                                                                              FILED
                           NOT FOR PUBLICATION                                SEP 17 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10462

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00596-GMN-
                                                 GWF-1
  v.

PAUL WOMMER,                                     MEMORANDUM*

              Defendant - Appellant.


                  Appeal from the United States District Court
                           for the District of Nevada
                Gloria M. Navarro, Chief District Judge, Presiding

                     Argued and Submitted September 8, 2014
                            San Francisco, California

Before: BEA, IKUTA, and HURWITZ, Circuit Judges.

       Paul Wommer appeals his convictions and sentence for illegal structuring of

financial transactions to evade reporting requirements, tax evasion, and making and

subscribing a false return to the IRS. We have jurisdiction under 28 U.S.C. §

1291, and affirm in part, reverse in part, and remand for resentencing.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Wommer’s tax evasion conviction was based only on his failure to pay the

interest and penalties imposed on the principal of his delinquent taxes, as he had

paid off the principal but refused to pay interest and penalties. Wommer primarily

argues that interest and penalties are not “taxes” for the purposes of tax evasion

under 26 U.S.C. § 7201. We disagree. Several provisions define “tax” to include

penalties and interest. See, e.g., 26 U.S.C. § 6665(a)(2) (“[A]ny reference in this

title to ‘tax’ imposed by this title shall be deemed also to refer to the additions to

the tax, additional amounts, and penalties provided by this chapter [Subtitle F,

Chapter 68].”); see also 26 U.S.C. § 6601(e); 26 U.S.C. § 6671(a). We distinguish

the non-binding Fifth Circuit decision Wommer relies upon, United States v.

Wright, 211 F.3d 233 (5th Cir. 2000). Any suggestion in Wright that “tax” does

not include interest and penalties was dictum and based in part on sentencing

guidelines that have since been amended.

      We conclude, however, that the district court’s application of

U.S.S.G. § 2S1.3(b)(2)’s two-level enhancement to Wommer was in error. The

enhancement requires the offense to be “part of a pattern of unlawful activity

involving more than $100,000 in a 12-month period.” § 2S1.3(b)(2) (emphasis

added). Wommer’s illegal structuring certainly qualifies as a “pattern of unlawful

activity,” but he withdrew only $72,500, and caused $66,200 from those same

withdrawals to be deposited. Therefore, only $72,500 is involved here and the
district court erred by adding $72,500 and $66,200 together to reach the $100,000

threshold to apply § 2S1.3(b)(2)’s enhancement. However, the district court

correctly denied a downward adjustment under U.S.S.G. § 2S1.3(b)(3), which

requires the funds to have been used for a lawful purpose, as Wommer used the

funds to evade taxes.

      As for Wommer's remaining claims, we conclude that none provides a basis

for reversing the district court's rulings below.1 We therefore affirm in part,




      1
         Specifically, the district court properly denied Wommer’s Brady, Jencks
Act, and prosecutorial conduct claims based on its determination that Agent Rice’s
testimony was inculpatory, rather than exculpatory, a copy of his testimony had
been timely provided to Wommer, and there was no support for the claim that
Agent Rice’s testimony before the grand jury was misleading. The district court
did not plainly err in considering letters from Wommer’s former clients at
sentencing because Wommer failed to establish the letters were “false or
unreliable” or that they “demonstrably made the basis for the sentence.” United
States v. Vanderwerfhorst, 576 F.3d 929, 935–36 (9th Cir. 2009). The
“exculpatory no” doctrine does not aid Wommer because the Supreme Court has
abrogated it. Brogan v. United States, 522 U.S. 398, 408 (1998). The forfeiture
imposed was not grossly disproportionate to the gravity of Wommer’s offense
under the four-factor test articulated in United States v. $100,348.00 in U.S.
Currency, 354 F.3d 1110, 1121–22 (9th Cir. 2004). The district court did not
clearly err in denying Wommer an acceptance of responsibility sentencing
reduction under U.S.S.G. § 3E1.1(a) based on its factual determination that
Wommer was sorry he was caught rather than genuinely remorseful. See United
States v. Innie, 7 F.3d 840, 847–48 (9th Cir. 1993). The district court did not
clearly err in rejecting Wommer’s diminished capacity defense to his conviction in
light of his legal career after his accident, and we do not review whether its
decision not to depart downward on that basis was error. United States v.
Vasquez-Cruz, 692 F.3d 1001, 1008 (9th Cir. 2012).
reverse in part, and remand for resentencing in a manner consistent with this

decision.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

FOR RESENTENCING.
