                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                     August 12, 2011
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                        Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 10-4092
          v.                                             (D. of Utah)
 ROY B. HOSKINS,                                 (D.C. No. 08-CR-277-DB-1)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, TYMKOVICH, and GORSUCH, Circuit
Judges.


      Roy Hoskins pleaded guilty to two counts of tax evasion, in violation of 26

U.S.C. § 7201, for attempting to evade taxes on income earned from his escort

service. The district court sentenced Hoskins to 60 months’ imprisonment, 36

months’ supervised release, restitution, and a monetary assessment. He appeals

his 60-month prison sentence.

      Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we

AFFIRM.


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
                                  I. Background

      Roy Hoskins founded Companions, a Salt Lake City escort service that he

owned and managed. As a Schedule C business, Companions did not file its own

tax returns. Rather, Hoskins was required to personally report income and

deductions attributable to Companions. For tax year 2001, Hoskins reported on

his U.S. Individual Income Tax Return, Form 1040, that Companions took in

$157,600 in gross receipts. For tax year 2002, Hoskins and his wife, Jodi

Hoskins, filed a joint federal income tax return and reported $902,750 in gross

receipts. 1 The government discovered, however, that Companions received at

least $490,937 in credit-card payments in 2001 and at least $1,053,552 in 2002.

This did not include any cash payments at all, even though cash transactions

represented approximately 50–75% of Companions’ business. Thus, the

government doubled the credit-card receipts to conclude Companions took in

more than $3 million in gross receipts in 2001–2002—more than $2 million of

which was unreported. The government calculated Hoskins caused a tax loss of

$817,895.

      In May 2008, a federal grand jury charged Hoskins with willfully

attempting to evade his income taxes for 2001 and 2002, in violation of § 7201.


      1
         Jodi Hoskins was tried, convicted, and sentenced under § 7201 for
signing the inaccurate 2002 tax return. She appealed her conviction and sentence.
In a separate opinion, we affirmed the district court’s ruling. See United States v.
Hoskins, No. 10-4131 (10th Cir. 2011).

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Hoskins pleaded guilty to both counts without entering into a plea bargain.

Crediting the government’s estimates, the district court found that by virtue of his

inaccurate tax returns, Hoskins failed to report more than $2 million in gross

receipts, which resulted in a tax loss to the government of $817,895. The district

court rejected Hoskins’s alternative accounting of the tax loss based on unclaimed

deductions for commissions and tips that suggested a tax loss of only $228,740.

      Under the United States Sentencing Guidelines (USSG), Hoskins was

subject to a base offense level of 20 and a criminal history category of IV. The

district court applied a two-level enhancement because it found Hoskins “failed to

report or to correctly identify the source of income exceeding $10,000 in any year

from criminal activity.” USSG § 2T1.1(b)(1). The court also, however, granted

Hoskins a two-level deduction for accepting responsibility for his crime. Id.

§ 3E1.1. That left Hoskins with a total offense level of 20 and, under the

Guidelines, a sentencing range of 51 to 63 months. The district court sentenced

Hoskins to 60 months’ imprisonment, 36 months’ supervised release, $817,895 in

restitution, and a $200 assessment.

                                      II. Analysis

      In his briefs, Hoskins challenges only the district court’s tax-loss

calculation. He contends the court should have accounted for unclaimed

deductions and arrived at a tax loss of $228,740. This would have lowered

Hoskins’s total offense level to 18—and his sentencing range to 46 to 57 months.

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In oral argument, however, Hoskins’s counsel explicitly abandoned this argument

in light of United States v. Spencer, 178 F.3d 1365 (10th Cir. 1999). Spencer

suggested that, in calculating tax loss for purposes of sentencing under USSG

§ 2T1.1, a district court should not consider deductions that a defendant might

have claimed on his inaccurate tax returns, but for the tax evasion. Id. at 1367.

To replace this lone, now-abandoned issue, Hoskins’s counsel attempted to raise

new issues during oral argument. But arguments not raised in an appellant’s

opening brief are waived. Coleman v. B-G Maint. Mgmt., 108 F.3d 1199, 1205

(10th Cir. 1997) (holding that issues not raised in an appellant’s opening brief are

“deemed abandoned or waived”). Thus, given his counsel’s concession at oral

argument, Hoskins has no arguments left on appeal and we must affirm.

      Even if he had not abandoned the claim, Hoskins’s tax-loss argument lacks

merit. Hoskins’s 51-to-63 month sentencing guideline range was tied to the

court’s calculation that the government suffered a tax loss of $817,895. Hoskins

disputes this figure and contends the court improperly failed to account for

hypothetical deductions when estimating the government’s tax loss. Accordingly,

he says the government’s actual tax loss was approximately $228,740. The law is

clear, however, that the court did not err in accepting the government’s tax-loss

calculation and refusing to credit Hoskins’s self-serving, after-the-fact,

hypothetical returns.




                                         -4-
      In a criminal tax case, a defendant’s base offense level under the

Guidelines is 18 if the government’s tax loss was between $200,000 and

$400,000, and 20 if the loss was between $400,000 and $1 million. USSG §§

2T4.1(F)–(H). The Guidelines define “tax loss” for the purpose of sentencing

defendants convicted under § 7201:

          If the offense involved tax evasion or a fraudulent or false return,
          statement, or other document, the tax loss is the total amount of
          loss that was the object of the offense (i.e., the loss that would
          have resulted had the offense been successfully completed).

USSG § 2T1.1(c)(1). Under this provision, tax loss “shall be treated as equal to

28% of the unreported gross income . . . , unless a more accurate determination

of the tax loss can be made.” Id. § 2T1.1(c)(1), Note (A) (emphasis added). We

defer to these interpretations of the Guidelines as important instructions from an

authoritative source. See United States v. Wise, 597 F.3d 1141, 1148 n.6 (10th

Cir. 2010) (“Commentary interpreting the sentencing guidelines is binding on the

federal courts unless it violates the Constitution or a federal statute, or is

inconsistent with the guideline it interprets.”) (quotation omitted). The

government bears the burden of proving the amount of tax loss arising from

defendant’s illegal acts, but under the Guidelines, “neither the government nor the

court has an obligation to calculate the tax loss with certainty or precision.”

United States v. Sullivan, 255 F.3d 1256, 1263 (10th Cir. 2001) (quotation




                                           -5-
omitted). We may overturn the district court’s tax-loss calculation only if it was

clearly erroneous. See Spencer, 178 F.3d at 1367.

      In this case, 28% of Hoskins’s more than $2 million of unreported gross

income was approximately $560,000—well within the $400,000 to $1 million

range necessary to support the district court’s sentence—but both parties

proposed more accurate determinations of the loss. The government introduced

evidence showing Hoskins’s tax evasion resulted in an actual tax loss of

$817,895. It arrived at this number by accounting only for the deductions

originally claimed on Hoskins’s 2001 and 2002 returns. To counter the

government, Hoskins introduced evidence of unclaimed deductions—which

included deductions he purportedly could have claimed on the 2001 and 2002

returns, but did not—that suggested a tax loss of $228,740. These returns were

premised on Hoskins’s assertion that more than 60% of Companions’ gross

receipts, including those from unreported cash, were deductible commission

payments given to the escorts.

      The district court reasonably determined the government’s calculation was

more credible and adopted it. As set forth in our companion opinion affirming

Jodi Hoskins’s conviction and sentence, the district court had numerous reasons

to credit the government’s tax-loss estimate and reject Hoskins’s proposed

deductions. See United States v. Hoskins (10th Cir. 2011) [Pearl: Please have

clerk insert citation]. Indeed, the record shows that, just as in Spencer, 178 F.3d

                                         -6-
at 1368, the district court found the evidence supporting Hoskins’s estimate of the

unclaimed tax deductions was not credible. And just as in Spencer, the district

court reasonably concluded that Hoskins’s “post hoc self-serving

characterization” of his tax returns was inadequate. Id. at 1369.

      Thus, the district court’s finding that the government suffered an

approximately $817,895 tax loss was not clearly erroneous. We also note that

even if the court had refused to credit the government’s estimate, the default tax-

loss estimate—$560,000—would have yielded the same guidelines range and

supported Hoskins’s 60-month sentence.

                                  III. Conclusion

      For the reasons set forth above, we AFFIRM.

                                               ENTERED FOR THE COURT

                                               Timothy M. Tymkovich
                                               Circuit Judge




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