12-313-cr
U.S. v. O’Brien


                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 19th day of March, two thousand thirteen.

PRESENT:    JOHN M. WALKER, JR.,
            GERARD E. LYNCH,
            SUSAN L. CARNEY,
                              Circuit Judges.
_________________________________________

UNITED STATES OF AMERICA,

                                   Appellee,

                  v.                                                     No. 12-313-cr

JOHN J. O’BRIEN,

                                   Defendant-Appellant,


_________________________________________


FOR APPELLANT:              NICHOLAS J. PINTO, ESQ., New York, NY.


FOR APPELLEE:               STANLEY J. OKULA, JR. (Katherine Polk Failla, on the brief),
                            Assistant United States Attorneys, of Counsel, for Preet Bharara,
                            United States Attorney for the Southern District of New York.
       Appeal from a judgment of the United States District Court for the Southern District of

New York (Henry B. Pitman, Magistrate J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendant-appellant John J. O’Brien appeals from the district court’s sentence of 28

months’ imprisonment and one year of supervised release following his guilty plea to two counts

of willful failure to file United States individual income tax returns and two counts of willful

failure to pay personal income taxes, all pursuant to 26 U.S.C. § 7203. On appeal, O’Brien

argues that his sentence was both substantively and procedurally unreasonable. We assume the

parties’ familiarity with the underlying facts, procedural history, and issues on appeal.

       We review a district court’s sentence to ensure that it is both procedurally and

substantively reasonable. United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc).

A district court errs procedurally by, inter alia, miscalculating the applicable sentencing

guideline range, considering conduct that is irrelevant under the applicable guidelines, or giving

insufficient consideration of the factors set out in 18 U.S.C. § 3553(a). See id. at 190. A district

court’s sentence is substantively unreasonable only if it “cannot be located within the range of

permissible decisions.” Id. at 189 (internal quotation marks omitted). We review the procedural

and substantive reasonableness of a district court’s sentence for abuse of discretion. United

States v. Carter, 696 F.3d 229, 232 (2d Cir. 2012).

       O’Brien argues that his sentence was procedurally unreasonable for several reasons.

First, he argues that the district court miscalculated the relevant guidelines range because it

considered conduct that was irrelevant under the guidelines because it was not part of the


                                                  2
common scheme or plan and because his underpaid taxes for other years not charged did not

involve willful violations of 26 U.S.C. § 7203. This argument fails because the sentencing

guidelines commentary instructs district courts to consider as relevant conduct in tax cases “all

conduct violating the tax laws.” U.S.S.G. § 2T1.1, Commentary, Application Note 2.

       O’Brien’s argument that the district court applied the incorrect guidelines range because

it considered conduct for which the government had not proven willfulness fails because by

O’Brien’s own admissions, the total tax loss he caused exceeded the $2,500,000 threshold under

the guidelines. See U.S.S.G. §§ 2T1.1(a)(1), 2T4.1(J). O’Brien concedes that he caused tax

losses to the I.R.S. equal to $2,075,995, and he does not challenge the government’s assertion

that he caused $591,434 in tax losses to the New York tax authorities for the years 2003-2007.

The district court therefore did not err in calculating the relevant guidelines sentence as 37 to 46

months.

       O’Brien’s argument that the district court impermissibly relied on unproven allegations

that his conduct might have supported a felony charge is also unavailing. Although such a

statement might have been in error, we cannot say based on the record that the district court

relied on such a finding in sentencing O’Brien. We therefore conclude that any error the district

court may have made in speculating about what O’Brien might have been charged with does not

require resentencing.

       O’Brien also argues that the district court failed to consider the sentencing factors listed

in 18 U.S.C. § 3553(a). In fact, however, the district court properly considered the relevant

mitigating factors, including the degree to which he had self-reported his violations and his

mental illnesses, and balanced them against the need for uniformity in sentences and the

magnitude of the tax losses to the government.

                                                 3
       Finally, O’Brien argues that his sentence was substantively unreasonable when compared

to other similarly-situated offenders. But the district court’s sentence of 28 months’

imprisonment was below the recommended guidelines range of 37 to 46 months, and thus was

well within the range of sentences imposed for similar conduct. Under these circumstances, we

cannot conclude that the district court abused its discretion in applying a 28-month sentence.

       For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.



                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




                                                 4
