July 2012 Archives

An Overview of Tax Crimes Sentencing pursuant to the U.S. Sentencing Guidelines

July 25, 2012, by The McKellar Law Firm, PLLC

Determining the appropriate sentence for tax-related crimes can often cause even experienced criminal defense attorneys to struggle. The main hurdle in determining the appropriate Sentencing Guidelines range is calculating the appropriate "tax loss." This short blog entry will not address all the nuances in determining tax loss, but rather will focus on how the Sentencing Guidelines are applied once the tax loss amount has been determined.

One of the factors which a sentencing judge will consider is the "Tax Table" contained in Section 2T4.1 of the Federal Sentencing Guidelines. Although the Sentencing Guidelines are advisory only, they can be helpful to assist in determining a potential range of punishment that a judge may consider when sentencing a taxpayer convicted of committing a tax crime. The table below classifies the appropriate offense level in light of the amount of tax loss.

Tax Guidelines

§2T4.1. Tax Table
Tax Loss (Apply the Greatest) Offense Level
(A) $2,000 or less 6
(B) More than $2,000 8
(C) More than $5,000 10
(D) More than $12,500 12
(E) More than $30,000 14
(F) More than $80,000 16
(G) More than $200,000 18
(H) More than $400,000 20
(I) More than $1,000,000 22
(J) More than $2,500,000 24
(K) More than $7,000,000 26
(L) More than $20,000,000 28
(M) More than $50,000,000 30
(N) More than $100,000,000 32
(O) More than $200,000,000 34
(P) More than $400,000,000 36.

Once the amount of Tax Loss has been determined, a taxpayer will know his/her Offense Level. The Offense Level will correspond to a range of punishment (in months) as set forth in the Sentencing Table below:

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The Sentencing Guidelines are one of many factors which a sentencing judge should consider before sentencing a convicted tax defendant. An experienced criminal defense and tax attorney can be an invaluable asset in presenting the best case possible for convicted tax defendants.

Tennessee Court of Appeals Rules that a Victim of a Sexual Crime can also be an Accomplice to the Same Crime

July 23, 2012, by The McKellar Law Firm, PLLC

In an odd ruling, the Tennessee Court of Criminal Appeals, in the matter of State v. Collier, No. W2010-01606-CCA-R3-CD, ruled earlier this month that a victim in an aggravated statutory rape case can also be an accomplice to the same crime.

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The defendant was a forty-two year-old man who was convicted of aggravated statutory rape after having sexual intercourse with a fourteen year-old victim. While the defendant argued at trial that he never had sexual intercourse with her, on appeal he argued that the evidence was not sufficient to convict him because the victim was, in fact, an accomplice to the criminal activity.

Under current Tennessee common law, whether a sex crime victim over the age of thirteen is an accomplice depends on whether the victim voluntarily consented to the sexual activity. See State v. Scott, 338 S.W.2d 581, 583 (Tenn. 1960). A "victim," per T.C.A. § 39-13-501(8) is defined as the "person alleged to have been subjected to criminal sexual conduct." An "accomplice," as set forth in State v. Green, 915 S.W.2d 827, 831 (Tenn. Crim. App. 1995), is defined as one who "knowingly, voluntarily, and with common intent unites with the principal offender in the commission of a crime."

While the appellate court in the Collier case stated it had misgivings about classifying sex crime victims as accomplices, this did not stop it from admitting, "Under the current law, it appears that the victim in this case would legally be considered an accomplice to her own statutory rape." The appellate court reasoned that because the victim admitted to having consensual sex, she would be considered an accomplice to the crime of committing aggravated statutory rape.

The effect of this somewhat bizarre reasoning is that the victim's testimony would now be subject to "accomplice scrutiny." Under Tennessee law regarding accomplice testimony, "there must be some fact testified to, entirely independent of the accomplice's testimony, which, taken by itself, leads to the inference, not only that the crime has been committed, but also that the defendant is implicated in it; and this independent corroborative testimony must also include some fact establishing the defendant's identity." State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001). This "accomplice scrutiny" is a higher standard than mere testimony provided by a victim. But in the end, the appellate court affirmed the defendant's conviction because other testimony and evidence corroborated with the victim/accomplice's testimony.

Norman McKellar and Sarah Easter Awarded "Top Attorney" by Cityview Magazine

July 17, 2012, by The McKellar Law Firm, PLLC

After over 17,800 votes were cast by fellow attorneys, Cityview magazine released its "Top Attorney" edition, and The McKellar Law Firm, PLLC, was honored to have two of its attorneys, Norman D. McKellar and Sarah C. Easter, receive Top Attorney designation.

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For Mr. McKellar, this marks the 3rd consecutive year to receive such designation. To learn more about Mr. McKellar, please visit his profile page or his ratings and reviews on Avvo.com.

For Mrs. Easter, she received her Top Attorney designation for Family Law, Divorce, and Child Support. You can learn more about Mrs. Easter by visiting her profile page, or by reading her blog, Tennessee Divorce Attorney Blog.

Maryville, Tennessee Man Faces Deportation Due to Crimes of Moral Turpitude

The Immigration and Naturalization Act (INA) provides that an alien or lawful permanent resident (LPR) is deportable if he/she is convicted of a crime of moral turpitude, and other conditions set forth in INA Sec. 237(a)(2)(A)(i) are met. Wes Wade of the Daily Times has an article today about Maryville, Tennessee, LPR Samuel John Phillip Lloyd, who is facing deportation for the ominously named "crimes of moral turpitude."

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Lloyd is a British national and also an LPR of the United States. According to the article, Sheriff's Office records show that Lloyd has received more than 40 criminal charges, ranging from theft to aggravated burglary, to which Lloyd pled guilty in 2010. This aggravated burglary charge is a class C felony, and this charge apparently attracted the attention of Immigration and Customs Enforcement officers, who have initiated deportation proceedings against Lloyd. Lloyd is currently being held in the Oakdale, Louisiana federal detention facility, awaiting to appear before an Immigration Judge to determine whether Lloyd will be deported.

To be deportable under INA Sec. 237(a)(2)(A)(i), a person must be (1) convicted of a crime involving moral turpitude, (2) which was committed within 5 years of admission to the U.S. (unless entry was via an S Visa), and (3) the conviction must be for a crime in which a sentence of one year or longer may be imposed. For this last requirement, the actual sentence imposed may be less than 1 year, but the statute only requires that the offense carry a potential sentence of 1 year or longer.