Apple Falls from Tree (but not far)

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Apple Falls from Tree (but not far)

Postby LPC » Fri Aug 22, 2014 11:42 am

Not sure where to put this, because it's got so many different threads in it.

A man named Daniel Isiah Thody was sentenced yesterday to 90 months in prison for income tax evasion, having failed to file income tax returns for five years despite reportedly earning $1.8 million as a U.S. Department of Defense contractor. During his trial, he claimed the government had no power to tax him.

His father, Walter Eliyah Thody, is already in jail for bank robbery and other crimes, and is reportedly a racist sovereign citizen.
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Re: Apple Falls from Tree (but not far)

Postby notorial dissent » Fri Aug 22, 2014 12:30 pm

I'm shocked I tell you, shocked!!!! Well not really, but nice to see a family playing together. Looks like they are going for multi-generational here, wonder if they can work a third generation in here somewhere?

So it is alright for to take money from the gov't, but they have no power over him? Guess he found out differently.
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Re: Apple Falls from Tree (but not far)

Postby Famspear » Fri Aug 22, 2014 2:04 pm

LPC wrote:Not sure where to put this, because it's got so many different threads in it.

A man named Daniel Isiah Thody was sentenced yesterday to 90 months in prison for income tax evasion, having failed to file income tax returns for five years despite reportedly earning $1.8 million as a U.S. Department of Defense contractor. During his trial, he claimed the government had no power to tax him.


Hmmmm.... You would think that some wackos would consider working as a Defense Department contractor as exercising a "federal privilege."

This sort of reminds me of the concept, in physics, of matter and anti-matter. It's almost like having "Blowhard Hendrickson" and "Anti-Blowhard Hendrickson". The Blowhard claims that he can be taxed only if he realizes income in connection with the exercise of a federal privilege. By contrast, I wonder if Thody feels that he CANNOT be taxed if he realizes income in connection with the exercise of a federal privilege.

If you threw both of them together into a federal prison cell, would the Universe explode?

:twisted:
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Re: Apple Falls from Tree (but not far)

Postby notorial dissent » Fri Aug 22, 2014 2:40 pm

Personally I think it would implode from the vacuum of stupidity and vast lack of knowledge they both represent.
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Re: Apple Falls from Tree (but not far)

Postby Famspear » Fri Aug 22, 2014 8:04 pm

The father, 75 year old Walter Eliyah Thody, also known as “Ralph Owen Baker,” is inmate # 04511-064 at the U.S. Penitentiary at Victorville, California. He has apparently been in prison for over 20 years, and is not scheduled for release until May 4, 2026. Here’s a partial explanation of the reason why:

On July 12, 1991, Cimarron Federal Savings Association in Muskogee, Oklahoma, was robbed of more than $50,000. Two men entered the building, one carrying a briefcase and the other holding an earpiece to his ear. The man (identified later as [Walter] Thody) with the briefcase approached a teller, Doris Harshfield, opened the briefcase and revealed a police scanner. He then informed Harshfield that he was robbing Cimarron Federal and instructed her not to call the police because his companion would be monitoring the scanner. He showed Harshfield a gun tucked into his waistband, and informed her that he would use it should the scanner detect that an alarm had been activated. During the robbery both Harshfield and Stacie Dillard, another Cimarron Federal employee, complied with the robbers' demands. Harshfield and Dillard testified that they had unobstructed views of the robbers, and were in close contact with them for several minutes. Dillard also testified that she had been trained to remember the robbers' appearances. A third employee, Hadee Louise Woods, also observed the robbery and was able to observe the robbers at close enough range to give a description of their facial features and clothing.

On August 29, 1991, Cimarron Federal was again robbed by two men. They proceeded in the same manner as before, demanding money and using a police scanner. Harshfield and Woods recognized the two men from the prior robbery. Harshfield exclaimed "It's him!" when she saw one of the two men approaching her teller window. On this occasion Woods was the employee that complied with the robbers' demands and was in close enough proximity to them to give a detailed description of their facial features. One of the men showed Woods a police scanner. His only instruction to Woods when he showed her the scanner was, "This is a police scanner," to which she responded, "I know." Then he said, "Now remember, no bait money or dye packed money." Upon receiving back the briefcase filled with money, the same man said, "Now, remember, don't pull any alarm for five minutes." Similar instructions had been given to Harshfield during the July robbery. Neither man displayed a gun or otherwise indicated that he was armed.

Two other employees, Shelli Jiles and Eileen Stinson, also had clear views of the robbers from about 30 feet away. Jiles and Stinson noted that an "old blue Cutlass" with Texas tags was parked outside Cimarron Federal, and wrote down its description and license number. Woods and Harshfield also noticed the same car during the second robbery, and Woods saw the men get into it. Harshfield wrote down its license number. Harshfield's and Woods' description of the car corroborated that of Jiles and Stinson.

The robbers departed with $26,764.00. Immediately thereafter, Cimarron Federal employees called the police, reported the robbery and gave a description of the two men and the blue Cutlass along with its license number. The police dispatcher broadcast the descriptions. Several minutes later, Muskogee Police Officer Marion Bolding saw the car parked in a shopping center parking lot and also noticed two men that matched the description of the robbers walking south of the shopping center. Officer Bolding approached the men in his police car, stopped the car and told the men that he needed to talk to them. The two men ran from Officer Bolding. The officer saw one of the men, whom he later identified as Thody, pull a gun from his waistband. He then saw the two men accost a woman in the parking lot, force her out of her car and escape in the car. A high speed chase of 15-20 minutes ensued, during which the driver fired shots at the police. The chase ended only when an officer rammed the escape vehicle with his police car.

Thody and McIntosh exited the vehicle and were arrested. Two nine millimeter pistols were found in the car, a Browning on the driver's side and a Llama on the passenger side. The Browning was chamber loaded with a full clip. The Llama was found along with a clip of bullets, and was cocked and off safety. McIntosh was identified as the driver of the car; Thody was identified as the passenger. When arrested, Thody had two $500.00 bundles of $10.00 bills sticking out of his pocket. The following items were also retrieved from the car: a tearaway shirt, a clip-on tie, a briefcase containing $25,000, two wigs and a portable police scanner with an earplug……


--from United States v. Thody, 978 F.2d 625 (10th Cir. 1992).

Dad was convicted of two counts of bank robbery in violation of 18 U.S.C. § 2113(a), one count of possession of a firearm moved interstate after a felony conviction, in violation of 18 U.S.C. § 922(g) and § 924(a)(2), two counts of use of a firearm during commission of a crime in violation of 18 U.S.C. § 924(c)(1), and one count of conspiracy in violation of 18 U.S.C. § 371.

What a role model for Danny-boy!

:|
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Re: Apple Falls from Tree (but not far)

Postby Famspear » Fri Aug 22, 2014 8:53 pm

.....The Llama was found along with a clip of bullets, and was cocked and off safety....


I wonder if we should ask whether Tony the Wonder Llama is also "cocked and off safety".....

:)
...why is anyone in this [losthorizons] community paying the least attention to...'Larry Williams' [Famspear], or other purveyors of disinformation from...quatloos? – Pete Hendrickson, former inmate 15406-039, Fed’l Bureau of Prisons

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Re: Apple Falls from Tree (but not far)

Postby Famspear » Fri Aug 22, 2014 9:01 pm

....When arrested, Thody had two $500.00 bundles of $10.00 bills sticking out of his pocket.....


OK, so maybe he had an appointment with a hot babe lined up, he was supposed to meet her right after the robbery, and he thought he had figured out a way to try to reeeeeallllly impress the girl.....
...why is anyone in this [losthorizons] community paying the least attention to...'Larry Williams' [Famspear], or other purveyors of disinformation from...quatloos? – Pete Hendrickson, former inmate 15406-039, Fed’l Bureau of Prisons

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Re: Apple Falls from Tree (but not far)

Postby . » Fri Aug 22, 2014 9:36 pm

Impress the girl? Clip-on tie, of course.
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Re: Apple Falls from Tree (but not far)

Postby notorial dissent » Sat Aug 23, 2014 3:42 am

Now those are two pitiful, stupid, pathetic, incompetent bankrobbers. Rob the same place twice, get id'd both times, use the same getaway car both times, and then only get less than $100K, even for 1991 that is just pathetic.

I'd say this was probably a case of nature and nurture, nature didn't give them and the nurture finished it off. There is only so much you can do with really bone deep stupid.

Just out of morbid curiosity are they really Thodies or are they Bakers?
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Re: Apple Falls from Tree (but not far)

Postby Famspear » Tue Jun 16, 2015 5:19 am

Seventy-five year old Walter Eliyah Thody is still inmate # 04511-064, now at the Federal Correctional Institution "Victorville Medium I," at Victorville, California, and is still scheduled for release on May 4, 2026.

Forty-seven year old Daniel Isaiah Thody is inmate # 17058-040 at the Elkton Federal Correctional Institution at Lisbon, Ohio, and is scheduled for release on November 6, 2019.
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Re: Apple Falls from Tree (but not far)

Postby Jeffrey » Tue Jun 16, 2015 7:26 am

It has always bothered me that government employees pay taxes. Surely it would be simpler to make them tax exempt and lower their wages accordingly.

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Re: Apple Falls from Tree (but not far)

Postby Gregg » Tue Jun 16, 2015 1:05 pm

Jeffrey wrote:It has always bothered me that government employees pay taxes. Surely it would be simpler to make them tax exempt and lower their wages accordingly.


There would be an annoying combination of public employees whining about low pay, wage creep to make up the perceived difference and a sense of entitlement on one side and on the other regular employees would resent the tax exempt status of "overpaid, under worked, tax exempt and tenured government employees". Better just to pay them and tax them like everyone else.
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Re: Apple Falls from Tree (but not far)

Postby NYGman » Tue Jun 16, 2015 1:38 pm

Gregg wrote:
Jeffrey wrote:It has always bothered me that government employees pay taxes. Surely it would be simpler to make them tax exempt and lower their wages accordingly.


There would be an annoying combination of public employees whining about low pay, wage creep to make up the perceived difference and a sense of entitlement on one side and on the other regular employees would resent the tax exempt status of "overpaid, under worked, tax exempt and tenured government employees". Better just to pay them and tax them like everyone else.


I always thought Teachers, Law enforcement, fire department and Army salary should be tax free. Just the income associated with those activities. Investment income and any outside job would be taxed as if the tax exempt salary was taxable, so as to not ge the lower tax bracket treatment.
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Re: Apple Falls from Tree (but not far)

Postby AndyK » Tue Jun 16, 2015 1:50 pm

Plus, how much do you cut the pay?

Remember, government employees gange from Form EZ filers all the way up to complicated Schedule A.

So, if I'm supporting a 5-person family, carrying a hefty mortgage, paying real estate taxes AND a state/local income tax, how do you reconcile the base pay decrease amount with that of a single person renting an apartment.

Sorry. Just won't work.
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Re: Apple Falls from Tree (but not far)

Postby LPC » Tue Jun 16, 2015 8:43 pm

NYGman wrote:I always thought Teachers, Law enforcement, fire department and Army salary should be tax free. Just the income associated with those activities. Investment income and any outside job would be taxed as if the tax exempt salary was taxable, so as to not ge the lower tax bracket treatment.

Congratulations, you've just increased the complexity of both the Internal Revenue Code and the Form 1040 (or at least the version of the Form 1040 filed by your wage-tax exempt employees).
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Re: Apple Falls from Tree (but not far)

Postby Cpt Banjo » Tue Jun 16, 2015 9:37 pm

NYGman wrote:I always thought Teachers, Law enforcement, fire department and Army salary should be tax free.


Sometimes it is. IRC Section 112 provides that 100% of an enlisted person's pay and a portion of a commissioned officer's pay is exempt if it's received during a month in which the person served in a combat zone or was hospitalized as a result of injuries or sickness incurred while serving in a combat zone (the latter is subject to a 2-year limit following the cessation of combat activities).

True story (sorry if I've posted it before): When I was in basic training, my drill sergeant asked me to look at his income tax return. He had served in Vietnam during part of the tax year but had reported all of his pay on his return. I redid the return by excluding the pay he earned while in Nam, resulting in a hefty refund. He was real nice to me after that.
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Re: Apple Falls from Tree (but not far)

Postby NYGman » Wed Jun 17, 2015 12:25 am

And the tax laws isn't complicated already :)
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Re: Apple Falls from Tree (but not far)

Postby The Observer » Tue Jan 12, 2016 5:03 pm

UNITED STATES OF AMERICA,
Plaintiff -- Appellee
v.
DANIEL ISAIAH THODY,
Defendant -- Appellant

Release Date: JANUARY 08, 2016


IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:13-CR-153

Before DAVIS, PRADO, and SOUTHWICK, Circuit Judges.

PER CURIAM:/*/

Defendant-Appellant appeals his sentence imposed by the district court following a conviction on multiple counts of tax evasion. We VACATE the sentence and REMAND for further proceedings.

I.

Daniel Isaiah Thody contracted to make and sell airplane parts to the United States Government (Government). He then hid the income created by these sales from the IRS. Thody funneled his income, and thereby avoided reporting it to the IRS, through two corporate entities, WET Publishing (WET) and Middle Creek Construction (MCC).

The owners of WET and MCC authorized Thody to enter into Government contracts on their behalf. The airplane parts were sold pursuant to contracts between these entities and the Government, and the profits from the sales then went to the entities. Initially, Thody split the profits from the contracts with the owners. However, at some point, Chandler -- who owned MCC -- ordered Thody to stop using the MCC name. The record does not show whether MCC had contracts outstanding with the Government, at that time, whether Thody received money from these contracts, or whether Thody failed to pay Chandler any profits owed.

Thody believed he was a "sovereign citizen" not subject to federal law. He therefore believed that the Internal Revenue Code did not require him to pay taxes. The Government investigated Thody's business dealings and discovered that he concealed his income from the IRS. The Government therefore indicted him on five counts of tax evasion, and a jury convicted him on all counts.

In determining its sentence, the district court first calculated Thody's sentencing range under the Guidelines. His conviction for tax evasion established a base offense level of sixteen. The district court then applied adjustments totaling six levels: two for obstruction of justice, two for sophistication of the offense, and two for failing to identify the source of income from criminal activity. This provided a combined offense level of twenty-two, which had a corresponding sentencing range of forty-one to fifty-one months imprisonment and one to three years of supervised release.

After considering the Guidelines, the district court stated that "the guideline range is appropriate." It then imposed the following sentence:

[imprisonment] for a term of 45 months on Count
One and Two to run consecutive to each other for
a total of 90 months. And 41 months on Counts three,
four, and five to run concurrently with all other
counts . . . [Thody] shall pay restitution in the
amount of $ 162, 857 . . . And upon release from
imprisonment, [Thody] shall be placed on supervised
release for a term of three years on each of counts
one through five to run concurrently.

The court also imposed an employment restriction on his supervised release, prohibiting Thody from entering into contracts with the Government.

Thody now appeals this sentence arguing that it was not warranted by statute, or alternatively, that it was not reasonable.

II.

Thody first argues that his sentence was not authorized by statute. His sentence consisted of three parts: imprisonment, restitution, and supervised release. Each is discussed below:

A.

We first evaluate whether the district court had statutory authority to impose consecutive sentences on counts one and two. We review de novo whether the district court imposed an illegal sentence. 1

The statutory maximum sentence on a single count of tax evasion is sixty months. 2 However, 18 U.S.C. section 3584 gives the district court discretion to order consecutive sentences on multiple counts of conviction. 3 In particular, it authorizes that on multiple counts "the terms may run concurrently or consecutively." 4 Therefore, under 18 U.S.C. section 3584, the district court had discretion to impose ninety-months of imprisonment by ordering consecutive terms of forty-five months on two counts of conviction.

B.

Thody also argues, and the Government concedes, that the district court improperly ordered restitution as a part of his tax evasion sentence. We have held that restitution cannot be imposed as part of a tax evasion sentence. 5 Although the district court may order restitution as a condition of supervised release, it may do so only if the defendant admits the amount of the tax liability or the Government establishes the amount of the tax liability at trial. 6 As both parties recognize, the district erred when it imposed restitution as a part of Thody's sentence for tax evasion, and we vacate that portion of the sentence. Nonetheless, we remand to allow the district court to consider whether to impose restitution as a condition of supervised release.

C.

Finally, Thody argues that the district court lacked authority to prohibit him from contracting with the Government as a condition of his supervised release. Thody asserts that this occupational restriction is neither reasonably related to tax evasion nor necessary to protect the public. We review conditions on supervised release for an abuse of discretion. 7

A district court has discretion to impose conditions on supervised release, but only if the condition is reasonably related to: the nature and circumstances of the offense, the need to afford adequate deterrence, the need to protect the public from future crimes, and the need to provide treatment to a defendant. 8 Moreover, if a condition is required, it must be imposed to the "minimum extent necessary." 9

Restricting Thody from entering into Government contracts meets none of these criteria. The employment restriction is not reasonably related to Thody's offense of tax evasion. The restriction necessarily focuses on how Thody earns income, whereas his conviction had nothing to do with the source of Thody's income or how he earned it. Instead, tax evasion related to his fraudulent refusal to pay taxes on his earnings. Moreover, the restriction is not needed to protect the public from further tax evasion by Thody. The restriction cannot impede him from fraudulently failing to pay his taxes -- Thody might refuse to pay taxes on his income, regardless of the source of that income. Thus, we must vacate the district court order to the extent it imposes this employment restriction as a condition of supervised release.

III.

Thody also argues that the district court's sentence is not reasonable. Procedural reasonableness requires that the district court properly calculate the Guidelines range, consider the factors in 18 U.S.C. section 3553(a), and adequately explain its sentence. 10 Thody asserts that the district court neither adequately explained its reasons for its sentence nor properly calculated his Guidelines range.

A.

Thody argues that the district court did not adequately explain its reasons for its sentence. Because Thody did not contemporaneously object to the district court's explanation at trial, we review for plain error. 11 An error is plain only if it (1) was clear, (2) affected a defendant's substantial right, and (3) seriously affected the fairness, integrity, and public reputation of the proceeding. 12

Thody contends that the district court erred when it failed to explain its reasons in a written statement. We disagree. We do not impose such formulaic rules on the district court: an explanation may be given in open court, a written judgment, or in a statement of reasons. 13 The purpose of an explanation is to allow for meaningful appellate review and to promote the perception of fair sentencing. 14 Accordingly a transcript of oral statements allows for thorough review just as a written statement would.

Alternatively, Thody makes a conclusory statement that the oral reasons for his sentence were inadequate. The degree of explanation that a district court must give will depend on the type of sentence. 15 A within-Guidelines sentence requires little explanation. 16 However, a non-Guidelines sentence requires more. 17 If the district court imposed a non-Guidelines sentence, it must articulate its reasons based on the statutory factors of 18 U.S.C. section 3553(a). 18

Here, the district court imposed a non-Guideline sentence. The Guidelines, with exceptions not here relevant, require that a sentence on multiple counts run concurrently. 19 In this case, when the district court imposed a ninety-month sentence, by imposing two terms of forty-five months to run consecutively, it varied from the Guidelines recommendation of a forty-one to fifty-one month sentence.

Because it imposed a non-Guidelines sentence, the district court needed to provide a more detailed explanation of its reasoning. The court gave the following reasons:

the defendant is a person that questions and challenges
the jurisdiction of the Court, [and] does not acknowledge
the validity of the statute of which he was convicted
of. [Therefore][,] [w]ithout an adequate and
sufficient sentence, the defendant will not be deterred
and will continue his unlawful activities in an identical
or similar fashion.

The district court's reasons adequately explained the basis for Thody's sentence. First, the court explained that Thody's sovereign citizen beliefs caused him to reject federal law and also reject the notion that it applied to him. Second, because Thody continued to believe that federal taxes were voluntary, the district court explained that an above-guideline sentence was needed to motivate him to pay taxes in the future. Thus, even applying the more burdensome standard of a non-Guideline sentence, under plain error review, the district court gave an adequate explanation.

B.

Thody next argues that the court should not have adjusted his offense level based on section 2T1.1(b)(1). 20 This Guideline requires a two-level adjustment "[i]f the defendant failed to report or to correctly identify the source of income exceeding $ 10,000 in any year from criminal activity." 21 Generally, "criminal activity" is any conduct that is an offense under federal or state law. 22

The Government argued on appeal that Thody procured his income by defrauding Chandler through either identification fraud or wire fraud by continuing to use the MCC name to acquire Government contracts after Chandler withdrew his consent for this practice. 23 Identification fraud requires using the identification of another without authority to commit an unlawful act. 24 Similarly, wire fraud requires a scheme to defraud, the use of wire communications, and a specific intent to defraud. 25 The record does not support this argument because the Government presented insufficient evidence to establish that Thody defrauded Chandler. Chandler testified that he withdrew consent from Thody to use the MCC name. But he did not specify when this occurred; whether MCC still had contracts outstanding with the Government; or if contracts were outstanding, whether Thody deprived him of any profits. Thus, insufficient evidence exists to show that Thody defrauded Chandler by using the MCC name, and the court erred in applying this adjustment.

An incorrect Guidelines calculation, including an improper adjustment, "will usually invalidate a sentence." 26 If the district court makes such a procedural error, we must remand for resentencing unless the error was harmless. 27 An error is harmless only if it "did not affect the district court's selection of the sentence imposed." 28 Here, the two-point adjustment for failure to report income from criminal activity may well have affected the district court's sentence. The district court purported to make a sentence consistent with "the guideline range." Moreover, to calculate the guideline range, it relied on the two-level adjustment for criminal income. Without the two-level adjustment, the Guideline range would have been thirty-three to forty-one months, and therefore, the district court may not have imposed the sentence that it did. Accordingly, we must vacate the sentence to this extent and remand for resentencing.

IV.

For the above reasons, we VACATE the sentence and REMAND for resentencing for the district court to: (1) remove the employment restriction as a condition of Thody's supervised release, (2) reconsider whether restitution should be imposed as a condition of Thody's supervised release, and (3) reconsider its sentence without application of the two-level adjustment under section 2T1.1(b)(1).

//*//

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.


FOOTNOTES:

/1/ See United States v. Nolen, 472 F.3d 362, 382 n.52 (5th Cir. 2006) ("[A]n illegal sentence always constitutes plain error.").

/2/ 26 U.S.C. section 7201.

/3/ 18 U.S.C. section 3584(a).; see, e.g., United States v. Simpson, 796 F.3d 548, 557 (5th Cir. 2015) ("[T]he district court acted within its discretion in imposing consecutive sentences for [multiple counts].").

/4/ 18 U.S.C. section 3584.

/5/ Nolen, 472 F.3d at 382 ("Restitution is not allowed under section 3663 as part of the sentence in a federal tax evasion case.").

/6/ United States v. Smith, 430 F. App'x 357, 358 (5th Cir. 2011).

/7/ United States v. Coenen, 135 F.3d 938, 940 (5th Cir. 1998).

/8/ United States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009) (citing 18 U.S.C. section 3583 (d)); United States v. Paul, 274 F.3d 155, 164 (5th Cir. 2001).

/9/ U.S. Sentencing Guidelines Manual section 5F1.5(b).

/10/ United States v. Rhine, 637 F.3d 525, 527 (5th Cir. 2011).

/11/ United States v. Ferguson, 369 F.3d 847, 849 (5th Cir. 2004); see also United States v. Lopez-Velasquez, 536 F.3d 804, 806 (5th Cir. 2014).

/12/ United States v. Andino-Ortega, 608 F.3d 305, 309 (5th Cir. 2010).

/13/ See 18 U.S.C. section 3553(c) ("The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence." (emphasis added)); United States v. Powell, 402 F. App'x 930, 932 (5th Cir. 2010) (noting that there was a "lack of reasonsin the written judgment."); United States v. Gonzalez, 445 F.3d 815, 820 (5th Cir. 2006) (explaining that both the explanations made "in open court and in its statement of reasons, satisfied the requirements of section 3553(c)(2).").

/14/ Gall v. United States, 552 U.S. 38, 50 (2007).

/15/ See United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).

/16/ United States v. Mondrago-Santiago, 564 F.3d 357, 362 (5th Cir. 2009).

/17/ See United States v. Peterson, 552 F. App'x 389, 392 (5th Cir. 2014).

/18/ United States v. Fraga, 704 F.3d 432, 438-49 (5th Cir. 2014).

/19/ U.S. Sentencing Guidelines Manual section 5G1.2; see, e.g., United States v. Johns, 732 F.3d 736, 738-39 (7th Cir. 2013) ("[T]he guideline range [was] 97 to 121 months" but "[t]he court imposed an above-guidelines range sentence: 120 months concurrent on Counts One and Two, and 40 months consecutive on Count Three, for a total of 160 months." (emphasis added)); see also United States v. Nikolovski, 565 F. App'x 397, 400, 403 (6th Cir. 2014) (considering a sentence with "a total imprisonment of 216 months" when the "advisory guideline range was 87 to 108 months" the appellate court explained that "a [district] court may vary upward . . . by imposing a substantive sentence that exceeds the guidelines range or by having the sentence run consecutively" (emphasis added)); cf. United States v. Aguilar-Martinez, 405 F. App'x 812, 813 (5th Cir. 2010) (noting that "the 14-month consecutivesentence falls squarely within the bounds of the eight to 14-month Guideline range.").

/20/ We review application of section 2Tb1.1(b)(1) for clear error. United States v. Heard, 709 F.3d 413, 423 (5th Cir. 2013).

/21/ U.S. Sentencing Guidelines Manual section 2T1.1(b)(1).

/22/ Id. at cmt. n.4.

/23/ The district court held that Thody failed to report income from criminal activity because of his underlying offense of tax evasion. However, the government abandoned this argument on appeal. And rightly so because, as recognized by our sister circuit, tax evasion may not serve as the "criminal activity" that justifies the enhancement. See United States v. Ford, 988 F.2d 347, 350 (9th Cir. 1993); United States v. Ladum, 141 F.3d 1328, 1342-43 (9th Cir. 1998).

/24/ 18 U.S.C. section 1028(a)(7); see also United States v. Pejouhesh, 603 F. App'x 347, 348 (5th Cir. 2015).

/25/ 18 U.S.C. section 1343; see also United States v. Benns, 740 F.3d 370, 375 (5th Cir. 2014).

/26/ United States v. Ibarra-Luna, 628 F.3d 712, 717 (5th Cir. 2010).

/27/ United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir. 2009).

/28/ Id. (quoting Williams v. United States, 503 U.S. 193, 203 (1992)).
"I could be dead wrong on this" - Irwin Schiff

"Do you realize I may even be delusional with respect to my income tax beliefs? " - Irwin Schiff

Famspear
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Posts: 7179
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Re: Apple Falls from Tree (but not far)

Postby Famspear » Tue Jan 12, 2016 9:49 pm

I am tho ek-thited to hear that Mithter Thody will be re-thententh'd, that I think I'll dwink an eyeth cold thody pop.
...why is anyone in this [losthorizons] community paying the least attention to...'Larry Williams' [Famspear], or other purveyors of disinformation from...quatloos? – Pete Hendrickson, former inmate 15406-039, Fed’l Bureau of Prisons

Burnaby49
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Re: Apple Falls from Tree (but not far)

Postby Burnaby49 » Tue Jan 12, 2016 10:21 pm

Famspear wrote:I am tho ek-thited to hear that Mithter Thody will be re-thententh'd, that I think I'll dwink an eyeth cold thody pop.


Whoa, hold on there buddy! What's next after the thody pop? A flavoured mineral water? Don't go there. Do you want your wife having to hold an intervention after she finds the cases of Gatorade stashed under the old tires in the garage?
"Yes Burnaby49, I do in fact believe all process servers are peace officers. I've good reason to believe so." Robert Menard in his May 28, 2015 video "Process Servers".

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