Attorney Sentence Properly Considered Attorney Status and Deterrence in Tax Cases (7/3/14)

In United States v. McCord, 2014 U.S. Dist. LEXIS 86436 (SD OH 6/25/14) [no link available], the defendant, an attorney, was sentenced by a Magistrate Judge to 60-days incarceration and 1-year of supervised release.  The defendant appealed to the District Judge, alleging various grounds on why the sentence was too harsh.  In one ground, he urged that the Magistrate Judge improperly considered his profession as an attorney in sentencing; in another ground, he urged that the Magistrate Judge improperly considered deterrence of others.  The district judge rejected all of the claims, along with his other arguments.  Here is what the district court said about the two claims specified:

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. 

* * * * 

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—
. . . .
(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; . . . . 

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. 

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? 

. . . . 

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. 

(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.