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United States v. Musa

United States Court of Appeals, Eighth Circuit

July 28, 2016

United States of America Plaintiff- Appellee
v.
Daniel Nok Musa Defendant-Appellant

          Submitted: May 16, 2016

         Appeal from United States District Court for the District of Minnesota - St. Paul

          Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.

          KELLY, Circuit Judge.

         Daniel Nok Musa pleaded guilty, without a written plea agreement, to 14 counts of failing to pay to the Internal Revenue Service (I.R.S.) the full amount of his employees' tax withholdings, in violation of 26 U.S.C. § 7202. The district court sentenced Musa to 51 months' imprisonment on all 14 counts, to be served concurrently. Musa appeals, challenging the court's application of a four-level leadership enhancement under USSG § 3B1.1(a). Because we find that the district court did not make the required findings for this enhancement, we remand to the district court.

         I.

         Musa was the owner and president of a home health care service. Beginning in the first quarter of 2006 and continuing through September 2009, Musa failed to forward all of the federal income taxes and FICA taxes withheld from his employees' paychecks to the I.R.S. Instead, he spent the money. As the I.R.S. attempted to collect the unpaid taxes, Musa changed the name of his home health care service and placed various properties and businesses in the names of his wife and three children.

         In calculating Musa's advisory sentencing guidelines, the probation office recommended Musa be given a four-level enhancement for his role in the offense. See USSG § 3B1.1. The probation officer recommended the adjustment because:

Musa controlled and exercised complete decision making authority over the six businesses he created over an extended (11 year) period of time. His conduct involved a degree of authority as he moved from one business to another in order to evade taxes. Further, investigative materials indicate that Musa created false documents to make it appear that at least one business, LLPCA[, ] had been run by his daughter.

         Musa objected that this was a one-person offense and that being in control of various entities did not elevate his role into that of a leader or organizer. The probation office responded that the four-level role enhancement was warranted because the offense involved criminal activity that was "otherwise extensive, " "Musa controlled and exercised complete decision making authority over the six businesses he created" and his "conduct involved a degree of authority as he moved from one business to another in order to evade taxes."

         At the sentencing hearing, the district court overruled Musa's objection, stating:

I find that regardless of whether there were others involved in this criminal activity, there is the 'or was otherwise extensive' provision, and I think this was clearly extensive, this situation. Mr. Musa had authority over six businesses [over] an 11-year extended period of time. He certainly had authority because he moved from one business to another in order to evade taxes, created false documents.

         The district court then imposed the four-level enhancement.

         II.

         On appeal, Musa contends the district court erred in imposing a four-level leadership-role enhancement because the court failed to identify any other participant whose activities Musa directed. We review a district court's factual findings regarding whether a leadership enhancement is warranted for clear error and its legal conclusions de novo. United States v. Adetiloye, 716 F.3d 1030, 1037 (8th Cir. 2013). ...


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