Judge Richard Arcara
Gerace, who pleaded guilty to tax evasion violating 26 USC §7201, faced a maximum of five years in prison, a $250,000 fine and three years of supervision. In addition to $175,710 in restitution to the IRS, he was sentenced to 21 months in prison. District court denied Gerace’s motion to stay sentence pending appeal under 18 USC §3143(B). The plea agreement’s appeal waiver provision stated that Gerace waived his right to appeal sentence within or lesser than Paragraph 13′s two potential ranges of 12 to 18 months or 18 to 24 months. Gerace’s 21-month sentence was within the higher specified range. Moreover, even if he had not waived right to appeal, Gerace could not show appeal was likely to result in a sentence lacking prison time or shorter than his appeal’s duration. Noting that Gerace hid more than $500,000, created false records, and purposefully concealed or destroyed evidence, the court found that a 21-month term was required to provide just punishment and act as a deterrent. Thus, even if Gerace’s appeal was successful and his guideline range became 12 to 18 months, it was the court’s judgment that a 21-month term was the least sufficient, reasonable sentence considering the seriousness of his tax fraud.
