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Click here for the full text of this decision FACTS:IRS Form 8830 is to be filed when an individual receives over $10,000 in cash in trade or business. Twin brothers Samuel and Saul Saldana began filing false 8300s against individuals, judges and lawyers with whom they had various complaints. In the spaces provided to state how much cash was received, the brothers would sometimes leave the spaces blank, sometimes fill in $10,000, and then sometimes put down a nonsensical number like “$213 quintillion” or “$1,955,000,000,000,000. Though the people implicated in the 8300s Saul filed had not met him before, they had all been involved in notifying him about a tax obligation, assessing a fine or penalty on behalf of the government, or representing entities trying to impose fines or penalties. The 8300s Samuel filed targeted judges and attorneys who were involved in proceedings against him and people against whom he held grudges. The government indicted both Samuel and Saul for violating 26 U.S.C. 7212(a), which prohibits the enforcement of internal revenue laws coorruptly or by force. The government brought 12 additional counts against Saul and 16 additional counts against Samuel for filing false statements in violation of 18 U.S.C. 1001(a)(3). At their different jury trials, Saul argued that he had filed the 8300s in good faith after learning about using such a tactic at a tax course he attended. He called the process “redemption,” or “charge-back,” and he attempted to introduce into evidence a few black notebooks that he claimed explained the process. The trial court denied his request. One of Saul’s acquaintances said he had used the tactic, too, when he was on trial for narcotics trafficking. He said the purpose was to get the trial judge to “back off” of his case. An IRS agent testified that several hundred hours of IRS time were taken up investigating the false filings. The subjects of the reports testified about the time and anxiety caused by worrying about whether the IRS would audit them; none had been audited, however. At Samuel’s trial, the same IRS agent testified about the manpower used to investigate the 8300s. He also identified Samuel as an anti-government tax protester who used the 8300s to retaliate, intimidate and harass the people named in the forms. The mother of Samuel’s children testified that Samuel threatened to get the IRS after her if she sought custody of the kids; she also testified to hearing Samuel say that the public officials involved in their custody case would “get theirs.” The brothers were convicted on all counts. The trial court sentenced Saul to a six-month term of confinement on each count. Four counts were to be served consecutively, and nine counts were to run concurrently, resulting in a 24-month incarceration period. The other trial court sentenced Samuel to 10-months for each count: six to run consecutively, and 11 to run concurrently, for a total of 60 months in prison. The brothers’ cases were consolidated for appeal. They both challenge their convictions and their sentences. Additionally, Saul complains of the trial court’s refusal to admit the black notebook into evidence. HOLDING:Affirmed. The court describes Saul’s black notebooks as “plastic three-ring binders containing a random assortment of Xerox copies of statutes, cases, printed-out e-mails, banking and credit card instructions, and various bizarre papers, such as a chart illustrating the”Diogenes Historical Society’ contrast of”Our Creator’s Law’ and”Man’s Legal System,’ a copy of the Communist Manifesto, a comic strip, and a description of the movie, The Matrix.” “Redemption Process” is hand-written on the notebooks’ covers. The court finds the notebooks were inadmissible hearsay, since they sought to prove the truth of the matter asserted. But even if they were not, their probative value was slight in light of other testimony. Plus, their unprofessional appearance actually undermines Saul’s argument that he truly believed that he was engaging in a legitimate legal process by filing the forms. The court acknowledges that 7212(a) does not define “corruptly.” The trial court instructed the jury that to act “corruptly” meant that the defendant acted knowingly and dishonestly with the specific intent to secure an unlawful benefit for himself or others. Though the brothers offer their own definition that the defendant sought an unfair benefit or advantage under the tax laws the court points out that they did not object to the trial court’s definition. Consequently, the court reviews the issue for plain error. The court finds the case cited by the brothers in support of their interpretation, United States v. Reeves, 782 F.2d 1323 (5th Cir. 1986), does just the opposite. The case, as well as its predecessor case, United States v. Reeves (Reeves I), 752 F.2d 995 (5th Cir. 1985), did not require the unlawful benefit the defendant wanted to be a benefit under the tax laws. The statute itself does not require the benefit inured to the defendant to be one under the tax laws, either. The district court did not err, much less plainly err, in giving the instruction that it did. Having affirmed the brothers’ convictions, the court then turns to ascertain whether the sentences violated United States v. Booker, 125 S.Ct. 738 (2005), or whether the upward departures imposed by the district court were unreasonable. First, as to Saul, the court says that it is clear that, after Booker, the district court committed plain error when it departed upward on Saul’s sentence and did so based on facts not admitted by the defendant or found by the jury. Nonetheless, Saul cannot show that such error affected his substantial rights. Consequently, the sentence is acceptable in this case. The court examines the district court’s upward departure in letting four of the terms run consecutively. In an oral ruling, the district court said it was doing so because of the number of times he had committed the crimes. In a written ruling, the district court said the presentence report did not adequately address the harm caused by Saul’s multiple filings, which resulted in a “legal stoppage.” In the ordinary circumstance, a district court may adjust an offense level upward under certain sections of the sentencing guidelines (even though the guidelines are no longer mandatory) for multiple count convictions to account for the greater harm but the relevant guideline in this case did not provide such an adjustment. Nonetheless, when a defendant like Saul has been convicted of as many as 13 separate counts, and the grouping rules of the guidelines do not permit for any sort of enhancement in a defendant’s punishment based on the harm or number of counts included, the district court does not abuse its discretion when it upwardly departs on this basis. “The district court properly relied on evidence presented at trial and in the PSR in making its factual determinations, namely, the number of counts and the fact that Saul’s behavior caused greater aggravation and harm than the typical defendant sentenced under U.S.S.G. 2T1.1. . . . Accordingly, the decision to upwardly depart was reasonable.” Turning, then, to whether the sentence as a whole was reasonable, the court finds that, even though the upward departure went up seven levels, which “approaches the outer boundary of reasonableness,” the sentence was not unreasonable. “The sentence does overstate the degree of harm, does not appear to advance the goal of uniformity, and does over-compensate for the number of counts, but each of these was a permissible reason for the district court to depart from the Guidelines’ range and, taken together, would likely justify a sentence at least within striking distance of that imposed by the district court. Given the deference we owe to the district court that has properly applied the Guidelines, we decline to hold the degree of the departure unreasonable. Accordingly, the district court did not abuse its discretion in imposing Saul’s sentence, and we therefore affirm it.” Next, the court looks at the sentence imposed on Samuel. The court points out that there was Booker error in this case, too, but the district court said it would impose the same sentence on Samuel regardless of whether Booker applied or not, so it is clear the error did not affect the outcome of the sentencing proceedings. As for the upward departures in Samuel’s sentence, the court notes the similarity in reasoning as applied to Saul: that a stiffer penalty was necessary to promote deterrence and respect for the law, and to acknowledge the seriousness of the offense. The court again finds the amount of the departure to be “close to the outer limits of reasonableness,” but, as in Saul’s case, when taken together for with the district court’s reasons for using an upward departure, the sentence, as a whole, was not unreasonable. OPINION:Wiener Jr., J.; Jones, Wiener and Clement, JJ.

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