     Case: 18-30498    Document: 00514894783     Page: 1   Date Filed: 03/29/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                  No. 18-30498                   United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                                                                   March 29, 2019
UNITED STATES OF AMERICA,
                                                                   Lyle W. Cayce
             Plaintiff - Appellant                                      Clerk


v.

CRAIG A. TAFFARO,

             Defendant - Appellee




                 Appeal from the United States District Court
                    for the Eastern District of Louisiana


Before CLEMENT, OWEN, and HO, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      Craig Taffaro was convicted by a jury of several counts of tax evasion and
filing false income tax returns. Based on his total offense level, the Presentence
Report (“PSR”) calculated a guidelines imprisonment range of 27 to 33 months.
The district court varied downward from the guidelines and sentenced Taffaro
to 60 months’ probation and assessed a fine. The government appealed the
sentence as substantively unreasonable. Finding its arguments unpersuasive,
we affirm.
      “The standard of review on a challenge to the substantive reasonableness
of a sentence is abuse of discretion.” United States v. Broussard, 882 F.3d 104,
112 (5th Cir. 2018). “Appellate review is highly deferential as the sentencing
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judge is in a superior position to find facts and judge their import . . . with
respect to a particular defendant. An appeals court may not require
‘extraordinary circumstances’ to justify a sentence outside the guidelines
range.” United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008)
(internal citation omitted). “The fact that the appellate court might reasonably
have concluded that a different sentence was appropriate is insufficient to
justify reversal of the district court.” Gall v. United States, 552 U.S. 38, 51, 128
(2007).
      This court recently had occasion to explore the outer bounds of district
court discretion in departing downward to award probation to white-collar
criminals for whom the guidelines recommend incarceration. United States v.
Hoffman, 901 F.3d 523 (5th Cir. 2018). Over a strenuous dissent, this court
concluded that a district court abused its discretion in sentencing a man to 60
months’ probation when the guidelines recommended a range of 168 to 210
months of incarceration. See id. Besides the “colossal” gap “between the . . .
recommended . . . range . . . and the [sentence] . . . received,” this court focused
on the fact that the perpetrator of the crime was “the leader of a sophisticated,
multimillion dollar fraud scheme” with a prior “criminal history.” Id. at 555–
58. In that same case, this court affirmed a 36-month probationary sentence
for a different defendant for whom the guidelines “recommended a prison term
of 46 to 57 months.” Id. at 559–60.
      The guidelines recommended a custodial term of 27 to 33 months for
Taffaro—making the district court’s departure significantly smaller than the
departure that was actually upheld in Hoffman. See id. Taffaro also has no
prior criminal history and acted alone—on a significantly smaller scale than
the defendant whose probationary sentence was overturned. Further, the
district court decided that, even considering the public interest in deterrence,
Taffaro’s age, physical condition, family responsibilities, charitable activity,
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work as a law enforcement officer, and voluntary service in the military during
the Vietnam era deserved weight. Given these considered factors and our
recent caselaw, nothing that the government has presented convinces us that
the district court abused its discretion. 1 AFFIRMED.




       1Indeed, at times the government’s characterization of the record strays toward the
disingenuous. The only support for its assertion that the district court “gave significant
weight to . . . irrelevant and improper factors” (emphasis added) are citations to musings that
occurred “before” the district court began to “impose sentence.” Any ambiguity about whether
these musings significantly weighed on the downward departure is erased by the district
court’s actual explanation for its departure—which includes no mention of these
considerations. The government should be cautious before making arguments that might
jeopardize its reputation.
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                                    No. 18-30498
JAMES C. HO, Circuit Judge, concurring in the judgment:

      Nothing is more corrosive to public confidence in our criminal justice
system than the perception that there are two different legal standards—one
for the powerful, the popular, and the well-connected, and another for everyone
else. I fear that the sentence awarded in this case—probation only, no prison
time, despite multiple acts of tax evasion and false tax returns across a twelve-
year period—will only further fuel public cynicism and distrust of our
institutions of government.
      Under the federal Sentencing Guidelines, the defendant here was subject
to a guidelines imprisonment range of 27 to 33 months. To gain leniency, he
boasted that, as the longtime Chief Deputy of the Jefferson Parish Sheriff’s
Office—the primary law enforcement and tax collecting agency in Jefferson
Parish and the largest sheriff’s office in Louisiana—he has enjoyed an
otherwise “unblemished” record of public service (that is, other than his twelve
years of unabashed pillaging of the public treasury). He also secured letters of
support from prominent state and local officials and other members of the
community. The district court granted the request for leniency and reduced
his sentence to five years of probation and a fine.              The government,
understandably, appealed.
      As our panel observes today, established precedents require us to apply
a strong measure of deference to district courts when it comes to appellate
review of criminal sentencing decisions. See, e.g., United States v. Hoffman,
901 F.3d 523, 560 (5th Cir. 2018) (“We defer to both upward and downward
variances so long as the district court provides an explanation tailored to the
statutory   sentencing    factors    that   is   not   outside   the   bounds     of
reasonableness.”).
      So I have no quarrel with my distinguished colleagues, who are only
dutifully following the legal precedents that all court of appeals judges must
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                                      No. 18-30498
obey. Likewise, the district judge who issued this sentence, and to whom we
owe significant deference under established precedents, is among the most
experienced and respected in our circuit.
      But deference need not mask disagreement.                The defendant was
convicted on six counts of tax evasion, five counts of filing a false tax return,
and one count of failing to file a tax return. Yet he will serve no prison time.
This despite the fact that he filed false tax returns, not once, but every year for
twelve years.     Among other things, he claimed a series of brazenly false
business     expense    deductions—ignoring      repeated      warnings    from   his
accountant—including:
      • an Alaskan cruise with his wife and friends;
      • his uniform, firearms, training, and first responder equipment—even
           though they were all provided to him, free of charge, by the Jefferson
           Parish Sheriff’s Office;
      • expenses associated with driving approximately 80,000 miles,
           allegedly for business purposes, on his two co-owned cars—even
           though the odometers on his two cars reflected a combined total
           mileage of less than 40,000 miles.
As a result, he deprived the public treasury of nearly a quarter million dollars
(perhaps he would have taken even more, but he was limited by the amount of
his actual tax liability).
      These are not the acts of a faithful public servant. What’s more, imagine
an ordinary citizen of Louisiana—one without the power and connections that
come with holding powerful office—had defrauded the United States of nearly




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a quarter million dollars. Would that person have received zero prison time as
well? 1
          During the defendant’s sentencing hearing, the district judge observed
that “the public is fed up with politicians and people in public life who cut
corners at the expense of the public.” I concur.




          See, e.g., United States v. Phelps, 478 F.3d 680, 681 (5th Cir. 2007) (36 months
          1

imprisonment for conspiracy to defraud the United States, amounting to a total tax loss of
$80,463.64); United States v. Salerno, 210 F. App’x 173, 174 (3rd Cir. 2006) (21 months
imprisonment for tax fraud, amounting to a total tax loss of $152,501); United States v. Long,
183 F. App’x 182 (3rd Cir. 2006) (18 months imprisonment for tax fraud, amounting to a total
tax loss of $104,837); United States v. Utecht, 238 F.3d 882, 886 (7th Cir. 2001) (36 months
imprisonment for making false statements on his tax returns, amounting to a total tax loss
of $120,769.09); see also United States v. Bolton, 908 F.3d 75, 94–95 (5th Cir. 2018) (45
months imprisonment for tax evasion by chief deputy sheriff of the Forrest County Sheriff’s
Office in Hattiesburg, Mississippi, amounting to a total tax loss of $145,849.78).
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