                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0527n.06
                                                                                           FILED
                                            No. 09-3976
                                                                                      Aug 02, 2011
                          UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
GARY HARRIS,                                      )   NORTHERN DISTRICT OF OHIO
                                                  )
       Defendant-Appellant.                       )



       Before: SUTTON and COOK, Circuit Judges; GREER, District Judge.*


       SUTTON, Circuit Judge. In many respects, Gary Harris epitomizes the American dream.

Despite a difficult childhood—cycling in and out of juvenile detention and foster homes and leaving

school after the sixth grade—he built a successful business network, at one point amassing a net

worth of $11 million. What looks like a rags-to-riches story, however, has a not-so-happy subplot:

Harris insists on not paying his taxes. That insistence continued even after Harris pleaded guilty to

a series of tax-related offenses and spent several years in prison. As a result, a jury convicted him

of new tax-related charges, and the court sent him back to prison for another 110 months. Harris

now raises various challenges to his sentence. We affirm in most respects but remand for the limited

purpose of allowing the court to correct one mistake made in announcing the sentence.



       *
       The Honorable J. Ronnie Greer, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
No. 09-3976
United States v. Harris

                                                I.


       In 1996, a federal grand jury indicted Harris for various tax and RICO offenses. He pleaded

guilty, served four years in prison and paid $300,000 in back taxes. When Harris violated the terms

of his plea, thereby releasing the government from its non-prosecution agreement, a grand jury

indicted him again, this time for conspiracy to defraud the IRS and to commit other tax offenses.

A jury found Harris guilty, and the district court sentenced him to 151 months in prison.


       We affirmed the conviction, rejecting the argument that the plea agreement barred a second

prosecution. See United States v. Harris, 200 F. App’x 472, 476, 478 (6th Cir. 2006). But we

vacated and remanded for resentencing in light of Booker, as well as to correct various guidelines-

calculation errors. The district court held three separate sentencing hearings to permit the

government to present a new estimate of tax loss. Harris chose to proceed pro se (with standby

counsel), and he testified and argued on his own behalf. The court adopted the government’s tax

estimates, calculated a revised guidelines range of 110 to 137 months and sentenced him to 110

months.


                                                II.


       Harris challenges the district court’s most recent calculation of his gross income, used to

determine his base offense level, on several grounds. His first theory has nothing to do with the

calculation itself but with the process that preceded it. At the resentencing hearing, after the

government presented its evidence, Harris responded by maintaining his innocence, alleging a

                                               -2-
No. 09-3976
United States v. Harris

government conspiracy to seize his property and complaining that he needed access to various

records in the government’s possession. The government responded that Harris’s attorney had

access to all of the records and that they had no bearing on the sentence anyway.


       No due process violation occurred. As shown by one lengthy colloquy at the hearing, among

many other colloquies (and some soliloquies), Harris’s request for records had little to do with his

sentencing and everything to do with challenging his conviction and seeking to resolve his

outstanding tax issues with the IRS. Here is how Harris put it:


       Court: Do you want the records to prepare your tax returns?
       Harris: That’s right. I want to show that their records are wrong.
       Court: Okay.
       Harris: But I don’t want to hold your sentencing up. If you—I am saying that I am
       entitled to the records regardless.
       Court: I’m going to order them returned, but I want to be sure you are not saying I
       want those records before you complete your sentencing hearing.
       Harris: No, I’m not going to say this. . . .


R.517 at 69–70. At the same time the court agreed that the government should return Harris’s tax

records to allow him to file new returns, the court confirmed with Harris that he did not need these

records for resentencing. As the court later put it, “no evidence whatsoever” shows “that [Harris’s]

inability to obtain any records has any bearing on his ability to prove any deductions, expenses.

Unfortunately, I believe that is simply a red herring.” R.548 at 7.




                                                -3-
No. 09-3976
United States v. Harris

        Harris offers no tenable reason for altering this ruling. As Harris himself recognized during

the hearing, the records have little to do with the income calculations, making it difficult to say that

the denial of access to them violated due process. Confirming the point, Harris presented many

exhibits that did bear on the various expenses that (he alleged) should have been deducted from the

income estimate. Access to his records would not have changed the proceeding.


                                                  III.


        Harris contests the district court’s decision to quash 20 witness subpoenas that he issued prior

to resentencing. The district court held a telephone conference allowing Harris to describe what

these witnesses would say. The court quashed all 20 subpoenas, reasoning that Harris had failed to

comply with the rules of service (by failing to tender a witness-attendance fee and mileage

allowance), see Fed. R. Crim. P. 17(d), and that any witness testimony would be immaterial or

duplicative.


        We review a district court’s decision to quash a subpoena for an abuse of discretion. See

United States v. Theunick, __ F.3d__, 2011 WL 2566883, at *8 (6th Cir. June 30, 2011). A court

may consider a variety of factors in reviewing such motions, including the most obvious: whether

the witnesses have anything material to add to the hearing. See United States v. Moore, 917 F.2d

215, 230 (6th Cir. 1990).


        Harris does not dispute his failure to comply with the procedural requirements of Rule 17(d),

which is reason enough to quash the subpoenas. See United States v. Moore, 225 F.3d 637, 644 n.2

                                                 -4-
No. 09-3976
United States v. Harris

(6th Cir. 2000). But even if Harris had complied with Rule 17(d), the court would not have abused

its discretion in ruling that the requested testimony was irrelevant or duplicative. Harris sought the

testimony for a variety of reasons: so that an IRS agent could testify that Harris did not submit a

false tax filing (which led to the violation of his plea agreement); so that another agent could testify

why the IRS had not released his records; or so that a former lawyer of his could testify that Harris

had tried in good faith to resolve his tax issues. None of this proposed testimony had anything to

do with calculating tax loss. It only would have facilitated Harris’s efforts to relitigate issues the

courts decided against him at trial and on appeal.


       A few witnesses, we recognize, might have provided testimony related to gross income. But,

as the court correctly held, they would have corroborated only what Harris, a sophisticated and

“extremely intelligent” businessman, R.548 at 23, already knew. No abuse of discretion occurred.


                                                  IV.


       Harris separately challenges the procedural reasonableness of his sentence, maintaining that

the court should have adopted a lower estimate of gross income. A district court’s tax-loss findings

receive deferential review—and with good reason. The Sentencing Commission does not assess and

collect taxes and does not demand perfect accuracy in calculating income. The “broad tax-loss bands

of the guidelines” tend to undermine “the contention that a given tax-loss finding was necessary to

the sentence.” Kosinski v. Comm’r, 541 F.3d 671, 676 (6th Cir. 2008). The guidelines recognize

that “the amount of the tax loss may be uncertain” and that “indirect methods of proof” may be used,


                                                 -5-
No. 09-3976
United States v. Harris

requiring only that the sentencing court “make a reasonable estimate based on the available facts.”

U.S.S.G. § 2T1.1 app. n.1. “Loss need not be determined with precision”; it can “be founded on

general factors such as the nature and duration of the fraud.” United States v. Milligan, 17 F.3d 177,

183 (6th Cir. 1994).


       No error, clear or otherwise, occurred. The court found that the government’s estimates were

“supported by the record,” R.548 at 8, and “exceedingly conservative,” R.542 at 2. Several tax and

accounting experts supported the government’s estimate. See United States v. Haque, 315 F. App’x

510, 529 (6th Cir. 2009). And after nearly four weeks of trial and one prior round of sentencing, the

district court of course had a better vantage point than we do to assess this testimony and record.

By adopting the government’s estimate as the most reasonable one, the court did not clearly err.


       Harris points to instances when the court could have deducted expenses from the income

estimate. Yet the court acknowledged the arguments and found that the proposed deductions lacked

“evidence of any kind.” R.548 at 7. The government, it is true, revised its estimate of gross income

several times. But each revision reduced Harris’s gross income, and all of the government’s figures

turned on record evidence. Only “out of an abundance of caution” did the court embrace the

government’s estimate, even though it believed that a “close review of the entire record” suggested

that a “substantially higher total unreported income could be attributed to Harris.” R.542 at 2.

Rather than undermining the government’s estimate, its multiple revisions—all in Harris’s

favor—suggest a good faith effort to provide a “reasonable estimate” in difficult circumstances.



                                                -6-
No. 09-3976
United States v. Harris

       Harris argues that the court did not address some of his objections. See Fed. R. Crim. P.

32(i)(3)(B). Not true. The court rejected each of Harris’s factual objections as speculative and

immaterial to his sentence and adopted instead the government’s estimates. All of this satisfied Rule

32. See United States v. Tarwater, 308 F.3d 494, 518 (6th Cir. 2002).


       Harris urges us to wade into a circuit split over whether taxpayers may use “unclaimed”

deductions to reduce gross income under § 2T1.1. See United States v. Blevins, 542 F.3d 1200, 1202

(8th Cir. 2008). Yet the issue has no bearing on this case. The district court found that Harris failed

to establish a basis for using any deductions, whether claimed or unclaimed, in lowering his income.


                                                  V.


       That leaves one issue on which the parties agree: the district judge misspoke in announcing

one part of the sentence. The judge sentenced Harris to “110 months . . . on each count to be served

consecutively,” R.548 at 24, which would exceed the statutory maximum, rather than two 55-month

sentences served consecutively. Although the court corrected itself, this came too late under

Criminal Rule 35(a)’s brief window for correcting sentencing dispositions.


       Harris argues that we should issue a general remand, and he requests a full-blown

resentencing, including the opportunity for allocution. See United States v. Garcia-Robles, 640 F.3d

159, 165–66 (6th Cir. 2011). We decline the invitation. We have affirmed Harris’s sentence in all

other respects, and a limited remand giving the district court another opportunity to announce its

sentence, both with respect to the length of the prison sentence and the length of supervised release,

                                                 -7-
No. 09-3976
United States v. Harris

will suffice to correct this mistake. See United States v. O’Dell, 320 F.3d 674, 679–81 (6th Cir.

2003).


                                                 VI.


         For these reasons, we affirm the district court’s sentence but remand for the limited purpose

of allowing the court to clarify its sentence.




                                                 -8-
