holding that efforts by defendant to hide embezzled money was related to embezzlement, not tax evasion for which she was convicted
How later courts described this case
- holding that efforts by defendant to hide embezzled money was related to embezzlement, not tax evasion for which she was convicted
- reversing application of enhancement because simply not disclosing income to an accountant is not sophisticated means
- stating standard of review
- IRS agent permitted to testify as expert in calculation and compilation of income and taxes
Written by the judges who cited it.
The opinion
PATRICK E. HIGGINBOTHAM, Circuit Judge,
concurring in part and dissenting in part.
I concur in the majority’s opinion except its holding that the district court erred in adjusting the offense level because sophisticated means were used to impede discovery of the nature or extent of the offense. Whether the means of Stokes were more than the planning of a routine tax-evasion case is a close question. To me there was no misinterpretation of the legal effect of the guidelines that we ought to examine de novo. Rather, this was a judgment call of whether means used were “sophisticated.” I find no basis for upsetting this call and would affirm.
At its essence sentencing is inevitably an exercise of judgment. The guidelines guide but cannot supplant that judgment. Imposing our view in circumstances as these pretends an objective standard that does not exist. We assume a role in sentencing that Congress surely did not intend.