Submitted: May 16, 2016
from United States District Court for the District of
Minnesota - St. Paul
RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
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
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
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
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.
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."
sentencing hearing, the district court overruled Musa's
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.
district court then imposed the four-level enhancement.
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). ...