USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1969

UNITED STATES OF AMERICA,

Appellant,

v.

JOHN A. BRENNICK,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy J. Gertner, U.S. District Judge]

___________________

____________________

Before

Boudin, Circuit Judge,

_____________

Godbold and Cyr, Senior Circuit Judges.

_____________________

____________________

Stephen G. Huggard, Special

____________________
with whom

Assistant

Donald K. Stern, United

_______________

United States

States Attorney, was on

Attorn
brief

the United States.

Scott P. Lopez,
_______________

by appointment

of the

court, with

whom

Philip Segal and Burns & Levinson LLP were on brief for appellee.
____________
____________________

____________________

Te
__

January 20, 1998

____________________

BOUDIN, Circuit Judge.

_____________

John Brennick was

convicted of

various offenses centered

the Treasury income

his

around his failure to

and social security taxes

employees' paychecks.

fixed by the sentencing

41

then departed

sentence

months but

of 13

withheld from

The district court calculated the

range of imprisonment

to 51

pay over to

guidelines at

downward and

months' imprisonment.

imposed a

The government

now

appeals, arguing that the downward departure was error.

I.

John Brennick was the president and sole proprietor of a

number

of head

Pennsylvania,

head trauma

Brennick

injury

treatment centers

Delaware and Maryland.

center in New

being the

general

Jersey as a

partner.

in Massachusetts,

He also

operated one

limited partnership,

Some of

the centers

provided sophisticated

medical treatment;

others appear

to

have been supported living centers for head injured patients.

Taken as a

whole, the companies were a

large and successful

business venture.

Employers

like Brennick are required to withhold income

taxes and social security taxes

from employee paychecks on a

periodic basis and to pay those amounts over to the Treasury.

The

Internal Revenue Service specifies the periods for which

such withholding is required.

to deposit the

days after

Employers are required

by law

withheld taxes into the Treasury within three

the end

of each such

-2-2-

period.

Regular returns,

specifying

the

amounts

withheld and

paid

over,

are also

required on a quarterly basis.

From 1986 to

1992, Brennick followed a

regular pattern

of withholding the taxes from his employees' pay but delaying

payment of

the monies into

period beyond

government were

dates.

the time

between

Brennick

the Treasury

due.

Normally

two and

routinely

for a

his payments

six months

filed

substantial

to the

after the

returns

due

accurately

describing

the

the amounts withheld, and when he ultimately made

delayed

payments to

the

Treasury,

he

also paid

the

interest and penalties prescribed by law for late payments.

During this period,

Brennick frequently withdrew

money

from his businesses by means that avoided bank reports to the

IRS

that are

$10,000

required

from an

when a

individual bank

person

withdraws more

on a

single

Brennick told various of his employees and

than

banking day.

family members to

cash checks drawn on Brennick's various business accounts and

to turn

the money over to

for less than $10,000 each;

him.

The

individual checks were

but the total withdrawn from his

company accounts was often well over $10,000 a day.

There

is

no

claim

that

Brennick

was

forbidden

to

withdraw

the monies from

for most

of them

remaining one he

brought

the companies' accounts;

he was the

sole proprietor,

was the general partner.

in fact,

and for

the

The charge later

against him was that the withdrawals were structured

-3-3-

to

avoid the filing

of currency transaction

reports and to

deflect the

attention of

the tax authorities.

It

is said

that Brennick took much or all the money he withdrew and lost

it in gambling:

he claims to have lost more than

$1 million

second half

businesses

a year.

During the

began to suffer

in

the health

like Brennick.

for

lower

increased.

of 1992, Brennick's

financial problems.

care industry

Changes

were occurring

adversely affecting

providers

Insurance reimbursements came more slowly and

amounts,

while the

costs

In December 1992, one of

of

providing service

the banks that had been

lending money to Brennick failed and Brennick could not

find

another lender to replace it.

At

the

same

time,

the

IRS

began

to

investigate

Brennick's

pattern of

meeting with

agreed to

an

chronically

IRS agent

a payment

on

He

1992,

In

Brennick

commitment to

keep

promised that his businesses

would seek to expedite payments to

taxes.

payments.

October 30,

plan, including

current on future payments.

own pay and

late

the IRS and would cut his

the pay of other executives in order to pay back

Instead,

Brennick removed another $80,000

the businesses in November 1992

cash from

and almost twice that amount

in December.

In

addition, Brennick now began to file false quarterly

withholding tax returns for many

-4-4-

of the companies.

Returns

filed in

stated

the third

that

and fourth quarter

Brennick

had

paid

of 1992

over

to

incorrectly

the

government

virtually all of the withheld taxes; in truth, the

in question had paid

none of the taxes over to the

companies

IRS.

In

two cases Brennick signed the false returns himself; in other

cases they

were signed

by employees,

but Brennick was

the

person responsible for the withholding of the taxes.

In February

1993, Brennick filed for

reorganization of

his businesses under chapter

later

11 of the Bankruptcy

Code, and

the case was transformed into a chapter 7 liquidation.

At the initial

filing, Brennick owed the

million in withheld taxes that

been,

paid over to

Brennick

himself while

should have been, but had not

the government.

took additional

funds out

failing to pay

Treasury over $1.4

During reorganization,

of

the businesses

over the full amount

for

of taxes

withheld during the same period.

In

1995,

grand

superseding indictment,

of

willful failure to

jury

indicted

Brennick was charged

account for, and

specified withholding taxes, 26 U.S.C.

structuring currency

Brennick.

transactions, 31

In

with 22 counts

pay over quarterly,

7202; nine counts of

U.S.C.

5313, 5322

and 5324; and one count

and impede

the

additional single

IRS, 26

of corruptly endeavoring to obstruct

U.S.C.

charge of

7212(a).

There was

bankruptcy fraud,

an

18 U.S.C.

152, but the jury later deadlocked on that issue.

-5-5-

In

December

1995,

Brennick

went

on

trial.

The

government,

already

in addition to

described,

called

offering evidence of

several

of

the events

Brennick's

former

employees who testified that Brennick had known the deadlines

for

paying

over

the withheld

taxes

but

had deliberately

chosen to ignore them even though his employees had sought to

get him

to

bankruptcy

pay over

the

taxes on

timely basis.

The

fraud count aside, the jury convicted Brennick on

all remaining counts.

The

district

court

held

two-day

proceeding

determine Brennick's sentence and after sentencing, issued

memorandum and order explaining the court's analysis.

States v.
______

briefly

Brennick, 949 F. Supp. 32

_________

setting out

the

background

(D. Mass 1996).

facts, the

to

United
______

After

memorandum

calculated the normal

to the 1992

set out

guideline range, referring (as

version of the guidelines.

Then,

we do)

at length, it

the framework for departures and the court's reasons

for departing in this case.

Brennick

was

convicted

statutes--failure to

and

obstructing

the

of violating

pay over

three

withheld taxes,

IRS--but

the

conduct

different

structuring,

was

arguably

related.

In any event, the district court chose to treat the

offenses

as closely

related

counts

-6-6-

to

be

grouped

under

U.S.S.G.

appeal.1

3D1.2,

and its

Where counts are

choice is

The

was

among the group that had the

U.S.S.G.

3D1.3(b).

district court ruled that the highest offense level

generated by

officials

on this

so grouped, the court selects the

offense level for the violation

highest offense level.

not disputed

the

offense

under 26 U.S.C.

of

corruptly

7212(a).

impeding

tax

Although no specific

guideline exists for this offense (unless force is used), see

___

U.S.S.G.,

appendix

guideline

for the

conduct of

1B1.2.

A,

the court

offense most

which the

is

directed

analogous

defendant was

the obstructive conduct

evasion,

violation of

specific

tax

evasion

26

set

the

criminal

U.S.S.G.

that the closest

was the offense

U.S.C.

guideline is

to the

convicted.

Here, the district court concluded

analogy for

to use

of tax

7201, for

which

forth,

U.S.S.G.

2T1.1.

Although Brennick was not charged with tax evasion, this

choice of

analogy is not

challenged by either side,

accept it

as reasonable

for purposes of

this appeal.

government's obstruction

charge embraced

all of

and we

The

Brennick's

behavior

acts of

(deliberate underpayments,

falsity or

structuring, and

concealment) and

that conduct

other

includes

____________________

1The government says for the record that the structuring

counts
counts,
U.S.S.G.

should

have

been grouped

which would have

3D1.4.

separately

resulted in a

But this

caveat was

district court and is not pursued here.

-7-7-

from

the tax

one-level increase.
not raised

in the

withholding

revenues

from

the

government

combined

with

elements of conscious wrongdoing and personal gain.

The base offense level for the tax evasion guideline

driven by

the tax loss

this case

the undisputed

"more

than

U.S.S.G.

levels

inflicted on the government,

level of

$1,500,000"--corresponds

2T1.1(a), 2T4.1(M).

on the ground

means" to impede

U.S.S.G.

Given

to

loss--

offense level

18.

used "sophisticated

the offense,

see U.S.S.G.
___

more levels for obstruction

untruthful testimony

and in

The district court added two

that Brennick had

discovery of

2T1.1(b)(2), and two

because of

the government's

is

by Brennick

of justice

at trial,

see
___

3C1.1.

total offense

level

of

22 (and

criminal

history

term

category I), the guideline range

of imprisonment of 41

to 51 months.

the district court departed downward

the

prescribed range

category

I is

12 to

for a

18

for Brennick was a

From this range,

to level 13, for

defendant

in criminal

months' imprisonment.

and the

statutory special

remained personally liable

he had caused, 26 U.S.C.

detail but

Brennick's intent

court

of $6,000

assessment, noting that

to the government for

Brennick

tax losses

6672.

The court's reasons for the departure were set

some

history

The

imposed a sentence of 13 months, as well as a fine

which

reflect two

was not as

forth in

central themes:

first, that

wicked as that of

the typical

-8-8-

tax evader because, despite some conscious wrongdoing, he did

not intend permanently to deprive the government of the funds

he failed to pay over; and second, the ultimate losses to the

government were due

contributing

causes

business's main bank

not merely to Brennick's

as

well,

including

conduct but to

failure

and adverse developments in

of

his

the health

care market.

The

government

sentence.

It

has

argues

misconstruction of the

now

that

appealed

to

the departure

challenge

was

the

based on

guidelines and that even if

a ground

for departure exists in theory (which the government denies),

the

district

departure were

court's

decision

to

unreasonable on the

depart

and

degree

present facts.

of

We take

the issues in that order.

II.

Departures from the

"the

court

finds

that

guideline range

there

exists

mitigating

circumstance

of

adequately

taken

consideration

into

Commission in formulating the

a kind,

are allowed

an

or

to

by

where

aggravating

or

a degree,

not

the

Sentencing

guidelines that should

result

in a

sentence different from

that described."

18

U.S.C.

3553(b).

Sometimes, the guidelines identify a "circumstance"

that

is

permissible or

forbidden

basis

sometimes further indicating that departure is

discouraged.

-9-9-

for departure,

encouraged or

Absent such explicit guidance, the Commission itself has

told courts that they should

out

a "heartland"

embodying

the

U.S.S.G. ch.

finds

representing

conduct

1, pt. A

that

differs

applies

from the

departure

"atypical"

is

"a

set

each

but

norm,

and aggravates or

typical

4(b).

cases

describes."

"When

a court

to which a particular guideline

where

the court

warranted."

of

guideline

intro. comment

an atypical case, one

linguistically

treat each guideline as carving

Id.
___

conduct

may

If

significantly

consider whether

the

characteristic is

mitigates the typical conduct,

it may provide a basis for departure.

Where a district

court does depart, an

aggrieved party

may appeal from both the decision to depart and the extent of

the

departure.

18

U.S.C.

3742.

The

standard of review

varies with the nature of the issue involved, deference being

limited or absent on abstract issues of law but more generous

as to questions of

law application and factfinding.

States v. Black, 78 F.3d

______
_____

S. Ct. 254

(1996).

United
______

1, 8 (1st Cir.), cert. denied, 117

_____________

The present case presents

issues of all

three kinds.

We start

Brennick,

government

with the

although he

district court's

had deliberately

the withheld wages

determination that

failed

to pay

and social security

the

taxes at

the time they were due, genuinely intended to pay them in due

course.

In the

district court's view,

Brennick's main aim

-10-10-

was to

use the

government

we think

IRS as

a bank.

It is

not clear

that the

directly challenges this finding, but in any case

the finding is not clearly

ordinarily

sentencing.

applied

to

erroneous, the standard

determinations

United States v.
_____________

of

fact

made

at

Pineda, 981 F.2d 569, 572 (1st

______

Cir. 1992).

Brennick's

pattern

engulfed him was

for periods of

before

financial

to retain the use of the

four to six months

funds, adding penalties

difficulties

funds in question

and then to pay

and interests.

The

over the

likelihood that

he would be able to make this repayment obviously declined as

troubles loomed in

for

resources to

repay can be

late 1992, but

he continued to

continue payment.

ascribed to all of

more difficult issue.

Whether

scramble

an intent

the delays in payment

to

is a

See part III below.

___

In the district judge's sentencing memorandum and order,

she relied heavily upon this

present case out

intention to repay to carve the

of the "heartland"

of typical tax

evasion

cases.

The

attempt

to

government says

bolster

this

departure

rationale was

earlier

a belated

premised

on

different ground, namely, that there were multiple causes for

the

loss

to

the

government.

sentencing

transcript

Brennick's

intent

was

suggests

always an

court's reasoning.

-11-11-

Our

own

reading

of

the

that

the

benign

view

of

element

in

the district

The nature of the scienter element in a tax evasion case

is complicated to summarize given that different requirements

may apply

is

owed

on different issues.

Still,

the taxpayer usually

attempting to deprive the government permanently of taxes

to

government

attempted

it.

Typically,

the

instruction

requires

to prove that the defendant "willfully evaded, or

to evade,

income

defrauding the government of

__________

taxes

with

taxes owed."

the

intention

Leonard B.

et al., Modern Federal Jury Instructions: Criminal

__________________________________ ________

Instruction

the

59-8 (1992) (emphasis added).

of

Sand,

59.01,

See, e.g., United

___ ____ ______

States v. Aitken, 755 F.2d 188 (1st Cir. 1985).

______
______

Admittedly, it would do a

defendant no good to say that

he deliberately understated his income but sincerely intended

to pay the money back to the government

But

in five years' time.

neither is it easy to imagine a fraud conviction where a

defendant files an accurate return, intends shortly to pay in

full, but

April

remits the funds

15 deadline.

failure to

that

pay over

"[t]he

prosecuted."

In

offense

U.S.S.G.

all events,

with interest shortly

Indeed,

the

guideline

payroll taxes notes

is

felony

that

covering

in the

is

after the
_____

the

commentary

infrequently

2T1.6, commentary.

we are

inclined

on the

basis of

the

information we have and our common sense to think that such a

temporary

delay in payment--where

the defendant expected to

pay--is not a "typical" or

"heartland" case of tax

evasion.

-12-12-

Thus,

even

if

the

evasion

statute

"linguistically" be extended to embrace

cases, the intent

the

to delay payment

case out of the

heartland.

and

guideline

such temporary delay

only briefly could

And,

might

take

as already noted, the

district court made such a finding in this

at

least as

to much

of

the losses

case, sustainable

driving the

guideline

sentence.

The

analysis.

district court had

another theme in

It said that the $1.5 million loss suffered by the

government overstated the

seriousness of Brennick's offense,

partly because the

losses were due to

of which

Brennick's

(failure

were not

of

his

reimbursement).

part of

its departure

bank,

multiple causes, some

fault or

the

within his

changes

in

control

health

care

The government says that these concepts are

the fraud

guidelines and applying

them to

the tax

crime guidelines is an error of law.

The

fraud

guidelines,

like

the

tax guidelines,

set

offense

levels

primarily based

guidelines alone

departure

refer in

where computed

seriousness of

alone at one

upon loss.

comment to the

losses

the offense;

under-

But

possibility of

or

likewise, the

overstate

time referred to multiple causes

retain that

Compare U.S.S.G.
_______

2F1.1,

concept in

-13-13-

the

as a possible

one of the

application note

fraud guidelines

example of an overstatement and while that language

deleted, they

the fraud

has been

examples.

11 (1990)

with
____

application note 10 (1991).

See generally
_____________

United States v.
_____________

Rostoff, 53 F.3d 398, 406 (1st Cir. 1995).

_______

We agree with the government that provisions in one

of

guidelines

cannot

normally

separate set of guidelines.

be

transferred

See United States

___ _____________

set

to another

v. Smallwood,
_________

920 F.2d 1231, 1238 (5th Cir. 1991); United States v. Anders,
_____________
______

899 F.2d 570, 580 (6th

Cir. 1990).

offense or set of offenses

unit,

containing

their

The guidelines

for each

tend to function as an integrated

own

tradeoffs and

specifications.

Thus, without laying

any importation

down an iron rule, we

of language from

view skeptically

another offense guideline,

absent an explicit cross-reference.

Yet this

does not

take the government

notion in the fraud guideline

or overstate the

offense is little

than another

way

table may be

warranted for good cause.

______________

that departures

language as generously

for

the

departure provision

the

case falls

3553(b); U.S.S.G.

fact

remains

from the

more

loss

Even if we treat the

fraud guideline's

such causes,

The

that the loss table may under-

seriousness of the

of saying

very far.

that

inviting a

the

search

all-purpose

remains available for tax cases whenever

outside

5K2.0.

the

heartland.

See
___

18 U.S.C.

The fraud guidelines' multiple-cause language

complicated

matter.

guidelines may need

The government

says

that

such flexibility because of

is a more

the fraud

the diverse

-14-14-

situations to which

"loss" for tax

they must apply.

purposes is based on

By

contrast, it says,

calculations, set forth

in the guidelines,

that (in words of the

the amount due and

owing at the time of the offense."

tax evader

merely

repays what was

deserves

few

brief) "focus upon

stolen, says the

levels

off

If a

government, he

for

acceptance

of

responsibility.

Tax

loss seems

to be

a somewhat more

than the government implies,2 but we

is

beside

the

point.

We are

protean concept

think that the argument

here

concerned

not

with

computing the loss--the parties have agreed that it should be

treated as "more than 1.5 million"--but rather with whether a

departure

evader

is proper.

who stole

change of heart

the

And

we are

dealing not

government's money

and

with

a tax

later had

but with someone who (accepting the district

court's finding) never intended to steal the money at all (or

at least most of it).

Further, regardless

of the fraud

guideline, the

facts

mentioned by the district court in its causation analysis are

obviously

distinguish

relevant

even

if

Brennick from

essential to show

the

analysis

the ordinary

that he did

tax

intend to

is

not.

evader, it

pay over what

To

is

was

____________________

2Tax

loss

different

tax

is

defined

offenses,

somewhat
compare
_______

2T1.2(a), 2T1.3(a), and 2T1.6(a), and

has changed over time.

-15-15-

differently
U.S.S.G.

for

the

2T1.1(a),

the tax table at 2T4.1

owed and was merely deferring payment.

hard to

sustain unless some

This premise would be

other cause had

contributed to

his later failure to pay over the funds.

This said, we think that

treat

"multiple causation"

departure.

with

are

it merely invites confusion to

as an

independent

And we think that to do so

basis for

would be inconsistent

the normal presumption that provisions in one guideline

not

to be

read

into

the

guideline for

different

offense--absent

an

explicit cross

reason to believe that the

that

reference or

Commission so intended.

some other

We doubt

this emendation would alter the district court's desire

to depart, but as a remand is required for other reasons,

is free to decide the point for itself.

it

-16-16-

III.

While a departure

case, we do not think

the

amount of the

Our reasons

based on

could be justified in

that either the decision to depart

departure has been

are not the

effort to explain the degree

the departure

or that there has

of departure.

weighing against

or

adequately explained.

usual ones--that

an impermissible ground

that factors

theory in this

is

been no

Rather, we think

any departure,

and certainly

one of this degree, received inadequate attention.

In this case the guideline

51 months; and the 13-month

range for Brennick was 41 to

sentence imposed was less than a

third of the minimum and just over a quarter of the

A 13-month sentence would

be the midpoint in the range for a

first time offender who evaded

more

in taxes

but had

maximum.

or sought to evade $40,000 or

no other

adjustment.

Brennick, of

course, caused the government a tax loss of over $1,500,000.

It would

Brennick

expecting

meantime

had merely

to pay

for

collapsed.

probably

be easy enough

withheld

the

money

business

Absent

not even

to understand the

to

payment,

shortly but

purposes

loss

be

a large

the

which

using

then

government,

prosecution in

such

certainly the intent would be less culpable than

tax evasion.

sentence if

reasonably

it in

the

unexpectedly

there

a case;

would

and

in ordinary

But Brennick's actions and intentions were more

serious than this abstraction allows.

-17-17-

First,

repayment,

Brennick

but

possibility, of

To

the eve

appears

some

sense

and

to

very substantial sums for

intended

even

the

lessened over time.

apparently beyond,

deferred payment

bona fide intention to

have

and perhaps

such a belief must have

more findings, it would be

of a

in

reasonableness,

of bankruptcy

to have

withdrawing

the

may

Brennick

the government

his own use.

while

Without

hard to give Brennick the benefit

repay the entire loss,

______

even if

much of it may be encompassed.

Second,

even

apart

from

an

intention

to

repay,

Brennick's good faith is marred by dishonesty in at least two

respects, (even apart from his falsehoods at trial which were

the subject of a

separate adjustment).

On

a number of

the

later returns, Brennick falsely stated or had others misstate

that

the amounts due to the government had been paid when he

knew that

they had

not.

And

his elaborate

structuring of

withdrawals was effectively an effort to mislead and conceal,

as

perhaps

also

was

his

use

of

multiple

employer

identification numbers.

Third, Brennick committed the

crime of structuring

and

the government points out that the structure counts alone, if

no

other offense

produced an

had

been

committed,

adjusted offense level

could

easily

of 17,3 and

have

a guideline

____________________

3That level might

have been anywhere between 15 and 21.

Under the 1992 guidelines, the structuring counts generated a

base offense level

of 13. U.S.S.G.

2S1.3(a)(1),

and would

-18-18-

sentence of 24 to 30 months.

The minimum is almost twice the

_______

amount

of Brennick's actual

government

has

not

impermissible as a

argued

sentence after departure.

that

this

makes

matter of law, but it

The

departure

certainly bears on

the reasonableness and degree of departure.

We

appreciate that where a ground for departure exists,

the district

court's discretion

both whether and

is at

how far to depart.

its zenith

deciding

United States v. Diaz______________

_____

Villafane, 874 F.2d 43, 49-50 (1st cir. 1989).

_________

But

the quid
____

pro quo for departures is reviewability, including review for

_______

abuse

of discretion,

18 U.S.C.

review is hedged by deference,

3742(b)(3);

and even

if

Koon v. United States, 116 S.

____
_____________

Ct. 2035, 2046 (1996), it has to mean something.

In this

case,

we fail

to see

how a

departure to

13

months can be justified as reasonable on this record in light

______________

of

the three considerations

appear to

us relevant.

set forth

above, all

We have put to

of which

one side Brennick's

gambling, the significance of which is a matter of reasonable

dispute,

and the

government's claim

that

he deprived

his

employees of health care, which was neither a charged offense

nor clearly relevant conduct.

____________________

have been adjusted upward two

involved.

U.S.S.G.

2S1.3(b)(2).

adjustment for obstruction

have applied, generating
of four levels
that

levels for the amount of money

of justice would
a level of 17.

would have resulted

"the defendant

Brennick's

knew or

criminally derived property."

presumably also

A further increase

if the court

believed that
U.S.S.G.

two-level

determined

the funds

2S1.3(b)(1).

were

-19-19-

Possibly, even

after these

weighed in

full, there

departure,

but we

essential.

is still

think that

Indeed, while the

Brennick's

false

discussion

understates

factors are

filings,

the

them;4

warrant for

some

considered and

a substantial

further explanation

district court takes

government

and

the

says

district

is

note of

that

the

court's

decision

does

not

Brennick's good

squarely

faith on the

address

our

concerns

later losses or the

about

import of

the structuring guideline.

The sentence

court conducted

was

not imposed

a lengthy

sentencing and

addressing itself primarily to

which

we think

there

is

circumstances are

helpful

unusual.

the

district

wrote at

length,

the government's objections--

are overstated.

little

casually:

The

area is

precedent;

If it takes

complicated;

and

Brennick's

one more

round to

fine-tune the sentence, this is a price worth paying.

On

remand, the

whether

conclusion

its

district

inclination

that the

to

court

depart

fraud guideline

is

is

free

to

affected

should

be put

consider

by

our

to one

side.

Assuming

not,

district court will

outlined.

While

we expect

that

in resentencing

address the considerations that

expressing

doubt that

the

we have

sentence of

13

____________________

4The district
Brennick
in full.
returns

court

mentioned

two

returns

filed

by

falsely claiming that the amount indicated was paid

The
were

government notes
actually

signed

that
by

although

Brennick, an

two

additional

fourteen false returns were signed by his employees.

-20-20-

false

months

What

is justified, we impose no mechanical downward limit.

procedure

to follow

on

remand

is entirely

for

the

district court to decide.

The sentence imposed by the district court is vacated in

_______

its entirety and

the case is remanded to

________

the district court

for further proceedings consistent with this opinion.

It is so ordered.
_________________

-21-21-