                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                           OCTOBER 12, 2005
                              No. 04-16064                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                 D. C. Docket No. 04-00028-CR-T-30-MAP

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                   versus


CHARLES LOONEY,

                                                         Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                             (October 12, 2005)


Before BIRCH, BARKETT and HULL, Circuit Judges.

PER CURIAM:

     Charles Looney (“Looney”) appeals his conviction and 12-month sentence
for failure to file an income tax return for the year 1997, in violation of 26 U.S.C.

§ 7203. After review, we affirm in part, and reverse and remand in part.

                                 I. BACKGROUND

      Looney was charged with two counts of filing a false tax return, in violation

of 26 U.S.C. § 7206(1) (Counts 1 and 2), and one count of willful failure to file a

tax return, in violation of 26 U.S.C. § 7203 (Count 3).

A.    Looney’s Business Income and Tax History

      During Looney’s trial, the testimony regarding Looney’s business income

was as follows. In October 1993, Looney began operating an independent

distributorship in a legitimate multi-level marketing company called Starlight

International (“Starlight”). Starlight distributes vitamins and nutrition products.

As an independent distributor, Looney was responsible for reporting his income to

the Internal Revenue Service (“IRS”) and for paying his own taxes.

      In October 1994, Looney transferred his distributorship to a business, CL

Marketing. CL Marketing was an unincorporated business trust organization

(“UBTO”). Looney created the UBTO after attending tax seminars and talking

with “some tax professionals, attorneys, [accountants], and some friends,”

including David Simmons (“Simmons”). Looney testified that Joe Sweet

(“Sweet”), a minister at his church and a tax professional, told him that the United



                                           2
States Supreme Court had ruled that UBTOs were non-taxable entities. According

to Looney, he sent letters to several attorneys and certified public accountants

(“CPAs”), asking them whether he was required to file an individual tax return.

Based on their responses, Looney believed that: (1) filing a tax return was “strictly

voluntary”; (2) compensation for his own labor could not be taxed; and (3) as long

as he had no profit, he did not owe any taxes. Looney also testified that he relied

on: (1) an essay written by Sweet concerning common law UBTOs; and (2) an

article by an attorney, which, as he understood it, stated that a UBTO is a non-

taxable entity.

      Looney failed to file individual tax returns for 1995 and 1996.

      On February 13, 1998, IRS Officer Kathy Kendall (“Officer Kendall”) met

with Looney to discuss problems with Looney’s 1993 tax return and Looney’s

failure to file 1995 and 1996 tax returns. At the meeting, Officer Kendall

explained that IRS documents showed that Looney had earned taxable income for

the years 1995 and 1996.

      In April 1998, Looney filed Form 1040 tax returns for the years 1995 and

1996. Although Looney had received approximately $306,894 in gross income in

1995, he reported only $53,480 on his 1995 tax return. Similarly, although Looney

had received approximately $328,501 in gross income in 1996, he reported only



                                          3
$69,221 on his 1996 tax return. On April 22, 1998, Officer Kendall referred

Looney’s case to the criminal investigation division of the IRS.

      In 2003, Looney received notification that he was under investigation again.

Looney then consulted Paul Chappell (“Chappell”), a tax attorney. Thereafter,

Looney decided to file amended returns for the years 1995 and 1996, an original

return for 1997, and to seek a status determination from the IRS regarding other

years. Looney stated that in 2003, Richard Fuselier (“Fuselier”) prepared these

returns for him.

B.    Looney’s Evidentiary Proffers

      During the trial, Looney named several witnesses that he wished to call.

First, Looney indicated that he wished to call Chappell as a witness to explain the

advice that he gave to Looney. The government responded that Chappell’s

testimony regarding what Chappell told Looney in 2003 was irrelevant to what

Looney knew in 1995, 1996, 1997, and 1998. The district court determined that

Looney could not call Chappell because Chappell’s testimony was hearsay,

irrelevant to Looney’s reliance defense, and unnecessary since Looney already had

testified about Chappell’s advice.

      Looney and the government then stipulated that Chappell’s testimony would

have been that he told Looney: (1) to file amended tax returns for 1995 and 1996;



                                          4
(2) to file a tax return for 1997; (3) to include in those returns the income in the

UBTO, which previously was unreported income received from Starlight; and (4)

to wait to file tax returns for 1998 through 2002 until Looney received a status

determination letter from the IRS. The parties also stipulated that Chappell told

Looney that his previously held belief that the trust was not taxable “would not

hold up in court.” The stipulations were published to the jury.

       Looney also indicated that he intended to call Fuselier, who, in 2003,

prepared Looney’s amended 1995 and 1996 and original 1997 tax returns. Looney

indicated that Fuselier would explain the figures. The district court stated that it

would exclude Fuselier’s testimony because it was irrelevant to Looney’s state of

mind in 1995 and 1996.

      Finally, Looney stated that he intended to call his friend, Simmons, to testify

about Looney’s meetings with the IRS and what Simmons told Looney about

UBTOs. The district court stated that it was concerned that Simmons’s testimony

would confuse the jury, determining that it only would allow Simmons to testify:

(1) about conversations that he was present for; and (2) that he advised Looney

about UBTOs and sold the trust to Looney.

C.    Looney’s Waiver of Blakely 1 Rights



      1
          Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).

                                                5
      Before the jury instructions were finalized, Looney requested that the district

court require the jury to make a finding of the amount of his tax liability for

purposes of applying the Sentencing Guidelines. Subsequently, however, Looney

requested that the district court make a finding of the amount of his tax liability

beyond a reasonable doubt. After an off-the-record discussion, the following

colloquy took place:

      COURT:        What did you decide Mr. Hansen [Looney’s attorney]?

      HANSEN: I hate to admit this, Your Honor, but we’ll go with the
              Government’s position on this.

      COURT:        Okay. So that means we’re going to take the specific
                    question off the verdict form asking for the amount of the
                    tax –

      HANSEN: Yes.

      COURT:        – liability. And the defendant stipulates to the Court
                    making that determ ination at w hat standard,
                    preponderance of the evidence or beyond a reasonable
                    doubt?

      HANSEN: Well, I can’t imagine why I wouldn’t want it to be
              beyond a reasonable doubt.

      COURT:        I can’t either.

      After a brief recess, Hansen indicated that Looney agreed to having the

district court determine beyond a reasonable doubt the amount of his tax liability,

as follows:

                                           6
HANSEN: Your Honor, we did consult with Mr. Looney and he agrees
        with the decision not to put the additional line on to have the
        jury determine the tax liability, so we’ll leave that to the Court.

The district court questioned Looney regarding his request, as follows:

COURT:       All right. Mr. Looney, you’ve had a chance to talk to
             your lawyer about the Blakely decision and how it might
             impact your case and the sentencing on your case.

LOONEY: Yes, sir.

COURT:       And you’re willing to have the Court determine whatever
             Blakely issues may apply to sentencing?

LOONEY: Yes.

COURT:       And you’re willing for the guidelines to apply in so far as
             Blakely is concerned?

LOONEY: Yes.

COURT:       And have you made that decision freely and voluntarily?

LOONEY: Yes, sir.

COURT:       And the Court is to make any findings in that regard
             beyond a reasonable doubt. Is that right?

LOONEY: Yes, sir.

COURT:       Okay. I’m going to have one of my clerks put that in writing
             and have Mr. Hansen, have you and Mr. Looney sign it.

HANSEN: Your statement was fine, Your Honor.

COURT:       I don’t know that it has to be in writing, but I’d rather do it that
             way.

                                    7
       HANSEN: We don’t have a problem with that.

       In addition to agreeing that the district court, not the jury, would determine

his tax liability beyond a reasonable doubt, Looney signed a written waiver of a

jury finding his sentencing enhancements, which stated:

       I, Charles Looney, having consulted with counsel regarding the issues
       raised by the United States Supreme Court’s opinion in Blakely v.
       Washington, 124 S. Ct. 2531 (2004), do hereby knowingly,
       voluntarily and intelligently waive the right to have the jury determine
       any and all potential sentencing enhancements applicable under the
       United States Sentencing Guidelines. I understand that the Court will
       determine any applicable sentencing enhancements beyond a
       reasonable doubt.

       The jury found Looney not guilty on Counts 1 and 2 (willfully filing a false

income tax return for the years 1995 and 1996) and guilty on Count 3 (willfully

failing to file a tax return for the year 1997).

D.     PSI and Sentencing

       The Presentence Investigation Report (“PSI”) recommended a base offense

level of 15, based on a tax liability of $141,333 for the year 1997. See United

States Sentencing Guidelines (“U.S.S.G.”) §§ 2T1.1, 2T4.1 (1997).2 The PSI

based the $141,333 figure on the trial testimony of an IRS agent who computed



       2
         U.S.S.G. § 2T1.1 provides that the base offense level for willful failure to file a return is
the “[l]evel from § 2T4.1 (Tax Table) corresponding to the tax loss.” U.S.S.G. § 2T1.1(a)(1).
The Tax Table provides for an offense level of 15 if the tax loss is greater than $120,000.
U.S.S.G. § 2T4.1(J).

                                                  8
Looney’s 1997 taxable income based upon the commissions reported in 1997 less

the legitimate business expenses reported on the 1997 tax return.

      With a total offense level of 15 and a criminal history category of I,

Looney’s Guidelines range was 18-24 months’ imprisonment. However, because

the statutory maximum sentence was 12 months’ imprisonment, Looney’s

Guidelines imprisonment range was reduced to 12 months. See 26 U.S.C. § 7203.

      As to fines and restitution, the PSI noted that the statutory maximum fine

was $100,000. See 18 U.S.C. § 3571. The Guidelines fine range, however, was

$4,000 to $40,000. See U.S.S.G. § 5E1.2. The PSI also noted that Looney owed

$141,333 in restitution to the IRS. See 18 U.S.C. § 3663. The restitution amount

equaled the amount of Looney’s tax liability.

      Looney objected to the PSI, arguing that because no tax liability had been

charged in the indictment or found by the jury, the district court’s determination of

the amount of Looney’s tax liability would violate United States v. Booker, 543

U.S. __, 125 S. Ct. 738 (2005). Looney also contended that no fine or restitution

was justified.

      At sentencing, Looney argued that the district court’s determination of his

tax liability was improper because it was not charged in the indictment. Looney

contended that his Blakely waiver did not apply to the district court’s finding



                                          9
because Looney did not know when he waived his rights that the tax liability

would be “part of the proof” since it was not charged in the indictment. The

following exchange then took place between Hansen, Looney’s counsel, and the

district court:

       HANSEN: We think that under Apprendi [ v. New Jersey, 530 U.S.
               466, 120 S. Ct. 2348 (2000),] it’s improper for this to be
               added right now and also because of the fact that it’s
               really sentence enhancement. . .

       COURT:      Well, you waived the Blakely rights in writing; correct –
                   signed by you and your client.

                   ....

       HANSEN: . . . We did, and I don’t deny that, but let me comment
               about that. Blakely had come out, I think, right before
               the trial. At the time that we were asked to waive, I
               wasn’t aware of Blakely yet . . . . What we were told was
               that it was either a choice between waiving our right to
               have the jury decide this or not waiving it; [and] in the
               heat of the trial actually we decided to go ahead and
               waive it, but . . . .

       COURT:      And that was the whole purpose of your waiving it;
                   right? So, we did not put it to the jury. It was not argued
                   to the jury, and the jury didn’t make that decision
                   because you didn’t want them to make the decision, and
                   that’s why you signed the Blakely waiver; right?

       HANSEN: At the time, your honor, I didn’t realize that we were
               waiving a flaw in the indictment . . . .

       The district court denied Looney’s Blakely objection, stating: “You waived



                                         10
it – specifically waived it for that purpose, and you can’t go back over and do it

now.” After the government presented evidence as to the tax liability amount, the

court found, beyond a reasonable doubt, that the amount of tax liability for 1997

was $141,333. The district court then adopted the PSI’s Guidelines calculations,

including “restitution as determined by the [IRS].”

      As to Looney’s fine, the government requested that the district court fine

Looney $100,000, and the district court responded that under U.S.S.G. § 5E1.2,

“the guidelines call for a maximum fine of $40,000.” The government explained

that under 18 U.S.C. § 3571, $100,000 was the statutory maximum, while the

Guidelines fine was $4,000 to $40,000. The government clarified that it was

requesting the district court to exercise its discretion.

      The district court then noted that U.S.S.G. § 5E1.2, cmt. n. 4, provides for an

upward departure from the Guidelines fine range where two times the amount of

loss caused by the offense exceeds that maximum Guidelines range, and stated:

“So two times the amount of loss [$141,333] would be $282,000, I guess, limited

by the statutory maximum of [$100,000].”

      The district court then sentenced Looney to 12 months’ imprisonment and

imposed a fine of $75,000, which represented an upward departure from the

Guidelines fine range of $4,000 to $40,000 under U.S.S.G. § 5E1.2. Although the



                                            11
district court did not order restitution, it orally imposed, as a condition of Looney’s

supervised release, a requirement that Looney “shall cooperate with the [IRS]

regarding all outstanding taxes, interest, and penalties relating to the offense of

conviction.” The written judgment, however, stated that Looney owed restitution

in an amount that would be determined by the IRS.

      Before briefing was completed in the instant appeal, Looney filed a motion

with this Court for “release from fine pending appeal.” Looney’s motion argued

that because the imposition of a $75,000 fine was likely to be reversed on appeal,

this Court should stay payment of the fine pending the appeal’s final outcome.

This Court granted Looney’s motion to stay payment and remanded the case to the

district court for the limited purpose of “determining what conditions, if any,

should be imposed.” In our remand order, this Court noted that the statutory

maximum fine for an individual who violates 26 U.S.C. § 7203 is $25,000, and not

$75,000, as was imposed. On remand, the district court held a hearing and ordered

Looney to post a bond to secure the full $75,000.

                                  II. DISCUSSION

A.    Evidentiary Issues as to Conviction

      On appeal, Looney argues that he was denied his Sixth Amendment right to

present “all witnesses” that were central to his defense, which was good faith



                                           12
reliance. Looney contends that the district court should have allowed Chappell to

testify, pointing out that Chappell would have: (1) testified about the manner in

which he advised Looney; (2) explained why he advised Looney to seek a status

determination from the IRS; (3) spoken about Looney’s good faith, but misguided,

belief that the UBTO was legal; and (4) testified that the IRS’s internal documents

showed that Looney owed no taxes for 1997. Looney further argues that the

district court should have allowed Simmons to testify about the advice that he gave

Looney regarding the UBTO.3

       A violation of 26 U.S.C. § 7203 must be willful. See 26 U.S.C. § 7203. The

statutory willfulness requirement in § 7203 can be negated by a subjective,

“good-faith misunderstanding of the law or a good-faith belief that one is not

violating the law.” Cheek v. United States, 498 U.S. 192, 199-202, 111 S. Ct. 604,

609-11 (1991) (analyzing the term willfully as used in 26 U.S.C. § 7203). “Such a

question of whether a defendant believed in good faith that he was not violating the

tax law is for the jury.” United States v. Lankford, 955 F.2d 1545, 1550 (11th Cir.

1992). “[W]here the element of willfulness is critical to the defense, the defendant



       3
         We review the district court’s rulings on admissibility of evidence for an abuse of
discretion. United States v. Jiminez, 224 F.3d 1243, 1249 (11th Cir. 2000). “A district court’s
evidentiary rulings will only be reversed if the resulting error affected the defendant’s substantial
rights.” United States v. Delgado, 321 F.3d 1338, 1347 (11th Cir. 2003) (quotation marks and
citations omitted).

                                                 13
is entitled to wide latitude in the introduction of evidence tending to show lack of

intent.” Id. (internal quotation marks and citations omitted). However, where the

substance of the defendant’s good faith defense was presented to the jury,

notwithstanding the missing evidence, any error in not admitting the evidence did

not warrant a reversal. See United States v. Wellendorf, 574 F.2d 1289, 1290 (5th

Cir. 1978).4

       Evidence concerning the reasonableness of Looney’s belief that he was not

violating the tax laws when he failed to file a return in 1997 would have been

relevant to whether his violation was willful under 26 U.S.C. § 7203. See Fed. R.

Evid. 401; Cheek, 498 U.S. at 199-202, 111 S. Ct. at 609-11. However, the district

court did not err in refusing to allow Chappell to testify. Chappell advised Looney

in 2003, subsequent to the commission of the instant offense (failure to file a tax

return for 1997). Therefore, Chappell’s testimony would have been irrelevant to

Looney’s state of mind at the time of the offense. Additionally, Looney and the

government stipulated as to the contents of Chappell’s testimony, and those

stipulations were published to the jury.

       We also reject Looney’s contentions about Simmons’s testimony. First, the



       4
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as precedent all decisions of the former Fifth Circuit Court of Appeals prior to
October 1, 1981.

                                                14
district court did not prevent Simmons from testifying. In fact, Simmons testified

about the conversations that he witnessed between Looney and Officer Kendall.

Further, the district court did not prevent Simmons from testifying that he had

advised Looney about the UBTO and that he sold Looney the trust. The district

court simply ruled that Simmons could not testify regarding the substance of his

theory that the trusts were a lawful way to avoid payment of taxes. The district

court’s concern that Simmons’s testimony might confuse the jury regarding the

state of the law was not an abuse of discretion.

      Further, even assuming arguendo that the district court abused its discretion

in limiting Simmons’s testimony and not allowing Chappell to testify, Looney’s

substantial rights were not affected. Looney testified extensively concerning his

beliefs that the payment of taxes was voluntary, that compensation for his labor

was not taxable, and that the trusts were a lawful way of avoiding taxes. Looney

testified at length about specific individuals he relied upon for advice, including

Simmons. Also, the district court allowed Looney to read from taxation literature,

which the district court admitted into evidence. We find no reversible error in

Looney’s trial from any of the district court’s evidentiary rulings.

B.    Booker Issue

      Looney next argues that although he waived his right to have the jury



                                          15
determine “any and all sentencing enhancements,” he did not waive his right to

have the jury find the facts used to determine his base offense level. He contends

that the district court violated Booker when it calculated his offense level based on

a finding of the amount of his tax liability ($141,333) that was neither charged in

the indictment, nor proven to a jury.5

       In Booker, the Supreme Court held that Blakely applied to the Sentencing

Guidelines. United States v. Rodriguez, 398 F.3d 1291, 1297-98 (11th Cir.), cert.

denied, 125 S. Ct. 2935 (2005). “Under Booker, there are two kinds of sentencing

errors: one is constitutional and the other is statutory.” United States v. Dacus, 408

F.3d 686, 688 (11th Cir. 2005). “[T]he Sixth Amendment right to trial by jury is

violated where under a mandatory guidelines system a sentence is increased

because of an enhancement based on facts found by the judge that were neither

admitted by the defendant nor found by the jury.” Rodriguez, 398 F.3d at 1298

(emphasis omitted). The statutory error occurs when the district court sentences a

defendant “under a mandatory Guidelines scheme, even in the absence of a Sixth

Amendment enhancement violation.” United States v. Shelton, 400 F.3d 1325,

1330-31 (11th Cir. 2005).



       5
        Because Looney timely raised a Blakely objection in the district court, we review his
Blakely, now Booker, claim de novo. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).


                                              16
       In this case, we conclude that the district court did not violate Looney’s

Sixth Amendment rights. Looney clearly and expressly waived his right to have a

jury determine the amount of tax liability in this case. Although the district court

initially granted Looney’s request to submit sentencing factors to the jury, Looney

later requested that the district court redact the questions concerning his tax

liability from the verdict form. Looney also requested that the district court

determine the amount of his tax liability beyond a reasonable doubt and at

sentencing, the district court did so.6 Thus, Looney’s Sixth Amendment rights

were not violated.

       Although there is no Sixth Amendment violation in this case, the district

court committed statutory Booker error in sentencing Looney under a mandatory

Guidelines regime. While Looney waived the jury’s finding of both the amount of

his tax liability and any sentencing enhancements, Looney did not waive the right

to appeal his sentence and did not relinquish his right to be sentenced under an



       6
         Looney contends that he did not waive his right to have a jury determine his tax liability
in this case because his written waiver specifically waived the right to have a jury determine
“sentencing enhancements,” and Looney did not receive any. He argues that the district court
did not determine his tax liability in order to apply an “enhancement,” but instead to determine
his offense level. We need not decide whether the increase in Looney’s offense level was
effectively an enhancement for purposes of the written waiver because in any event, the record
shows that in the colloquy with the district court, Looney expressly waived his right to have a
jury determine the amount of his tax liability and expressly consented to the district court’s
determining the amount of his tax liability beyond a reasonable doubt.


                                                17
advisory Guidelines regime. Thus, we must determine whether the statutory error

in Looney’s sentencing is harmless. See Paz, 405 F.3d at 948.

      “A non-constitutional error is harmless if, viewing the proceedings in their

entirety, a court determines that the error did not affect the sentence, or had but

very slight effect. If one can say with fair assurance that the sentence was not

substantially swayed by the error, the sentence is due to be affirmed even though

there was error.” United States v. Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005)

(internal quotation marks, brackets, ellipses, and citations omitted). The burden is

on the government to show that the error was harmless and the standard “is not

easy for the government to meet.” Id.

      There is no evidence or any indication in the record revealing what effect, if

any, changing from a mandatory to an advisory approach would have had on the

district court’s sentencing decision in Looney’s case. “We simply do not know

what the sentencing court would have done had it understood the guidelines to be

advisory rather than mandatory, and had properly considered the factors in 18

U.S.C. § 3553(a).” United States v. Davis, 407 F.3d 1269, 1271 (11th Cir. 2005).

      Accordingly, we vacate Looney’s sentence and remand his case to the

district court for resentencing. Because we are remanding the case to the district

court, we note that the district court correctly calculated Looney’s Guidelines



                                           18
range. See United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005)

(stating that after Booker, district courts must consult the Guidelines and “[t]his

consultation requirement, at a minimum, obliges the district court to calculate

correctly the sentencing range prescribed by the Guidelines”).

       Thus, on remand, the district court is required to sentence Looney under an

advisory Guidelines regime, and shall consider the Guidelines range of 18-24

months’ imprisonment and “other statutory concerns as well, see [18 U.S.C.] §

3553(a) (Supp. 2004).” Booker, 125 S. Ct. at 757. Specifically, in this case, the

district court must abide by the statutory maximum sentence of 12 months’

imprisonment.7

C.     Fine Issue

       Next, Looney argues that the district court erred by imposing a $75,000 fine

because 26 U.S.C. § 7203 provides for a maximum fine of $25,000.8 Based on the

following, we conclude that the district court did not err, much less plainly err, by

       7
         We do not mean to suggest by our holding that the district court must impose any
particular sentence on remand. Rather, we merely hold that the government did not meet its
burden of showing that the Booker statutory error was harmless. We also do not attempt to
decide now whether a particular sentence might be reasonable in this case.
        We also note that Looney argues that a resentencing under an advisory Guidelines regime
would violate his due process rights and the ex post facto Clause because his new sentence could
exceed the maximum that he received under a mandatory pre-Booker Guidelines regime.
However, this Court has already rejected Looney’s due process/ex post facto argument. See
United States v. Duncan, 400 F.3d 1297, 1307-08 (11th Cir. 2005).
       8
        Because Looney did not raise the statutory maximum fine issue in the district court, we
review it for plain error. See United States v. Peters, 403 F.3d 1263, 1270 (11th Cir. 2005).

                                               19
imposing a fine of $75,000.

       Under 26 U.S.C. § 7203, “[a]ny person” who violates the statute is “guilty of

a misdemeanor” and “shall be fined not more than $25,000.” 26 U.S.C. § 7203.

However, in 1984, Congress added to the criminal code a general fine statute

applicable to all offenses. See 18 U.S.C. § 3571. Under § 3571, an individual who

has been found guilty of a Class A misdemeanor may be fined “not more than the

greatest of” the amount specified in the law setting forth the offense, $100,000, or

twice the gross gain or loss. See 18 U.S.C. §§ 3571(b), (d).9 In addition, § 3571(e)

provides that a defendant may be fined more than the amount listed in the statute

setting forth the offense of conviction, unless the offense of conviction exempts a

larger fine. Specifically, § 3571(e) states:

       Special rule for lower fine specified in substantive provision. – If a
       law setting forth an offense specifies no fine or a fine that is lower
       than the fine otherwise applicable under this section and such law, by
       specific reference, exempts the offense from the applicability of the
       fine otherwise applicable under this section, the defendant may not be
       fined more than the amount specified in the law setting forth the
       offense.

18 U.S.C. § 3571(e) (emphasis added). Thus, a lower fine limit in the statute

setting forth the offense of conviction does not preclude the district court from

imposing a higher fine under the general fine statute unless the statute setting forth


       9
       A violation of 26 U.S.C. § 7203 is a Class A misdemeanor, as it is punishable by not
more than one year of imprisonment. See 18 U.S.C. § 3559(a)(6); 26 U.S.C. § 7203.

                                              20
the offense of conviction specifically says so.

       The statute under which Looney was convicted, 26 U.S.C. § 7203, does not

contain any language exempting it from 18 U.S.C. § 3571, the general fine statute.

Thus, the statutory maximum fine applicable to Looney’s offense is either twice

the tax liability from Looney’s offense ($141,333) or $100,000.10

       We also note that the Guidelines fine range for Looney’s offense is $4,000

to $40,000. See U.S.S.G. § 5E1.2. However, in cases such as Looney’s, the

Guidelines provide district courts wide discretion to depart upwardly as to fines.

See U.S.S.G. § 5E1.2 cmt. n. 4.11 In this case, the district court chose to do so,

stating that it was imposing “a fine in the amount of $75,000. That’s an upward

departure made on the basis of 5E1.2, Note 4.” Thus, the district court did not err,

much less plainly err, in imposing a fine of $75,000, and we affirm Looney’s fine.

D.     Restitution Issue



       10
          We reject Looney’s argument that our remand order staying the payment of the fine
specifically directed that the maximum fine amount is $25,000. In our order granting Looney’s
motion to stay the payment of the fine, this Court noted that the maximum fine under § 7203 is
$25,000. The statement did not constitute a merits determination on the issue of the amount of
the fine.
       11
         The commentary to U.S.S.G. § 5E1.2 states:
       The Commission envisions that for most defendants, the maximum of the guideline
       fine range from subsection (c) will be at least twice the amount of gain or loss
       resulting from the offense. Where, however, two times either the amount of gain to
       the defendant or the amount of loss caused by the offense exceeds the maximum of
       the fine guideline, an upward departure from the fine guideline may be warranted.
U.S.S.G. § 5E1.2 cmt. n. 4.

                                              21
      Finally, Looney argues that the district court erred by imposing restitution

without ordering a specific amount. Looney argues that it was improper for the

district court to direct that the amount of restitution be determined by the IRS. We

agree. On remand, if the district court elects again to order Looney to pay

restitution, it must specify the amount due. See 18 U.S.C. § 3664(f)(1)(A);

U.S.S.G. § 5E1.1; United States v. Butler, 297 F.3d 505, 518-19 (6th Cir. 2002)

(district court may not delegate the determination of restitution to the IRS).

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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