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December 7, 2005

Interesting sentencing work in tax terrorism case

Yesterday, the Tenth Circuit issued an interesting opinion in an interesting "tax terrorism" case, US v. Dowell, No. 03-1341 (10th Cir. Dec. 6, 2005) (available here).  The defendant in Dowell participated in a "plan to set fire to the Colorado Springs office of the Internal Revenue Service ... along with several members of his 'constitutional law group.'"  The facts alone make Dowell a fascinating read: the defendant apparently served as a lookout while other members of this "constitutional law group" broke into IRS offices, torched all the files, and "painted the letters AAR several places in the building, [which] stood for Army of the American Republic."  (Adding to the intrigue, one jury ultimately acquitted one of the "tax terrorists" who broke into the IRS offices, while another jury convicted the apparent ring-leader and he was sentenced to 400 months in prison.)

I call the defendants tax terrorists because the main sentencing issue in Dowell concerns not only Blakely and Booker, but also the application of the federal guidelines' terrorism enhancement in § 3A1.4.  Though sentenced before Blakely, Dowell raised claims that were "sufficient to preserve his Booker arguments."  Nevertheless, despite the Government's concession "that the district court's application of the terrorism enhancement violated the Sixth Amendment and warrants resentencing," the 10th Circuit affirms the application of the terrorism enhancement and the defendant's 30-year sentence based on its "own independent review of the record."

The 10th Circuit's "independent review" leads to an interesting interpretation of the particulars of guidelines' terrorism enhancement in § 3A1.4 (which in turn enable the Dowell court to conclude that the defendant was not sentenced unconstitutionally).  In reviewing the court's application of § 3A1.4, I could not help but think about whether that provision would have been applicable in a more renown case of tax opposition that took place one December night 232 years ago.

December 7, 2005 at 11:52 AM | Permalink

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» Enhancing a Tax Protester's Sentence for Terrorism from White Collar Crime Prof Blog
Doug Berman on the venerable Sentencing Law Policy blog has an interesting post (here) about the application of the terrorism enhancement to a tax protester case (U.S. v. Dowell here). The defendants were members of a constitutional law group -- [Read More]

Tracked on Dec 8, 2005 5:34:30 AM

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