Opinion
06 Cr. 05-01 (RWS).
June 12, 2006
SENTENCING OPINION
Defendant William Thomas Osbourne ("Osbourne") has pled guilty to failure to file an income tax return, in violation of 26 U.S.C. § 7203, a Class A misdemeanor. For the reasons set for below, Osbourne is hereby sentenced to one year of probation under the United States Sentencing Guidelines.
Prior Proceedings
On January 4, 2006, Osbourne voluntarily surrendered to authorities and was released on his own recognizance. On the same date, an information was filed in the Southern District of New York, charging Osbourne with failure to file an income tax return in violation of 26 U.S.C. § 7203.
On January 4, 2006, Osbourne appeared before the Honorable Gabriel W. Gorenstein and pled guilty to the above charge. Osbourne is scheduled to be sentenced before this Court on June 12, 2006.
The Sentencing Framework
In accordance with the Supreme Court's decision in United States v. Booker, 125 S. Ct. 738 (2005) and the Second Circuit's decision in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), the sentence to be imposed was reached through consideration of all of the factors identified in 18 U.S.C. § 3553(a), including the advisory Sentencing Guidelines (the "Guidelines") establishing by the United States Sentencing Commission. Thus, the sentence to be imposed here is the result of a consideration of:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed —
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for —
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines . . .;
(5) any pertinent policy statement . . . [issued by the Sentencing Commission];
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.18 U.S.C. § 3553(a). A sentencing judge is permitted to find all the facts appropriate for determining a sentence, whether that sentence is a so-called Guidelines sentence or not. See Crosby, 397 F.3d at 111.
The Defendant
Osbourne was born on July 2, 1948 in Akron, Ohio. Osbourne now resides with his parents in Tennessee Ridge, Tennessee. His mother suffers from Alzheimer's Disease, and Osbourne assists in caring for her and his father. Osbourne is single and does not have any children. He is college-educated and, in recent years, has been sporadically employed as an adjunct teacher at a local college.
Osbourne suffers from high blood pressure, for which he takes medications. Additionally, Osbourne suffers from depression. He has sought therapeutic services and maintains a longstanding relationship with a doctor that he began seeing in 1983. Osbourne's doctor reported that Osbourne has made significant progress over the past five years and that Osbourne is currently "very stable." According to Osbourne's doctor, a term of imprisonment would be detrimental to Osbourne's emotional health.
The Offense Conduct
An investigation of the underlying offense was conducted by the Internal Revenue Service (the "IRS").
As of April 15, 2001, Osbourne had received an annual gross income of $29,980. Of this amount and during that year, he had received a $5,000 cash payment from an operative of the Iraqi Intelligence Service. Osbourne failed to disclose this payment, as well as his total income for that year, to the IRS when completing his income tax return for the tax year 2000. Osbourne caused a tax loss of $6,338.
Relevant Statutory Provisions
The maximum term of imprisonment that may be imposed is one year, pursuant to 26 U.S.C. § 7203. If a term of imprisonment is imposed, the Court may impose a term of supervised release of not more than one year, pursuant to 18 U.S.C. § 3583(b) (3).
Osbourne is eligible for up to five years' probation, pursuant to 18 U.S.C. § 3561(c) (2).
The maximum fine that may be imposed is $100,000, pursuant to 26 U.S.C. § 7203. A special assessment of $25 is mandatory, pursuant to 18 U.S.C. § 3013. Pursuant to 18 U.S.C. § 3663A, restitution in the amount of $6,338 must be ordered in this case.
The Guidelines
The November 1, 2004, edition of the United States Sentencing Commission Guidelines Manual ("the Guidelines") has been used in this case for calculation purposes, in accordance with Guidelines § 1B1.11(b) (1).
The guideline for a violation of 26 U.S.C. § 7203 is found in § 2T1.1. Osbourne caused a tax loss of $6,338. Therefore, pursuant to §§ 2T1.1(a) (1) and 2T4.1(C), the base offense level is 10.
Osbourne has shown recognition of responsibility for his offense. Therefore, his offense level is reduced by two levels.See U.S.S.G. § 3E1.1(a). The resulting adjusted offense level is 8.
Criminal History
Osbourne has no prior criminal convictions. The total number of criminal history points is zero. According to the sentencing table at Chapter 5, Part A, zero criminal history points establishes a Criminal History Category of I.
Sentencing Options
Based on a total offense level of 8 and a Criminal History Category of I, the guideline range for imprisonment is zero to six months.
The guideline range for a term of supervised release is one year, pursuant to § 5D1.2(a) (3). If a sentence of imprisonment of one year or less is imposed, a term of supervised release is not required but is optional, pursuant to § 5D1.1(b).
The defendant is eligible for probation because the applicable guideline range is in Zone A of the Sentencing Table, pursuant to § 5B1.1(a) (1)). If the Court imposes probation, the term must be at least one year, but not more than five years, because the offense level for the instant offense is eight. See § 5B1.2 (a) (1).
The fine range for the instant offense is from $1,000 to $10,000, pursuant to §§ 5E1.2(c) (3) (A) and (B).
In accordance with the provisions of § 5E1.1, restitution shall be ordered.
The Remaining Factors of Section 3553(a)
Having engaged in the Guideline analysis, this Court also gives due consideration to the remaining factors identified in 18 U.S.C. § 3553(a) in order to impose a sentence "sufficient, but not greater than necessary" as is required in accordance with the Supreme Court's decision in United States v. Booker, 125 S. Ct. 738 (2005) and the Second Circuit's decision in United States v. Crosby, 397 F.3d 103 (2nd Cir. 2005). In particular, section 3553(a) (1) asks that the sentence imposed consider both "the nature and circumstances of the offense and the history and characteristics of the defendant," while section 3553(a) (2) (A) demands that the penalty "provide just punishment for the offense" that simultaneously "afford[s] adequate deterrence to criminal conduct" as required by § 3553(a) (2) (B).
Having considered the factors set forth in section 3553(a), it is concluded that a guidelines sentence is warranted in the instant case.
The Sentence
Osbourne is hereby sentenced to a term of one year of probation.
As mandatory conditions of probation, Osbourne shall: (1) not commit another federal, state, or local crime; (2) not illegally possess a controlled substance; and (3) not possess a firearm or destructive device.
The following special conditions of probation are also imposed: (1) the defendant shall provide the probation officer with access to any requested financial information; and (2) the defendant shall not incur any new credit charges or open additional lines of credit without the approval of the probation officer unless the defendant is in compliance with the installment payment schedule.
Osbourne is further ordered to make restitution in the amount of $6,338, payable to the Clerk, U.S. District Court, 500 Pearl Street, New York, NY 10007, for disbursement to the IRS. The restitution shall be paid in monthly installments of at least $200 over a period of supervision to commence 30 days after the date of the judgment.
Osbourne shall also pay to the United States a special assessment of $25, which shall be due immediately. Due to the imposition of restitution, the fine in this case is waived.
It is so ordered.