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    United States v. Duane Hamelink, 4th Cir. (2012)

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    1) Duane Hamelink pled guilty to conspiracy to defraud the United States for failing to file income tax returns despite earning substantial income from his carpentry business. He received a 27 month prison sentence. 2) Hamelink's attorney appealed, questioning the constitutionality of including penalties and interest in calculating the tax loss amount for sentencing. However, Hamelink had stipulated to the tax loss amount in his plea agreement. 3) The appellate court affirmed Hamelink's conviction and sentence, finding that including penalties and interest in the tax loss calculation was not erroneous given that Hamelink willfully evaded his taxes.

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    United States v. Duane Hamelink, 4th Cir. (2012)

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    1) Duane Hamelink pled guilty to conspiracy to defraud the United States for failing to file income tax returns despite earning substantial income from his carpentry business. He received a 27 month prison sentence. 2) Hamelink's attorney appealed, questioning the constitutionality of including penalties and interest in calculating the tax loss amount for sentencing. However, Hamelink had stipulated to the tax loss amount in his plea agreement. 3) The appellate court affirmed Hamelink's conviction and sentence, finding that including penalties and interest in the tax loss calculation was not erroneous given that Hamelink willfully evaded his taxes.

    Original Description:

    Filed: 2012-06-08 Precedential Status: Non-Precedential Docket: 11-4893

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    1) Duane Hamelink pled guilty to conspiracy to defraud the United States for failing to file income tax returns despite earning substantial income from his carpentry business. He received a 27 month prison sentence. 2) Hamelink's attorney appealed, questioning the constitutionality of including penalties and interest in calculating the tax loss amount for sentencing. However, Hamelink had stipulated to the tax loss amount in his plea agreement. 3) The appellate court affirmed Hamelink's conviction and sentence, finding that including penalties and interest in the tax loss calculation was not erroneous given that Hamelink willfully evaded his taxes.

    Copyright:

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    109 views5 pages

    United States v. Duane Hamelink, 4th Cir. (2012)

    Uploaded by

    Scribd Government Docs
    1) Duane Hamelink pled guilty to conspiracy to defraud the United States for failing to file income tax returns despite earning substantial income from his carpentry business. He received a 27 month prison sentence. 2) Hamelink's attorney appealed, questioning the constitutionality of including penalties and interest in calculating the tax loss amount for sentencing. However, Hamelink had stipulated to the tax loss amount in his plea agreement. 3) The appellate court affirmed Hamelink's conviction and sentence, finding that including penalties and interest in the tax loss calculation was not erroneous given that Hamelink willfully evaded his taxes.

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    of 5

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 11-4893

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    DUANE HAMELINK,
    Defendant - Appellant.

    Appeal from the United States District Court for the Western
    District of North Carolina, at Charlotte.
    Robert J. Conrad,
    Jr., Chief District Judge. (3:10-cr-00042-RJC-1)

    Submitted:

    May 24, 2012

    Decided:

    June 8, 2012

    Before WILKINSON, WYNN, and DIAZ, Circuit Judges.

    Affirmed by unpublished per curiam opinion.

    Dianne Jones McVay, JONES MCVAY LAW FIRM, PLLC, Charlotte, North
    Carolina, for Appellant.
    Jenny Grus Sugar, Assistant United
    States Attorney, Charlotte, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Duane Hamelink pled guilty, pursuant to a written plea
    agreement,
    States,

    to

    in

    one

    count

    violation

    of

    of

    conspiracy

    18

    U.S.C.

    to

    defraud

    371

    sentenced to 27 months imprisonment.

    the

    (2006),

    United

    and

    was

    On appeal, Hamelinks

    attorney has filed a brief pursuant to Anders v. California, 386


    U.S. 738 (1967), in which she asserts that she has found no
    meritorious issues, but questions the constitutionality of the
    sentencing enhancement Hamelink received for the amount of tax
    loss.

    Although

    advised

    of

    his

    right

    to

    supplemental brief, Hamelink has not done so.

    file

    pro

    se

    For the reasons

    that follow, we affirm.


    Hamelink, and his wife Eileen, owned and operated a
    residential carpentry business in Charlotte, North Carolina.

    At

    his guilty plea hearing, Hamelink admitted that, despite earning


    substantial

    income

    from

    income tax returns.

    his

    business,

    he

    failed

    to

    file

    any

    Hamelink also admitted that he had taken a

    variety of steps to conceal his income and assets from the IRS,
    including the use of bogus trusts, nominee entities, and related
    domestic

    and

    foreign

    Hamelink

    stipulated

    bank
    that

    accounts.
    the

    In

    amount

    of

    the

    plea

    agreement,

    tax

    loss

    known,

    or

    reasonably foreseeable, to him was more than $1 million but less


    than

    $2.5

    22.

    See

    million,
    U.S.

    and

    Sentencing

    that

    the

    base

    Guidelines
    2

    offense

    Manual

    level

    (USSG)

    was
    2T4.1

    (2010).

    After a two-level enhancement for use of sophisticated

    means,

    USSG

    acceptance

    2T1.1(b)(2),

    of

    responsibility,

    offense level was 21.


    Hamelinks

    three-level

    USSG

    3E1.1,

    reduction

    Hamelinks

    for
    total

    With a criminal history category of I,

    advisory

    imprisonment.

    and

    Guidelines

    range

    was

    37-46

    months

    However, the district court granted a three-level

    downward departure, resulting in a total offense level of 18,


    with

    corresponding

    imprisonment.
    range.

    guidelines

    range

    of

    27-33

    months

    The court imposed a sentence at the bottom of the

    Hamelink timely appealed.


    Counsel

    questions

    whether

    USSG

    2T4.1

    is

    unconstitutional because it allows inclusion of penalties and


    interest

    assessed

    by

    the

    IRS

    in

    calculating

    attributed for sentencing purposes.


    that:

    amount

    of

    loss

    Counsel concedes, however,

    (1) Hamelink stipulated to the amount of loss in the plea

    agreement; and (2) there is no case law supporting her argument.


    This
    reasonableness
    standard.
    In

    reviews

    under

    this

    correctly

    sentence.

    Hamelinks

    deferential

    sentence

    for

    abuse-of-discretion

    Gall v. United States, 552 U.S. 38, 41, 51 (2007).

    conducting

    court

    court

    review,

    we

    must

    calculated

    Id. at 49, 51.

    application

    of

    the

    conclusions

    de

    novo

    the

    that

    the

    defendants

    district

    Guidelines

    When reviewing the district courts

    Guidelines,
    and

    ensure

    factual
    3

    this

    court

    findings,

    reviews
    such

    as

    legal
    loss

    calculations,

    for

    clear

    United

    error.

    States

    v.

    Sosa-

    Carabantes, 561 F.3d 256, 259 (4th Cir. 2009); see also United
    States

    v.

    Allen,

    491

    F.3d

    178,

    193

    (4th

    Cir.

    2007)

    (In

    reviewing [a] loss calculation, we review de novo the district


    courts

    interpretation

    of

    what

    constitutes

    loss,

    while

    accepting the calculation of loss absent clear error.).


    Government

    need

    only

    establish

    preponderance of the evidence.


    277, 282 (4th Cir. 2010).

    the

    tax

    loss

    amount

    The
    by

    United States v. Mehta, 594 F.3d


    Here, Hamelink stipulated to the

    amount of tax loss and is therefore bound by that admission.

    In

    any event, inclusion of penalties and interest in calculating


    tax loss was not erroneous.
    Tax loss, within the meaning of USSG 2T2.1 is the
    amount of taxes that the taxpayer failed to pay or attempted
    not to pay. USSG 2T2.1(a).

    Section 2T4.1(c) provides that:

    tax loss does not include penalties and interest except in


    cases

    of

    7203.
    was

    the

    willful

    evasion

    under

    either

    26

    U.S.C.

    7201

    or

    Hamelink clearly willfully evaded income taxes, as that


    primary

    goal

    of

    the

    conspiracy.

    Accordingly,

    amounts were properly counted in amount of tax loss.

    these

    Moreover,

    it is well established that the additions to tax for penalties


    and interest are civil, not criminal, in nature, and therefore
    do not implicate double jeopardy.
    303 U.S. 391 (1938).
    4

    See Helvering v. Mitchell,

    In accordance with Anders, we have reviewed the record


    in this case and have found no meritorious issues for appeal.
    We therefore affirm Hamelinks conviction and sentence.

    This

    court requires that counsel inform Hamelink, in writing, of the


    right to petition the Supreme Court of the United States for
    further review.

    If Hamelink requests that a petition be filed,

    but counsel believes that such a petition would be frivolous,


    then counsel may move in this court for leave to withdraw from
    representation.

    Counsels motion must state that a copy thereof

    was served on Hamelink.


    We dispense with oral argument because the facts and
    legal
    before

    contentions
    the

    court

    are

    adequately

    and

    argument

    presented

    would

    not

    in
    aid

    the
    the

    materials
    decisional

    process.

    AFFIRMED

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