Enhancement for leader/organizer affirmed

United States of America v. Gehrmann, 2020 WL 4280673 (10th Cir. July 28, 2020) (published): Dr. Gehrmann appealed the two-level adjustment under U.S.S.G. § 3B1.1(c) for his aggravating role in a conspiracy to defraud the United States. He and his codefendant, Dr. Carlson, owned and operated a chiropractic center. They were indicted on four felony charges each: one count of conspiracy to defraud the United States in violation of 18 U.S.C. § 371 and three counts of filing false tax returns in violation of 26 U.S.C. § 7206(1). A month later, a cooperator, Dr. Davis pleaded guilty to willfully delivering a false tax return to the Internal Revenue Service in violation of 26 U.S.C. § 7207, a misdemeanor. Dr. Carlson later pleaded guilty to a felony count of filing a false tax return in violation of 26 U.S.C. § 7206(1). After a trial, Dr. Gehrmann was convicted on all four counts. At sentencing, the court applied a total offense level 18 and a criminal history category I, resulting in a Guidelines range of 27–33 months. The Court then varied to a 24-month sentence. On appeal, Dr. Gehrmann raised two issues: 1) the adequacy of the court’s explanation for the two-level enhancement and 2) the evidentiary support for it. At sentencing, Dr. Gehrmann never objected to the adequacy of the court’s explanation of its sentencing decision, so the appellate court reviewed for plain error. It found the district court’s explanation – a conclusory statement that the doctor was “at a minimum, a leader or organizer” -- was not a sufficient explanation, but that Dr. Gehrmann could not show a reasonable probability of a different sentencing outcome on a remand. The enhancement for leader/organizer was supported by the sentencing court’s findings, undisputed findings in the presentence report and the facts in Dr. Gehrmann’s appellate briefs. Dr. Gehrmann had organized the conspiracy with Dr. Carlson and then the two of them had recruited Dr. Davis. Moreover, he oversaw the implementation of the conspiracy. For these same reasons, sufficient evidence supported the enhancement. Judge Lucero dissented. He agreed that the sentencing court failed to make sufficient findings. However, he accused the majority of improperly making its own findings and failing to consider Dr. Gehrmann’s role relative to the other members of the conspiracy.