Taxpayer was sentenced to 10
months for pleading guilty to the misdemeanor count of willful failure to file
a tax return in violation of 26 U.S.C. § 7203.
U.S. v. MIKSCH, Cite as 111 AFTR 2d 2013-XXXX, 01/16/2013
UNITED STATES of America, v. Mark Wayne MIKSCH.
Case Information:
Code Sec(s):
Court Name: United
States District Court, E.D. Texas, Beaumont Division,
Docket No.: Crim.
Action No. 1:11-CR-5(3),
Date Decided:
01/16/2013.
Disposition:
HEADNOTE
.
Reference(s):
OPINION
United States District Court, E.D. Texas, Beaumont Division,
OPINION AFFIRMING JUDGMENT OF MAGISTRATE
Judge: RON CLARK, District Judge.
Defendant Mark Wayne Miksch pled guilty before, and was
sentenced by, United States Magistrate Judge Keith F. Giblin on one misdemeanor
count of willful failure to file a tax return in violation of 26 U.S.C. § 7203.
He then filed a Notice of Appeal with the Fifth Circuit, which was subsequently
transferred to this court in accordance with 18 U.S.C. § 3402. A briefing
schedule was entered. Mr. Miksch's counsel then moved for leave to withdraw and
filed a brief pursuant toAnders v. California , 386 U.S. 783, 87 S.Ct. 1396
(1967).
After careful review of the record, the briefing, and
speaking with Mr. Miksch on the record at the January 11, 2013 hearing, the
court has no reason to conclude that Mr. Miksch's sentence was unreasonable
under the facts of this case. The court affirms the judgment sentencing Mr.
Miksch to 10 months.
I. BACKGROUND
Judge Giblin sentenced Mr. Miksch in this misdemeanor case.
A plea agreement was entered into between the Government and Mr. Miksch, which
provided that Mr. Miksch would receive 12 months probation and no jail time.
The plea agreement was rejected by Judge Giblin, and Mr. Miksch was sentenced
to 10 months imprisonment with an original self-surrender date of July 3, 2012.
Doc. # 150. Because Mr. Miksch had been undergoing cancer treatment, that date
has been extended several times and Mr. Miksch has not yet surrendered.
In October 2012, Mr. Miksch's counsel filed anAnders
appellate brief and motion to withdraw as counsel. Docs. # 174, 175. This brief
does not present any issue on appeal; rather, it “invite[s] this Honorable
Court to review the sentence for reasonableness.” Doc. # 174 at 13. Mr. Miksch
was afforded the opportunity to respond to theAnders brief and motion to
withdraw as counsel. Doc. # 176. In response, Mr. Miksch sent a letter to the
court explaining that he was still undergoing cancer treatment. The court
entered an Order directing Mr. Miksch to submit any medical documents
supporting his claim of ongoing treatment to chambers by January 3, 2013. Doc.
# 179. Mr. Miksch did so in a timely manner.
The court held a hearing on January 11, 2013 to address the
issue of Mr. Miksch's ongoing cancer treatment. After careful examination of
the medical documentation provided, the court concluded that while Mr. Miksch
was receiving some follow-up care, there were no surgeries or procedures
currently scheduled that would necessitate postponing or changing his 10 month
sentence. Taken as a whole, the record indicated no reason to conclude that Mr.
Miksch's sentence was unreasonable under the circumstances. The court did
extend Mr. Miksch's self-surrender date from January 26, 2013 to February 21,
2013, and stated that it would allow Mr. Miksch to serve his sentence in a
split or intermittent manner—i.e., 5 months in jail, followed by 1 week of
release to take care of any doctor's appointments, and a return to jail for the
remaining 5 months of his sentence.
II. STANDARD OF REVIEW
Anders “established standards for a court-appointed attorney
who seeks to withdraw from a direct criminal appeal on the ground that the
appeal lacks an issue of arguable merit. After a conscientious examination of
the case, the attorney must request permission to withdraw and submit a brief
referring to anything in the record that might arguably support the appeal.”
United States v. Flores, 632 F.3d 229, 231 (5th Cir.2011). An Anders brief must
contain a detailed checklist and outline, and counsel is required to provide a
copy of the brief to the Defendant. The brief's Certificate of Service should
include a statement that this requirement has been complied with. Id. at 232.
In the instant case, counsel's brief complies withAnders and Flores and a copy
of the brief was mailed to Mr. Miksch on October 22, 2012. Doc. # 174 at 26.
The brief raises only the argument that Mr. Miksch's
sentence was unreasonable. “This Court reviews federal sentences under an
abuse-of-discretion standard ... Our review of sentencing decisions is limited
to determining whether they are reasonable.” United States v. Fraga, ——F.3d ——,
2013 WL 127840 at 4 (5th Cir. Jan. 10, 2013) (internal quotation omitted). “Under
that standard, this court must evaluate whether the ... court procedurally
erred before [it] consider[s] the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.” United States v. Receskey, 699
F.3d 807, 809 (5th Cir.2012) (internal quotation omitted; brackets in
original).
III. DISCUSSION
As noted above, the Anders brief does not present any issue
on appeal but instead “invites” the court to review Mr. Miksch's sentence for
unreasonableness based on: (1) his criminal history category of I; (2) that he
has now met his tax obligations to the IRS; (3) his ongoing cancer treatment;
and (4) the fact that the charges against both of his co-Defendants were
dismissed by the Government.
For the reasons discussed on the record at the January 11
hearing, the court has no reason to conclude that Mr. Miksch's sentence was
unreasonable in this case. The 10 month sentence was within the 1 year
statutory maximum for this misdemeanor. 26 U.S.C. § 7203. As Mr. Miksch's
sentence would be capped at 1 year given this statutory maximum, the sentence
is far below the properly calculated 18–24 month Sentencing Guidelines range.
First, with respect to criminal history, Mr. Miksch is in
category I. However, he received a point for a 2003 drug conviction in state
court and received no points at all for a 1986 Driving While Intoxicated
charge. Mr. Miksch may have limited criminal history, but he does have some.
Even if he had no criminal history at all, a 10 month sentence is not
unreasonable given the seriousness of the charges on which Mr. Miksch was
indicted and the tax offense to which he ultimately pled. That he has now paid
his obligations to the IRS does not negate the fact that he pled guilty to
failing to file his returns.
Second, as discussed at the January 11 hearing, the court
finds the record devoid of any evidence that Mr. Miksch will be undergoing any
surgical procedure in the near future or requiring any follow-up care beyond
routine office visits. Regardless, the court has taken Mr. Miksch's medial
condition into account and split the sentence to allow him time to make
doctor's appointments in five months' time.
Finally, the court notes that “[t]he government has great
discretion in deciding whether, and which offenses, to prosecute ...
substantial deference is accorded decisions requiring the exercise of
prosecutorial discretion....”United States v. Molina , 530 F.3d 326, 332 (5th
Cir.2008) (internal quotation omitted). The court takes no position on whether
the Government should have pursued charges against Mr. Miksch's co-Defendants;
the simple fact is that it chose not to. That choice does not affect the
reasonableness of Mr. Miksch's sentence in this case: disparities among
defendants are taken into account under 18 U.S.C. § 3553(a)(6) only where the
other defendants have “similar records” and“have been found guilty of similar
conduct.” That is not the case here.
IV. CONCLUSION
After careful review of the record and briefing in this
case, and after speaking with Mr. Miksch at the January 11, 2013 hearing, the
court has no reason to conclude that Mr. Miksch's sentence was unreasonable
under the facts of this case. No other non-frivolous issue is presented for
appeal. Accordingly, the motion by Mr. Miksch's counsel to withdraw is also
granted.
Mr. Miksch has been sentenced by the magistrate to a term of
10 months as to Count 1 of the Amended Information. That judgment is affirmed.
To address Mr. Miksch's ongoing follow-up medical treatment needs, the term
shall be intermittent. He shall be confined in the custody of the Bureau of
Prisons for a term of 5 months, then after a 1 week period of release, shall be
confined in the custody of the Bureau of Prisons for an additional 5 months.
Mr. Miksch's self-surrender date is extended to February 21,
2013. Mr. Miksch shall selfsurrender for service of sentence at the institution
designated by the Bureau of Prisons before 2:00 p.m. on February 21, 2013.
IT IS THEREFORE ORDERED that the Motion to Withdraw [Doc. #
175] is GRANTED. Gary Bonneaux is permitted to withdraw as counsel for Mr.
Miksch after providing him with a copy of this Order.
IT IS FURTHER ORDERED that the Clerk is directed to send a
copy of this Order to Mr. Miksch at the following address:
Mark Miksch
21 Tindel
Clear Lake Shores, Texas, 77565
So ORDERED.
homs
www.irstaxattorney.com (212) 588-1113 ab@irstaxattorney.com
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