Thursday, January 7, 2016

Hawaii Businessman Sentenced to 46 Months (1/7/16)

I have written before on the conviction of Hawaii businessman, Albert S.N. Hee.  See After Guilty Verdict, District Court Denies Motions for Dismissal and New Trial in Tax Crimes Case (Federal Tax Crimes Blog 11/13 /15; 11/15/15), here, and Court Holds that Civil Agent Did Not Continue Investigation Too Long and Even If Deceptive Did Not Prejudice Defendant (Federal Tax Crimes Blog 5/2/15), here.  As I noted in one of the blogs, the jury convicted Hee of one count of tax obstruction, § 7212(a), here, and 6 counts of tax perjury, § 7206(1), here.

DOJ Tax has announced here his sentencing to 46 months in prison.  The actual sentence served will be subject to mitigation under the good time credit (about 15%).

It is not clear what the guidelines calculation was.  It is interesting that, based on a rough and ready guidelines calculation assuming restitution equal to the tax loss (the primary driver of the guidelines calculations), the Base Offense Level would be 18 and, even with some adjustments, it is not likely the offense level for applying the sentencing table was in excess of 23.  An offense level of 23 has a sentencing range of 46-57 months.  So, it is possible that the judge could have given a bottom of the range guidelines sentence.  (Readers will note that there is considerable uncertainty in this calculation, particularly the assumption that the restitution amount equaled the tax loss used in the calculations, and thus the conclusion.)

It is interesting to note that, had he pled rather than go to trial, he could have certainly pled to only one or two felony counts and, assuming 23 was his final offense level as speculated in the prior paragraph, with the acceptance of responsibility 3-level downward adjustment, his offense level would have been 30 with an indicated guidelines range of 33-41 and with a good shot at a Booker downward variance.  (The variance too is speculation but a good acceptance of responsibility often sets the judge up to make a downward variance in tax convictions; again speculating, a plea might have result in a sentence less than half that given after trial.)

The links guidelines tables are:  §2T4.1.Tax Table, here, and 5A Sentencing Table here.

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