                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                               File Name: 07a0115p.06

                        UNITED STATES COURT OF APPEALS
                                          FOR THE SIXTH CIRCUIT
                                            _________________


                                                    X
                              Plaintiff-Appellant, -
 UNITED STATES OF AMERICA,
                                                     -
                                                     -
                                                     -
                                                         No. 05-2664
          v.
                                                     ,
                                                      >
 TIMOTHY KOSINSKI,                                   -
                             Defendant-Appellee. -
                                                    N
                     Appeal from the United States District Court
                    for the Eastern District of Michigan at Detroit.
                   No. 02-80563—Arthur J. Tarnow, District Judge.
                                         Argued: November 15, 2006
                                     Decided and Filed: March 22, 2007*
                 Before: KEITH and CLAY, Circuit Judges; MAYS, District Judge.**


                                              _________________
                                                    COUNSEL
ARGUED: Gregory V. Davis, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellant. Richard M. Lustig, RICHARD M. LUSTIG LAW OFFICE, Birmingham,
Michigan, for Appellee. ON BRIEF: Gregory V. Davis, Alan Hechtkopf, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Richard M. Lustig, RICHARD
M. LUSTIG LAW OFFICE, Birmingham, Michigan, for Appellee.
         CLAY, J., delivered the opinion of the court, in which KEITH, J., joined. MAYS, D. J.
(p. 9), delivered a separate concurring opinion.




         *
         This decision was originally issued as an “unpublished decision” filed on March 22, 2007. The court has now
designated the opinion as one recommended for full-text publication.
         **
          The Honorable Samuel H. Mays, Jr., United States District Judge for the Western District of Tennessee, sitting
by designation.


                                                           1
No. 05-2664               United States v. Kosinski                                                             Page 2


                                               _________________
                                                   OPINION
                                               _________________
        CLAY, Circuit Judge. Defendant, Timothy Kosinski, was convicted of one count of
conspiring to defraud the Internal Revenue Service (“IRS”) and to structure currency transactions
to evade IRS reporting requirements, in violation of 18 U.S.C. § 371; five counts of submitting false
federal income tax returns, in violation of 26 U.S.C. § 7206(1); and one count of structuring a
currency transaction to evade IRS reporting requirements, in violation of 31 U.S.C. §§ 5324(a)(3)
and 5324(d)(1). Defendant was sentenced to a term of three years under probation supervision, with
the condition that the first six months be served in a halfway house and that the second six months
be served under home confinement. The government appeals the district court’s sentence. For the
following reasons, we VACATE the district court’s sentence and REMAND this case to the district
court for resentencing.
                                                 BACKGROUND
        Defendant, a dentist, founded T.J. Construction (“T.J.”) in 1992. United States v. Kosinski,
127 F. App’x 742, 743-44 (6th Cir. 2005) (unpublished opinion). T.J. worked on construction
projects with Melvin Phillips (“Phillips”), Phillips Contracting and Thyssen Steel. Between 1996
and 1998, checks totaling $8,143,625 were drawn on T.J.’s business account and made payable to
Phillips, but were deposited in Defendant’s personal bank accounts. Defendant and his associates
withdrew money in cash, often engaging in multiple transactions on a single day. They concealed
the flow of this money by making numerous withdrawals of $9,500, an amount just under the IRS
reporting threshold of $10,000. Between January 1995 and May 1999, Defendant and his associates
withdrew $7,676,000 in cash from his various personal accounts. Although Defendant claimed tax
deductions for the full amount of $8,143,625, indicating that he paid1 Phillips and other contractors
in cash, at least $1,400,000 was never paid to Phillips Contracting.
        Defendant used T.J.’s business account to pay for construction work performed at his
residence, his vacation home and his mother’s house between 1996 and 1998. Kosinski, 127 F.
App’x at 744-45. Defendant claimed deductions for the construction work performed in his homes
and his mother’s house on T.J.’s business income tax return. On at least three occasions, Defendant
paid his construction manager $5,000 in cash. Id. at 745. Although the record is somewhat unclear
about the date of these payments, they appear to have been made during the period of the
conspiracy: 1995 to 1999. The money was never reported to the IRS by any party.
        On June 20, 2002, a grand jury returned an indictment against Defendant charging him with
one count of conspiring to defraud the IRS and to structure currency transactions to evade IRS
reporting requirements, in violation of 18 U.S.C. § 371; five counts of submitting false federal
income tax returns, in violation of 26 U.S.C. § 7206(1); and three counts of structuring a currency
transaction to evade IRS reporting requirements, in violation of 31 U.S.C. §§ 5324(a)(3) and
5324(d)(1). On June 16, 2003, a jury found Defendant guilty on the first seven counts, but did not
find him guilty on two of the three structuring counts. On October 10, 2003, the district court
sentenced Defendant using the sentencing guidelines to calculate the applicable sentencing range.
The district court calculated the amount of Defendant’s tax loss by a preponderance of the evidence.
Kosinski, 127 F. App’x at 750. The district court found that the offense level corresponding to

         1
          Phillips and Phillips Contracting also appear to have engaged in a number of financial irregularities. Payments
Phillips made to his employees did not reflect any tax withholding and Phillips Contracting did not file income tax
returns with the IRS between 1995 and 1999. In addition, Phillips maintained that he used cash to pay suppliers for
construction material, but the suppliers denied having ever received cash payments.
No. 05-2664           United States v. Kosinski                                               Page 3


Defendant’s tax loss amount was nineteen and that the applicable sentencing guideline range was
an imprisonment term of thirty to thirty-seven months. The district court awarded Defendant a
downward departure resulting in an offense level of eighteen and an imprisonment range of twenty-
seven to thirty-three months. Defendant was sentenced to two concurrent thirty month
imprisonment terms and was also ordered to pay a $7,000 assessment, a $60,000 fine, and
incarceration costs.
        Defendant appealed his conviction to this Court on numerous grounds. See Kosinski, 127
F. App’x at 743-44. On March 22, 2005, this Court affirmed Defendant’s conviction, but vacated
the sentence because the district court used the sentencing guidelines as mandatory and “erroneously
sentenced him based on facts not found by the jury, in contravention of United States v. Booker, 543
U.S. 220 (2005).” Kosinski, 127 F. App’x. at 750. The Court held that Defendant’s sentence
violated Booker because Defendant “was sentenced based on the amount of tax loss determined by
the district court,” rather than an amount found by the jury. Id. at 751. The Court found that
“[w]ithout the district court’s factual determinations of tax loss, the offense level would be 10,
corresponding to a sentence of 6 to 12 months.” Id. This Court remanded the case to the district
court for resentencing.
        On September 16, 2005, the district court held a resentencing hearing. At the resentencing
hearing, the government argued that Defendant’s offense level should be eighteen. The district court
asked the government what the offense level would be if the Court was “limited to what was charged
and the jury found.” (J.A. 104) In its response, the government conceded that the offense level
would be ten, but argued that “after Booker . . . [the sentencing court] can still go ahead and
calculate a guideline range and guideline sentence, but its only advisory.” (J.A. 105) With respect
to the tax loss amount, the district court stated:
               I have read the Sixth Circuit opinion . . . . The Court certainly did say
               that [the district court’s] method of computation of the tax loss was
               not clear error, clearly erroneous, plain error. It was okay, but then
               [the Sixth Circuit] noted that under Booker [the district court]
               couldn’t consider that [tax loss] amount because . . . [the jurors]
               weren’t asked to find that specific amount.
(J.A. 122) (emphasis added). The district court declined to calculate or consider Defendant’s tax
loss amount. The district court concluded that it did not have authority to depart from the sentencing
guidelines and took offense level ten, “as [a] starting point and [found] that anything within [the
sentencing guideline range of] six to 12 months would be reasonable.” (J.A. 123) The district court
sentenced Defendant to three years of probation supervision, with the condition that the first six
months be served in a halfway house and that the second six months be served under home
confinement. The government objected at the resentencing hearing arguing that the sentence was
unreasonable.
         On November 4, 2005, Defendant’s counsel filed a motion to correct Defendant’s sentence.
At a hearing held on December 15, 2005, the district court acknowledged that it went over the
guidelines, which provide for a $20,000 fine, by sentencing Defendant to a $60,000 fine. The
district court also clarified its sentence:
               Defendant’s Counsel: I want to say that the Court actually decided
               that if [the offense level] were an 18 or it were a 10, that you were
               using the factors in 3553.
               The Court: That’s absolutely true. And just – I would – I have not
               reread the entire transcript. But I would hope that I had said that I
No. 05-2664           United States v. Kosinski                                                 Page 4


               give great weight to the guidelines and that’s a starting point, and
               then I use the factors, and then I come to a result.
               Defendant’s Counsel: The result is, however, within the guidelines,
               and –
               The Court: I understand that. But as far as I understand Booker,
               obviously if it’s within the guidelines, as I understand Booker, it’s
               per se reasonable. But it doesn’t mean that a sentence outside of the
               guidelines is per se unreasonable.
(J.A. 137-38) (emphasis added). The district court entered its judgment on October 31, 2005. The
government filed a timely notice of appeal on November 23, 2005.
        On appeal, the government argues that Defendant’s sentence is unreasonable. More
specifically, it contends that the district court improperly concluded that it could not consider a tax
loss amount that was not found by the jury in calculating Defendant’s sentencing guideline range.
The government maintains that the district court was required to determine the amount of tax loss
and to use it in sentencing, and asserts that the district court improperly followed the instructions
of the Sixth Circuit’s remand in calculating Defendant’s offense level and sentencing range.
                                           DISCUSSION
I.     Standard of Review
        This Court reviews a sentence imposed by a district court for reasonableness. Booker, 543
U.S. at 261-62; United States v. Harris, 397 F.3d 404, 409 (6th Cir. 2005); United States v. Cage,
458 F.3d 537, 540 (6th Cir. 2006). The Court reviews the district court’s interpretations of the
sentencing guidelines de novo and its factual finding for clear error. United States v. Williams, 411
F.3d 675, 677 (6th Cir. 2005); United States v. Burke, 345 F.3d 416, 428 (6th Cir. 2003). The Court
defers to the district court’s application of the sentencing guidelines to the facts. United States v.
Charles, 138 F.3d 257, 266 (6th Cir. 1998).
II.    The District Court Has Discretion to Calculate or Consider Defendant’s Tax Loss
        In the instant case, the applicable sentencing guideline is set forth in United States
Sentencing Guidelines (“U.S.S.G.”) § 2T1.9(a)(1). Section 2T4.1 of the sentencing guidelines sets
forth offense levels based on tax loss amounts. The express language of the relevant statutes
indicates that offense levels are either calculated under § 2T4.1, based on the tax loss amount, or set
at ten. U.S.S.G. § 2T1.9. A review of the relevant statues reveals that the amount of tax loss is not
an element of Defendant’s offense, but rather is relevant to Defendant’s sentence under the
guidelines. See 18 U.S.C. § 371; 26 U.S.C. § 7206(1); 31 U.S.C. §§ 5324(a)(3) and 5324(d)(1).
        Admittedly, it may have been appropriate for a district court to calculate the amount of tax
loss and to use it in sentencing before Booker. See, e.g., United States v. Nash, 175 F.3d 429, 339-
440 (6th Cir. 1999) (finding that the district court properly calculated defendant’s tax liability); see
also United States v. Ghali, 47 F. App’x 281, 283 (6th Cir. 2002) (unpublished case). However, in
light of Booker, the overwhelming case law authority indicates that resentencing is appropriate if
a defendant is sentenced under a mandatory sentencing guideline regime and if the district court
enhances the defendant’s sentence based on factors not proven to a jury or admitted by the
defendant. See, e.g., United States v. Jones, 399 F.3d 640, 648-49 (6th Cir. 2005) (“[T]he Sixth
Amendment is violated where, under a mandatory sentencing scheme, judicial fact-finding, as
opposed to facts found by a jury, increases the sentence beyond the statutory maximum sentence
which may be imposed solely on the basis of the facts reflected in the jury verdict or admitted by
No. 05-2664           United States v. Kosinski                                                Page 5


the defendant.”) (internal quotation marks omitted); United States v. Paz, 405 F.3d 946, 948 (11th
Cir. 2005) (“[U]nder Booker, the Sixth Amendment right to trial by jury is violated where under a
mandatory guidelines system a sentence is increased because of enhancement based on facts found
by the judge that were neither admitted by the defendant nor found by the jury.”) (emphasis in
original). “The district court’s reliance on judge-found facts to increase [a] defendant’s sentence
under mandatory guideline[s] violate[s] the Sixth Amendment.” United States v. Stephens, 148 F.
App’x 385, 388 (6th Cir. 2005) (unpublished case) (emphasis added); see also United States v. Pree,
408 F.3d 855, 874-75 (7th Cir. 2005) (“The Government concedes that the district court committed
error that was plain in treating the guidelines as mandatory and enhancing [defendant’s] sentencing
range based on the court’s findings of fact.”) (emphasis added); United States v. Harpole, 168 F.
App’x 182, 185 (9th Cir. 2006) (unpublished case) (“Because [defendant] was sentenced under
mandatory Sentencing Guidelines, this judge-made finding of fact violated [defendant’s] Sixth
Amendment rights.”) (emphasis added).
       Thus, in enhancing a defendant’s sentence based on factors not proven to a jury or admitted
by a defendant, “[t]he district court [does] not violate Booker [if] it considered the guidelines to be
advisory and not mandatory.” United States v. Redmond, 188 F. App’x 377, 381 (6th Cir. 2006)
(unpublished case); see also United States v. Anderson,187 F. App’x 517, 521 (6th Cir. 2006)
(unpublished case). Post-Booker, under the advisory sentencing guideline regime, a sentencing
enhancement is constitutional as long as it is based on reliable information and supported by a
preponderance of the evidence. Redmond, 188 F. App’x at 381.
         This is not the first time this Court is asked to make a determination with respect to
Defendant’s sentence. See Kosinski, 127 F. App’x at 751. This Court previously found that the
district court’s original sentence violated Booker because Defendant “was sentenced based on the
amount of tax loss determined by the district court,” rather than an amount found by the jury. Id.
It is important to note that Defendant was sentenced under a mandatory sentencing guidelines
regime. Thus, by making factual determinations, “the district court did exactly what the Supreme
Court found to be a violation of the Sixth Amendment in Booker: the district court engaged in
independent fact-finding which enhanced Defendant’s sentence beyond the facts established by the
jury verdict or admitted by Defendant.” United States v. Davis, 397 F.3d 340, 350 (6th Cir. 2005).
In pertinent part, this Court found that:
               [t]his case is factually indistinguishable from Booker itself and thus
               resentencing is required. Booker was convicted by a jury of
               possessing at least 50 grams of cocaine. At sentencing, the district
               court determined that Booker possessed at least 616 grams of cocaine
               and sentenced him accordingly. Had Booker been sentenced on the
               jury’s finding alone, the Guideline range would have been 210 to 262
               months. Instead, based on the district court’s finding that Booker
               possessed more cocaine, Booker received a sentence of 360 months.
               The Supreme Court concluded that because only 50 grams was
               argued to the jury, the sentence exceeded that authorized by the jury
               verdict and thus violated the Sixth Amendment. In this case, Kosinski
               was sentenced based on the amount of tax loss determined by the
               district court. The jury was never asked to determine tax loss.
               Without the district court’s factual determination of tax loss, the
               offense level would be 10, corresponding to a sentence of 6 to 12
               month. U.S.S.G. § 2T1.9. Applying the reasoning of Booker, the 30-
               month sentence Kosinski received plainly went beyond that
               authorized by the jury. We therefore conclude that Kosinski was
               sentenced in violation of the Sixth Amendment.
No. 05-2664           United States v. Kosinski                                                Page 6


Kosinski, 127 F. App’x at 751 (citations omitted). Since Defendant was sentenced under a
mandatory sentencing guidelines regime and the district court enhanced the sentence based on
factors not proven to a jury or admitted by Defendant, this Court vacated Defendant’s original
sentence and remanded for resentencing.
         At the resentencing hearing, the government asked the district court to 1) calculate
Defendant’s tax loss amount as a factual finding by a preponderance of the evidence, and 2) sentence
Defendant at offense level eighteen. In turn, the district court asked the government what the
offense level would be if the Court were “limited to what was charged and the jury found.” (J.A.
104) In its response, the government conceded that, under U.S.S.G. § 2T1.9, the offense level would
be ten, but argued that “after Booker . . . [the sentencing court] can still go ahead and calculate a
guideline range and guideline sentence, but its only advisory.” (J.A. 105) The district court found
that it could not consider the previously calculated tax loss to determine Defendant’s sentencing
guideline range because the tax loss amount was not charged in the indictment and was not found
by the jury beyond a reasonable doubt:
               [U]nder Booker [the district court] couldn’t consider [the amount of
               tax loss it had originally determined under the sentencing guidelines]
               because that’s more than the jury was asked to find; or, more
               accurately, they weren’t asked to find that specific amount.
(J.A. 122) Since the district court concluded that it could not calculate or consider the tax loss
amount, it took offense level ten, as set forth in U.S.S.G. § 2T1.9, “as [a] starting point and [found]
that anything within [the sentencing guideline range of] six to 12 months would be reasonable.”
(J.A. 123) The district court sentenced Defendant to three years of probation supervision, with the
condition that the first six months be served in a halfway house and that the second six months be
served under home confinement. The government objected at the resentencing hearing, arguing that
the sentence was unreasonable. We find that the district court erred in concluding that it could not
calculate or consider Defendant’s tax loss amount.
        “Booker did not eliminate judicial fact-finding.” United States v. Coffee, 434 F.3d 887, 898
(6th Cir. 2005). “It is clear under the law of this Circuit that a district court may make its own
factual findings regarding relevant sentencing factors, and consider those factors in determining a
defendant’s sentence[.]” United States v. Gardiner, 463 F.3d 445, 461 (6th Cir. 2006). In the
instant case, the district court erred in believing that considering Defendant’s tax loss amount would
violate the Sixth Amendment. “[W]hen a trial judge exercises his discretion to select a specific
sentence within a defined range, the defendant has no right to a jury determination of the facts that
the judge deems relevant.” Booker, 543 U.S. at 233. Thus, Booker does not bar the district court
from calculating and considering the tax loss amount provided that the sentencing guidelines are
used as advisory and not mandatory. More specifically, post-Booker, a district court may enhance
a defendant’s sentence “based upon facts not found by a jury, provided they do not consider
themselves required to do so.” Davis, 397 F.3d at 352 (Cook, J., concurring); see also Anderson,
187 F. App’x at 521. Defendant’s sentence is, therefore, erroneous insofar as the district court
calculated Defendant’s sentence “while harboring the misapprehension that, under Booker, [it] could
not enhance [Defendant’s] sentence based upon factors that were not determined by the jury beyond
a reasonable doubt.” Gardiner, 463 F.2d at 461.
        Therefore, the district court has discretion to calculate and consider the tax loss amount for
sentencing purposes provided that 1) the district court does not consider itself required to do so, and
2) as long as the calculation is based on reliable information and supported by a preponderance of
the evidence. See United States v. Yagar, 404 F.3d 967, 972 (6th Cir. 2005). Since the district court
may – but is not required to – calculate or consider Defendant’s tax loss amount, this Court takes
no position as to the propriety of doing so in the instant case. Reversal here is required, not because
No. 05-2664            United States v. Kosinski                                                  Page 7


the district court failed to calculate or consider the tax loss amount, but because the district court was
under the misapprehension that it simply could not do so. In light of the district court’s discretion,
nothing in this opinion should be construed as an endorsement of tax loss calculation or
consideration. At resentencing, the district court should recognize and exercise its discretion to
consider – or to not consider – Defendant’s tax loss.
III.    The District Court Failed to Consider the Sentencing Guidelines as Advisory
       We find that the district court erred in applying the sentencing guidelines as mandatory. “In
determining the sentence to be imposed, the district court must consider the advisory Guidelines
range and all relevant factors identified in 18 U.S.C. § 3553(a).” United States v. Jones, 445 F.3d
865, 869 (6th Cir. 2006); see also United States v. McBride, 434 F.3d 470, 476 (6th Cir. 2006);
Jackson, 408 F.3d 301, 304 (6th Cir. 2006) (“[D]istrict courts are required to consider the applicable
Guidelines sentencing range when arriving at a defendant's sentence, 18 U.S.C. § 3553(a)(4), but
only as one factor of several laid out in § 3553(a).”); Booker, 543 U.S. at 259 (“Without the
‘mandatory’ provision, the Act nonetheless requires judges to take account of the Guidelines
together with other sentencing goals”). “[T]he district court’s decision to deny a Guideline-based
departure . . . is not reviewable by this Court so long as the district court was aware of and
understood its discretion to make such a Guideline-based departure.” McBride, 434 F.3d at 476; see
also Jones, 445 F.3d at 868; United States v. Stewart, 306 F.3d 295, 329 (6th Cir. 2002).
       At the December 15, 2005 hearing, the district court noted that
                as far as I understand Booker, obviously if it’s within the
                guidelines, as I understand Booker, it’s per se reasonable. But it
                doesn’t mean that a sentence outside of the guidelines is per se
                unreasonable.
(J.A. 137-38) (emphasis added). This statement illustrates a fundamental misunderstanding of
Booker; nothing in Booker suggests that a sentence within the sentencing guideline range is per se
reasonable. The sentencing guidelines are to be consulted and appropriately taken into account, but
a reasonable sentence requires consideration of the factors set forth in 18 U.S.C. § 3553. “‘A
sentence within the Guidelines carries with it no implication that the district court considered the
3553(a) factors if it is not clear from the record.’” United States v. Johnson, 467 F.3d 559, 563 (6th
Cir. 2006) (quoting United States v. Foreman, 436 F.3d 638, 644). “Absent [an] articulation on the
record that the § 3553(a) factors were considered, we are unable to review Defendant’s sentence for
reasonableness, and we decline to find that a sentence within the Guidelines range is reasonable.”
Id. at 564; see also United States v. Cage, 458 F.3d 537 (6th Cir. 2006). Therefore, the district court
simply cannot assume that a sentencing Defendant within the sentencing guidelines is per se
reasonable.
        In the instant case, we find that the record indicates that the district court was not aware of
or did not understand its discretion to depart from the sentencing guidelines. The district court
concluded that it did not have authority to depart from the sentencing guidelines, and applied the
sentencing guidelines as mandatory, sentencing Defendant at offense level ten. The district court
was not bound to go to offense level ten because the sentencing guidelines are advisory. Booker,
543 U.S. at 259. Since the district court applied the sentencing guidelines as mandatory, the district
court’s sentence violated Booker.
        Furthermore, the district court failed to state facts which support its sentence. “The district
court must articulate the reasons for the particular sentence imposed in order to enable this Court
to engage in a meaningful reasonableness review of the sentence.” Jones, 445 F.3d at 869. In the
instant case, “the list [of characteristics] provided by the district court, without any accompanying
analysis, is insufficient to justify the sentence imposed, as it renders our reasonableness review
No. 05-2664           United States v. Kosinski                                              Page 8


impossible.” Jackson, 408 F.3d at 305; see also United States v. Williams, 432 F.3d 621, 623-24
(6th Cir. 2005) (affirming downward departure at sentencing where the district court followed
Jackson, considered the applicable sentencing guidelines, and provided a detailed analysis in support
of its decision to depart). On remand, the district court should use facts from the record to support
its sentence.
                                         CONCLUSION
        The district court erred in sentencing Defendant. For the foregoing reasons, we VACATE
the district court’s sentence and REMAND this case to the district court for resentencing.
No. 05-2664           United States v. Kosinski                                                 Page 9


                                     _____________________
                                        CONCURRENCE
                                     _____________________
        MAYS, District Judge, concurring. I agree with the majority’s conclusion that the district
court’s sentence must be vacated and the case remanded for resentencing. I agree also with the well-
reasoned explanation for vacating the sentence. However, because I believe the majority erred in
explaining how the district court should determine Defendant’s sentence on remand, I respectfully
offer this concurrence.
         The majority has concluded that “the district court may – but is not required to – calculate
or consider Defendant’s tax loss amount” in sentencing. (Maj. opp., p. 6.) The Sentencing
Guidelines do not give the district court that discretion. Section 2T1.9(a) explicitly instructs the
judge to calculate a defendant’s base offense level by “apply[ing] the greater” of the numbers that
result from (1) using the tax table at § 2T4.1 to translate tax loss amount into an offense level, or
(2) setting the base offense level at 10. The application notes explain: “The base offense level is
the offense level [calculated using tax loss, if any] . . . if that offense level is greater than 10.
Otherwise, the base offense level is 10.” (USSG § 2T1.9 , comment (n.2).) Therefore, the trier of
fact, here a judge, is required to determine the defendant’s tax loss, and the judge must calculate a
base offense level based on that amount. If the resulting base offense level is greater than ten, the
judge is required to apply the greater base offense level. If the resulting base offense level is ten or
less, the judge is required to set the defendant’s base offense level at ten. In no circumstance is the
judge free to choose one method of determining base offense level; he must use both methods,
compare the results, and choose the greater.
        Certainly, the district court would not be bound by the resulting guidelines, but failure to
calculate the guidelines properly would be reversible error. United States v. Davis, 458 F.3d 491,
495 (6th Cir. 2006). Having calculated the guidelines properly, the district court may then revisit
the tax loss amount in addressing the § 3553 factors and exercising its discretion.
