US v. Duane Hamelink

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:10-cr-00042-RJC-1. Copies to all parties and the district court/agency. [998871079]. [11-4893]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4893

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DUANE HAMELINK,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Robert J. Conrad,
Jr., Chief District Judge. (3:10-cr-00042-RJC-1)

Submitted:

May 24, 2012

Decided:

June 8, 2012

Before WILKINSON, WYNN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Dianne Jones McVay, JONES MCVAY LAW FIRM, PLLC, Charlotte, North
Carolina, for Appellant.
Jenny Grus Sugar, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Duane Hamelink pled guilty, pursuant to a written plea
agreement,
States,

to

in

one

count

violation

of

of

conspiracy

18

U.S.C.

to

defraud

§ 371

sentenced to 27 months’ imprisonment.

the

(2006),

United

and

was

On appeal, Hamelink’s

attorney has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), in which she asserts that she has found no
meritorious issues, but questions the constitutionality of the
sentencing enhancement Hamelink received for the amount of tax
loss.

Although

advised

of

his

right

to

supplemental brief, Hamelink has not done so.

file

a

pro

se

For the reasons

that follow, we affirm.
Hamelink, and his wife Eileen, owned and operated a
residential carpentry business in Charlotte, North Carolina.

At

his guilty plea hearing, Hamelink admitted that, despite earning
substantial

income

from

income tax returns.

his

business,

he

failed

to

file

any

Hamelink also admitted that he had taken a

variety of steps to conceal his income and assets from the IRS,
including the use of bogus trusts, nominee entities, and related
domestic

and

foreign

Hamelink

stipulated

bank
that

accounts.
the

In

plea

agreement,

of

amount

the
tax

loss

known,

or

reasonably foreseeable, to him was more than $1 million but less
than

$2.5

22.

See

million,
U.S.

and

Sentencing

that

the

base

Guidelines
2

offense

Manual

level

(USSG)

§

was
2T4.1

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(2010).

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After a two-level enhancement for use of sophisticated

means,

USSG

acceptance

§ 2T1.1(b)(2),

of

responsibility,

offense level was 21.
Hamelink’s

a

three-level

USSG

§

3E1.1,

reduction

Hamelink’s

for
total

With a criminal history category of I,

advisory

imprisonment.

and

Guidelines

range

was

37-46

months’

However, the district court granted a three-level

downward departure, resulting in a total offense level of 18,
with

a

corresponding

imprisonment.
range.

guidelines

range

of

27-33

months

The court imposed a sentence at the bottom of the

Hamelink timely appealed.
Counsel

questions

whether

USSG

§ 2T4.1

is

unconstitutional because it allows inclusion of penalties and
interest

assessed

by

the

IRS

in

calculating

attributed for sentencing purposes.
that:

amount

of

loss

Counsel concedes, however,

(1) Hamelink stipulated to the amount of loss in the plea

agreement; and (2) there is no case law supporting her argument.
This

court
“under

reasonableness
standard.
In

a

this

correctly

sentence.

Hamelink’s

deferential

sentence

for

abuse-of-discretion”

Gall v. United States, 552 U.S. 38, 41, 51 (2007).

conducting

court

reviews

review,

we

must

calculated

Id. at 49, 51.

application

of

the

conclusions

de

novo

the

that

the

defendant’s

district

Guidelines

When reviewing the district court’s

Guidelines,
and

ensure

factual
3

this

court

findings,

reviews
such

as

legal
loss

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calculations,

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for

clear

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United

error.

States

v.

Sosa-

Carabantes, 561 F.3d 256, 259 (4th Cir. 2009); see also United
States

v.

Allen,

491

F.3d

178,

193

(4th

Cir.

2007)

(“In

reviewing [a] loss calculation, we review de novo the district
court’s

interpretation

of

what

constitutes

‘loss,’

while

accepting the calculation of loss absent clear error.”).
Government

need

only

establish

preponderance of the evidence.
277, 282 (4th Cir. 2010).

the

tax

loss

amount

The
by

a

United States v. Mehta, 594 F.3d
Here, Hamelink stipulated to the

amount of tax loss and is therefore bound by that admission.

In

any event, inclusion of penalties and interest in calculating
tax loss was not erroneous.
“Tax loss,” within the meaning of USSG § 2T2.1 is the
amount of taxes that the taxpayer “failed to pay or attempted
not to pay.” USSG § 2T2.1(a).

Section 2T4.1(c) provides that:

“‘tax loss’ does not include penalties and interest except in
cases

of

7203.”
was

the

willful

evasion

under

either

26

U.S.C.

§§

7201

or

Hamelink clearly willfully evaded income taxes, as that
primary

goal

of

the

conspiracy.

Accordingly,

amounts were properly counted in amount of tax loss.

these

Moreover,

it is well established that the additions to tax for penalties
and interest are civil, not criminal, in nature, and therefore
do not implicate double jeopardy.
303 U.S. 391 (1938).
4

See Helvering v. Mitchell,

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In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Hamelink’s conviction and sentence.

This

court requires that counsel inform Hamelink, in writing, of the
right to petition the Supreme Court of the United States for
further review.

If Hamelink requests that a petition be filed,

but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation.

Counsel’s motion must state that a copy thereof

was served on Hamelink.
We dispense with oral argument because the facts and
legal
before

contentions
the

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.

AFFIRMED

5