Appeal from the United States District Court for the Central District of California, George H. Wu, District Judge, Presiding, D.C. No. 08-CR-0093 GW.
The opinion of the court was delivered by: Fogel, District Judge
Argued and Submitted February 10, 2010 -- Pasadena, California
Before: Barry G. Silverman and Sidney R. Thomas, Circuit Judges, and Jeremy Fogel, District Judge*fn1
On March 24, 2008, Appellant Abdul Wahid pled guilty to three counts of mail fraud (18 U.S.C. § 1341), one count of theft of government property (18 U.S.C. § 641), one count of aggravated identity theft (18 U.S.C. § 1028A), and five counts of tax evasion (26 U.S.C. § 7201). He now appeals his sentence, presenting two separate issues. First, he argues that the district court failed to recognize that it had discretion to reduce the sentence it imposed for mail fraud in light of the two-year mandatory sentence for aggravated identity theft under 18 U.S.C. § 1028A. Second, he claims that the district court erred in assessing criminal history points under U.S.S.G. § 4A1.2 for his prior misdemeanor convictions. Although we vacate the judgment and remand to permit the district court to correct a clerical error, we affirm the sentence.
A. Criminal Conduct Charged in the Information
From 2000 to 2007, Wahid owned and operated a tax preparation business called Global Accounting and Tax Services, Inc. Although he is not a certified public accountant ("CPA"), he held himself out as such.
Counts One through Three of the information alleged mail fraud. Wahid operated several other companies in addition to Global Accounting and Tax Services, Inc., including one called Internal Recovery Systems (doing business as "IRS") and others doing business as "EED," "BOE," and "FTB" (all of which are acronyms for tax collecting agencies in California). Wahid defrauded his clients by preparing two sets of tax returns for each client. One set of returns, which Wahid showed to his clients, indicated that taxes were owed. Wahid directed his clients to make out checks to "IRS" or another applicable acronym, which he then deposited into one of his business accounts. The second set of returns indicated that the clients had no tax liability or were owed a refund. Wahid forged his clients' signatures and provided these returns to the appropriate tax collection agencies. In a variation on this scheme, Wahid falsely told clients that he had paid their tax liability directly and requested reimbursement. The government identified more than 150 victims of these schemes.
2. Theft of Government Property
Count Four alleged theft of government property. From 2001 to 2006, Wahid filed false tax returns using Social Security Numbers assigned to other people. These returns indicated that the individuals were owed tax refunds and requested that the refunds be sent to Wahid's address. Wahid deposited the refunds into his personal accounts. For example, Wahid received a refund of $14,429 using the Social Security Number of an individual with the initials "S.K.M." The real S.K.M. was a friend of Wahid who was not currently living in the United States.
3. Aggravated Identity Theft
Count Five alleged aggravated identity theft. Aggravated identity theft involves knowingly transferring, possessing, or using the identification of another person in connection with the commission of certain enumerated felonies. 18 U.S.C. § 1028A. Theft of government property is such a felony. 18 U.S.C. § 1028A(c)(1). As described above, Wahid knowingly used S.K.M.'s Social Security Number in the commission of Count Four.
Counts Six through Ten alleged tax evasion. Wahid did not file tax returns for his own income from 2002 to 2006. The Internal Revenue Service determined that Wahid's taxable income during this period was $2,921,010.
B. Continuing Criminal Activity While Released on Bond
Following his arrest, Wahid was released on a $5,000 unse-cured appearance bond. While on pretrial release, Wahid misappropriated three additional checks using the same scheme described in connection with the mail fraud allegations. Wahid also filed false tax returns for his wife for 2004 and 2005 and used a Taxpayer Identification Number that belonged to another person.
The district court sentenced Wahid to 132 months in prison. It also ordered Wahid to pay restitution in the amount of $1,280,617.33 and ...