United States v. Walton, 17-2984

907 F.3d 548

UNITED STATES of America, Plaintiff-Appellee,

v.Marcel A. WALTON, Defendant-Appellant.

No. 17-2984

United States Court of Appeals, Seventh Circuit.

Argued October 2, 2018

Decided October 25, 2018

Georgia N. Alexakis, Attorney, Carol A. Bell, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL, for Plaintiff-Appellee.

Adam P. Merrill, Attorney, SPERLING & SLATER, P.C., Chicago, IL, for Defendant-Appellant.

Before Bauer, Kanne, and Scudder, Circuit Judges.

Per Curiam.

Marcel Walton, a "Grand Sheik" of the Moorish Science Temple of America in Chicago, stole more than $3 million from the Internal Revenue Service ("IRS") by filing and assisting others in filing fraudulent tax returns. He pled guilty to mail fraud, see 18 U.S.C. § 1341, and was sentenced to 68 months' imprisonment—below the advisory guidelines range. On appeal, Walton asserts that the district court violated his due-process rights by relying on inaccurate information in determining the appropriate sentence. Because Walton does not show that any information was false, nor that the district court relied on any inaccuracies, we affirm.

I. BACKGROUND

The Moorish Temple is a religious organization that believes Moors are the rightful owners of North America. As a "Grand Sheik," Walton preached that the United States government occupies Moorish land and now owes its members payment, which they could acquire by filing specialized tax returns. Many people filed fraudulent tax returns at Walton's urging. He took a percentage of the refunds some of his followers received.

Walton pled guilty to mail fraud. At the close of the change-of-plea hearing, the judge asked the government to provide information about defendants who had been prosecuted for similar schemes—specifically, the actual and intended-loss amounts and the ultimate sentences. The government's submission (included as an attachment to the Presentence Investigation Report ("PSR") and updated via email before sentencing) shows that the other defendants received sentences ranging from probation to 28 months' imprisonment. Meanwhile, the probation officer calculated a guidelines imprisonment range of 70 to 87 months for Walton. Walton had a criminal history category of I and the offense level was set at 27, based on an agreed-upon intended-loss amount of $16,391,161.

At the sentencing hearing, neither party contested the guidelines calculation, including the use of $16 million as the intended-loss amount,¹ but they disputed the appropriate sentence. The government argued that Walton's leadership role—specifically, instructing at least nine people to prepare, or preparing for them, phony tax returns—distinguished him from the defendants listed in the chart and warranted a higher sentence within the guidelines range. The government also emphasized that in some cases the victims were "vulnerable" because there were elderly, homeless, destitute, or caring for sick relatives.

Walton asked for a 12-month sentence, based in part on his personal circumstances, including his age, his history of employment, his lack of criminal history, and his ready guilty plea. And although he admitted that "he helped others do it," he emphasized that he did not invent the scheme. He further argued that of all the defendants on the government's chart—which his counsel deemed "helpful"—"very, very, very few people have ever been sentenced within the guidelines." Moreover, Walton said, a higher sentence would result in unwarranted sentencing disparities because he learned about the scheme from a defendant in another case, who had received a 24-month sentence.

The district court imposed a 68-month sentence. The judge emphasized Walton's exploitation of vulnerable followers, some of whom were elderly or homeless, and many of whom believed his religious rhetoric and had not committed crimes before meeting him. The judge also confirmed that no one on the government's chart received a leader-organizer enhancement, as Walton had. The "most aggravating fact" was that Walton was responsible for "law-abiding people who got into this and ended up ... going to jail" just so he could get a "piece of the action." Regarding the need to avoid unwarranted sentencing disparities, the district court explained that the "key distinguishing feature" was that the others, with two possible exceptions, "weren't leaders," whereas many people, some of whom were prosecuted, filed phony returns "because of Mr. Walton."

To the defendant's vague protest that he "didn't necessarily have access to the factual backgrounds concerning all similar cases ... including the ones on [the government's] chart," the judge responded that there was no dispute that this defendant, Walton, lured at least nine people into criminal activity. Further, considering potential sentencing disparities, the district judge disregarded the chart as useless, because the intended losses for all the listed defendants were not comparable. Finally, after announcing the sentence, the judge asked Walton if he wished to address "anything else," and Walton said he did not.

II. ANALYSIS

On appeal, Walton argues that the district court erred at sentencing by relying on untested representations about Walton's leadership role and uncorroborated sentencing data about other tax-fraud prosecutions. If a defendant has preserved his or her objection, we review procedural sentencing errors de novo . United States v. Young , 863 F.3d 685, 688 (7th Cir. 2017). But Walton's conduct at sentencing shows a forfeiture: he relied on some of the information he now challenges and only vaguely protested that he "didn't necessarily have access to the factual backgrounds concerning all similar cases," after the judge stated that Walton's leader-status distinguished him from those prosecuted in similar schemes. And Walton failed to challenge at all the government's statements regarding the vulnerability of his co-schemers. Therefore, we review for plain error. See United States v. Butler , 777 F.3d 382, 386–87 (7th Cir. 2015).

The Fifth Amendment guarantees the right to be sentenced based on accurate information. See United States v. Tucker , 404 U.S. 443, 448–49, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) ; United States v. Adams , 879 F.3d 826, 829 (7th Cir. 2018). To establish a violation, a defendant must show both that the information is false and that the court relied on it. United States v. Musgraves, 831 F.3d 454, 469 (7th Cir. 2016). Walton can show neither, and so there is no error, let alone one that is "plain."

Walton begins by listing four "unproven, disputed, and unsupported facts": (1) he preyed on vulnerable followers; (2) he was a "leader" in contrast to "all others" who have been prosecuted for similar crimes and that he led other people into his scheme; (3) he profited from a 10% "tithe" from followers who got unwarranted tax refunds; and (4) the $16 million intended loss far exceeded the stakes in other, similar cases. Walton says that he has "since verified" that many of the facts the government stated were "false and unreliable," by examining public records in other prosecutions. The remainder of these facts he dismisses as "unsupported."

It appears that, in part, Walton argues that these statements are "unsupported" because the "record on appeal" excludes the documents before the district court that could have supported them, such as the parties' sentencing memoranda, the probation officer’s sentencing recommendation, and the government's version. But there are no documents in the appellate record that should not be there. And even if the record on appeal did exclude the documents that Walton disputes, the uncontested record provided a sufficient basis for the district court to make the findings Walton challenges, so this argument lacks merit.

Walton contends first that the government...