                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 17a0005n.06

                                           No. 16-3292
                                                                                       FILED
                          UNITED STATES COURT OF APPEALS                         Jan 04, 2017
                               FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )
                                                         )      ON APPEAL FROM THE
v.                                                       )      UNITED STATES DISTRICT
                                                         )      COURT FOR THE SOUTHERN
MELVILLE DONALD HAYES,                                   )      DISTRICT OF OHIO
                                                         )
       Defendant-Appellant.                              )
                                                         )


       Before: MERRITT, ROGERS, and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. Melville Donald Hayes pled guilty to making a false

statement on a tax form in violation of 26 U.S.C. § 7206. Hayes’s Guidelines range was zero to

six months in prison, but the district court sentenced him to fifteen months. Hayes now argues

that his sentence is both procedurally and substantively unreasonable. We affirm.

                                                I.

       From 2005-07, Hayes underpaid his taxes by a total of $125,753.62. The IRS sought to

collect that amount in 2009 and to that end asked Hayes to complete a Form 433-A. On the

form, Hayes attested that he had not “transferred any assets for less than their full value” in the

past ten years. That was untrue, for in 2007-08 Hayes had given his mother nearly $140,000

worth of antiques, artwork, and jewelry for no cost. Based in part on that misrepresentation, the

IRS closed its collection case, concluding that, if Hayes were forced to pay his tax debt, he

would be unable to afford basic living expenses.
No. 16-3292
United States v. Hayes
       Months later, Hayes’s misrepresentation came to light, and he pled guilty to making a

false statement on his Form 433-A. As part of the plea agreement, the parties stipulated that “no

tax loss resulted from [Hayes’s] offense.”

       The district court grappled with that stipulation at two pre-sentencing hearings. At the

first hearing, the court pointed out that Hayes’s false statement had prevented the IRS from

collecting his unpaid taxes. The parties conceded that was true, but insisted it was irrelevant for

sentencing purposes. A defendant can cause a “tax loss” only once, the parties reasoned, and

Hayes had caused this loss when he underpaid his taxes, not when he lied to the IRS.

       At the second pre-sentencing hearing, the court accepted that Hayes’s false statement had

not caused a “tax loss” as defined by the Guidelines, and that Hayes’s sentencing range was

therefore zero to six months. But “tax loss” or not, the court found, Hayes’s false statement had

undoubtedly caused real-world harm to the Government. Specifically, the court determined that,

if Hayes had not lied on his Form 433-A, the IRS would have collected at least $125,753.62 from

him, and potentially more given that he had also underpaid his 2008-09 taxes. The court said

that it planned to consider that harm when it weighed the 18 U.S.C. § 3553(a) factors. The court

warned Hayes that, to account for that harm, the court might need to impose a sentence above the

Guidelines range.

       At sentencing, the district court reiterated the following: that Hayes’s Guidelines range

was zero to six months; that the range reflected a “tax loss” of zero; that, in actuality, Hayes had

cost the Government more than $125,000; and that, to account for that harm, the court “ha[d] at

its disposal an upward . . . variance.” The court then addressed the remaining § 3553(a) factors.

Hayes did not need to be rehabilitated, the court found, and any sentence the court imposed was

unlikely to deter future offenders. 18 U.S.C. § 3553(a)(2)(B),(C),(D). Further, Hayes had been a



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No. 16-3292
United States v. Hayes
“good son” to his elderly mother, and had served his community as both a “talented

professional” and an active philanthropist. Id. at § 3553(a)(1). But Hayes had failed to pay his

taxes despite having the means to do so, and had refused to admit (even at sentencing) that he

had tried to deceive the IRS. Id. Finally, given that the court had imposed “heavy prison

sentences” on defendants who had “stolen far less” than Hayes had, the court said that it could

not grant Hayes’s request for probation without diminishing public respect for the law. Id. at §

3553(a)(2)(A).

       The court then sentenced Hayes to fifteen months in prison. This appeal followed.

                                                 II.

       Hayes challenges his sentence on four grounds. He first argues that his sentence is

procedurally unreasonable because, he says, the district court failed to explain why it sentenced

him above the Guidelines range. After announcing Hayes’s sentence, the court asked Hayes if

he had any procedural objections.        Hayes’s attorney responded, “I’m going to object []

procedurally,” but he did not identify any specific error he thought the district court had

committed. We therefore review for plain error. United States v. Simmons, 587 F.3d 348, 358

(6th Cir. 2009).

       When a district court imposes a sentence outside the applicable Guidelines range, the

court must state its “specific reason[s]” for doing so. 18 U.S.C. § 3553(c)(2). The court must

also reiterate those reasons in a Statement of Reasons attached to the judgment. Id. Under the

plain-error standard, a court’s oral explanation is sufficient unless it is “so threadbare or

ambiguous” that it “preclude[s] meaningful appellate review.” United States v. Zobel, 696 F.3d

558, 568 (6th Cir. 2012). When a court’s oral explanation is sufficient, we will not vacate a

sentence for plain error, even if the court’s written explanation is “sparse.” Id. at 566-67.



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No. 16-3292
United States v. Hayes
       Here, given what the district court said at sentencing, we have no trouble discerning why

the court sentenced Hayes above the Guidelines range. The court determined that Hayes’s false

statement had cost the Government at least $125,753.62. But that harm did not qualify as a “tax

loss” for Guidelines purposes, and thus Hayes’s sentencing range did not account for a cent of it.

The court said that it planned to consider that harm as part of its § 3553(a) calculus. And the

court warned Hayes that, to account for the harm, the court might have to impose a sentence

above the Guidelines range.      On those facts, the court adequately explained the sentence.

Hayes’s procedural challenge therefore fails.

       We review Hayes’s remaining challenges to his sentence for abuse of discretion. United

States v. Collins, 828 F.3d 386, 388 (6th Cir. 2016).

       Hayes argues that the district court failed to consider the Guidelines range. As discussed

above, however, the court calculated the range, recited the range in open court, and sentenced

Hayes above the range because the range did not account for the harm that Hayes had caused the

Government. Hence, this argument fails.

       Hayes next argues that the district court placed excessive weight on the need “to promote

respect for the law.” 18 U.S.C. § 3553(a)(2)(A). That must be so, Hayes says, because all “the

other § 3553(a) factors . . . favored leniency.” But again, that is not what the court found. As

discussed above, the court placed great weight on the $125,753.62 that Hayes had prevented the

IRS from collecting, which reflected the “seriousness of the offense.”                18 U.S.C.

§ 3553(a)(2)(A).   The court also recited several “circumstances of the offense”—including

Hayes’s failure to pay his taxes despite having the money to do so—that favored a longer

sentence. 18 U.S.C. § 3553(a)(1). Thus, while Hayes is correct that some of the § 3553(a)




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No. 16-3292
United States v. Hayes
factors favored leniency, others pointed in the opposite direction. The district court did not

abuse its discretion in this respect either.

        Hayes’s final argument is that, in weighing the need to promote respect for the law, the

court counted “his socioeconomic status [as] a strike against him” in violation of U.S.S.G.

§ 5H1.10. The court did nothing of the kind. Instead, in rejecting Hayes’s request for a non-

custodial sentence, the court said that it routinely sentenced defendants who had stolen far less

than Hayes had to long prison terms, and hence that, if the court sentenced Hayes to probation,

the public might lose faith in the law’s evenhandedness. There was nothing discriminatory or

otherwise improper about that reasoning.

                                               *   *     *

        The district court’s judgment is affirmed.




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