentence, the Government concluded he was right and that 60 days incarceration was more appropriate than probation.
Moreover, McCord's basis for challenging the sentence imposed against him is the reasonableness of it. For any given defendant there are surely a number of sentences that would be reasonable. Indeed, the Sentencing Guidelines typically recommend a range of sentences - not one particular sentence. U.S.S.G. ch. 5, pt. A (2013) (Sentencing Table). Hence, just because the Government thought that probation would be a reasonable sentence at the time of sentencing does not mean that a sentence of 60 days would not also have been reasonable or that the Government is somehow constrained to oppose, as unreasonable, anything other than the sentence that it originally chose to recommend. It could be that the Government always thought that anything from probation to 90-days would have been reasonable and simply picked out one sentence, probation, within that range.
Finally, it bears mention that the Government recommending one sentence and then, upon appeal, defending a sentence other than the one it recommended, is not particularly unusual. If, for instance, the Government recommends a guideline sentence, but a court departs or varies upward and then the Defendant appeals, such a scenario usually results. See, e.g., United States v. Poynter, 344 F. App'x 171 (6th Cir. 2009) (Government, as the appellee, arguing that a 360-month sentence was reasonable having previously, as the plaintiff, recommended 235 months).
The question this Court has to answer is, "Was the Magistrate Judge's sentence of 60 days reasonable?" The answer, for reasons discussed above, is, "Yes." The Government's inconstancy, actual or illusory, is of no moment.
D. Unwarranted Sentencing Disparity
McCord, despite using the phrase in his headings, does not really argue that his 60-day sentence creates an unwarranted sentencing disparity. (Doc. 40, Appellant's Brief in passim). That is, his headings do not closely match the content of his brief sections. See, e.g., Id. at 5-12 (heading mentions sentencing disparity but body attacks Magistrate Judge's supposed overreliance upon the guidelines and impermissible focus on McCord's profession). However the Government mentions, and McCord (in his reply brief) distinguishes, a number of cases in which other violators of 26 U.S.C. § 7203 were given sentences of incarceration well in excess of the 60 days given to McCord. (Doc. 41, Appellee's Brief at 3; Doc. 42, Appellant's Reply Brief at 6-8). While most of these cases appear to have involved greater losses of money (justifying the 18, 10, and 8-month sentences) one of the cases involved a 6-month sentence where the loss was only around $40,000. (Doc. 42, Appellant's Reply Brief at 6-8). Thus, with cases sentencing at or in excess of 6 months with losses both higher and lower than the almost-$100,000 loss in McCord's case, there is no sentencing disparity problem evident here. Id.
IV. CONCLUSION
The Magistrate Judge's reasoning in this case was persuasive, appropriate, and reasonable. The judgment and sentence imposed in this case are AFFIRMED.
The Clerk is directed to REMOVE document 40 from the Court's pending matters list.
IT IS SO ORDERED.
__________
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT