Attorney Sentence Properly Considered Attorney Status and Deterrence in Tax Cases

Attorney Sentence Properly Considered Attorney Status and Deterrence in Tax Cases

In United States v. McCord, 2014 U.S. Dist. LEXIS 86436 (SD OH 6/25/14), [enhanced version available to lexis.com subscribers], 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), [enhanced version available to lexis.com subscribers]; see also U.S.S.G. § 1B1.4 (2013), [enhanced version available to lexis.com subscribers]. 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), [enhanced version available to lexis.com subscribers], (approving some upward departure for a lawyer's violation of 26 U.S.C. § 7203, [enhanced version available to lexis.com subscribers], 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), [enhanced version available to lexis.com subscribers], (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.

View Jack Townsend's opinion in its entirety on the Federal Tax Crimes blog site.

For additional insight, explore Tax Crimes, authored by Jack Townsend and available at the LexisNexis® Store

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