     Case: 17-30624      Document: 00514476388         Page: 1    Date Filed: 05/17/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                      United States Court of Appeals

                                    No. 17-30624
                                                                               Fifth Circuit

                                                                             FILED
                                  Summary Calendar                       May 17, 2018
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk


                                                 Plaintiff-Appellee

v.

KEVIN DALCOURT,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:16-CR-21-1


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Kevin Dalcourt appeals the sentence imposed
following his guilty plea conviction for one count of making and subscribing a
false tax return in violation of 26 U.S.C. § 7206(1). He contends that the
$89,927 fine is constitutionally excessive because it is punitive in nature and
grossly disproportional to the gravity of his offense. We affirm.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                    No. 17-30624

      We need not determine if the constitutional issue was preserved because,
even on de novo review, Dalcourt’s arguments fail. The record reflects that the
fine is related and proportional to the gravity of Dalcourt’s offense. See United
States v. Bajakajian, 524 U.S. 321, 334 (1998). As a professional tax preparer
who filed false tax returns on behalf of himself and several clients, Dalcourt is
clearly within the class of persons for whom the statute was designed. See
§ 7206; United States v. Morrison, 833 F.3d 491, 500-02 (5th Cir. 2016); United
States v. Haynes, 573 F.2d 236, 240 (5th Cir. 1978). Although the fine exceeds
the $4,000 to $40,000 guidelines range, it is well below the statutory maximum
fine of $250,000. See § 7206; 18 U.S.C. § 3571(b)(3), (e). The district court
explained that the $89,927 fine was imposed to adequately account for
Dalcourt’s conduct and the actual tax losses not covered by the $397,989.78
restitution order. Defense counsel’s arguments in support of mitigation of
sentence confirms that Dalcourt was employable and would be capable of
paying the fine and restitution in monthly installments on his release from
prison. Dalcourt has not shown that the fine violates the Eighth Amendment.
See Bajakajian, 524 U.S. at 334, 337-39.
      Dalcourt   also    contends    that    his   above-guidelines   sentence    is
substantively unreasonable. He notes that, in addition to a fine more than
twice the maximum amount recommended by the Guidelines, the district court
also sentenced him above the applicable guidelines range to the 36-month
statutory maximum term of imprisonment and ordered that the sentence run
consecutively to the state sentence he is currently serving.
      The record reflects that the district court considered the advisory
guidelines range, the statutory penalties, the 18 U.S.C. § 3553(a) factors, the
facts set forth in the presentence report, Dalcourt’s arguments in mitigation of
sentence, and the Government’s request for an upward variance. The district



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                                   No. 17-30624

court made an individualized assessment and concluded that the guidelines
range did not adequately take into account the § 3553(a) factors. Although the
district court imposed the statutory maximum term of imprisonment, the 36-
month sentence is only six months greater than the top of the 24 to 30-month
guidelines range. We have upheld variances substantially greater than the
increase to Dalcourt’s term of imprisonment. See United States v. Jones, 444
F.3d 430, 433, 441-42 (5th Cir. 2006). The above-guidelines fine is also well
below the statutory maximum fine, and the district court’s imposition of a
consecutive sentence was authorized by 18 U.S.C. § 3584(a) and U.S.S.G.
§ 5G1.3(a).
      Dalcourt’s assertions do not show a clear error of judgment on the district
court’s part in balancing the § 3553(a) factors. Instead, they constitute a mere
disagreement with the district court’s weighing of those factors. Given the
significant deference that is owed to a district court’s consideration of the
§ 3553(a) factors and the district court’s reasons for its sentencing decision,
Dalcourt      has   not   demonstrated   that     the   sentence   is   substantively
unreasonable. See Gall v. United States, 552 U.S. 38, 50-53 (2007); United
States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008). The district court’s
judgment is AFFIRMED.




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