United States v. Stanley Frank Barski

Stanley Barski appeals his sentence for tax evasion on the ground that Sentencing Guideline 2T1.3(a)(1) violates due process because it creates an irrebuttable presumption that tax loss is 28 percent of unreported taxable income. In this ease, as required by that provision, the district court calculated the tax loss by multiplying the taxable income understated — $210,894.45— by 28 percent. It is uncontested that Bar-ski’s tax rate was lower than 28 percent and that the amount of taxes he owed was at most $35,884.25.

Barski’s argument implicitly assumes that the legally operative fact is the actual amount of tax loss, and that this fact is determined by a conclusive presumption that tax loss is 28 percent of unreported income. We cannot indulge this assumption. In United States v. Smith, 905 F.2d 1296, 1300 (9th Cir.1990), we rejected a due process challenge to a Guideline provision that required courts to “treat the loss for a financial institution or post office as at least $5,000.” Id. In rejecting an argument that the Guideline at issue there created an irrebuttable presumption in violation of due process, we “disagree[d] with the very premise that [the Guideline…