Case 1:11-cr-00067-RC-KFG Document 169

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION UNITED STATES OF AMERICA, v. CALVIN WALKER

Crim. Action No. 1:11-CR-67 JUDGE RON CLARK

SENTENCING MEMORANDUM The probation officer in this case submitted a carefully prepared Presentence Investigation Report. See Fed. R. Crim. P. 32(c)(1). As required by Rule 32, the Report in this case sets out certain categories of information to aid the court in determining the sentence, such as the offense level, the criminal history category, calculation of the guideline range, factors relevant to determining an appropriate sentence within the guideline range, and possible grounds for departure. The Presentence Investigation Report is intended to aid the court. The probation officer attempts to provide the court with a neutral evaluation of the factors that affect the courts determination of a sentence. Once the Report is filed, either party may object to material information, sentencing guideline ranges, and policy statements contained in or omitted from the report. Fed. R. Crim. P. 32(f)(1). Objections to the exact wording of paragraphs in the Report that do not affect the criminal history category, the offense level, grounds for departure, policy statements, or determination of the sentence are generally not material, and a ruling is unnecessary. Mr. Walker filed eight objections to the Presentence Investigation Report, several of which were later agreed to by the parties. For the reasons discussed on the record at the December 12, 2012 sentencing hearing, the court finds that a determination of those objections which remain outstanding is unnecessary because they do not affect the sentencing. The court is not inclined to require a 1

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probation officer, already burdened with many other reports and responsibilities, to rewrite a report because the parties were not happy with the semantic nuances of the phrasing. Therefore, it is ordered that the court will accept the November 20, 2012 revision of the Report as written. The court asks the probation officer to attach a copy of the parties letter agreement as to the phrasing of certain paragraphs, which was discussed at the December 12, 2012 sentencing, to the November 20, 2012 revised Report. The Government filed a sentencing memorandum requesting that the court impose a term of five years probation, and impose certain conditions: 1. That Mr. Walker refrain from performing services for, or in connection with, public contracts from any public entity which receives taxpayer funds as its major source or revenue, or, in the alternative, from performing services for, or in connection with, any public contracts in any manner from the Beaumont Independent School District and the City of Port Arthur; That Mr. Walker perform 400 hours of community service; and That Mr. Walker file all applicable federal and state tax returns, pay any tax due, and retain a CPA to prepare and file any returns while under probation or supervision.

2. 3.

Doc. # 167 at 1-2. With respect to condition (1), this was not suggested in the Presentence Investigation Report and Mr. Walker objected to this condition. At the December 12, 2012 sentencing hearing, the court analyzed on the record the applicable provisions of the Sentencing Guidelines and the cases discussing the barring of a defendant from certain types of employment, including the cases cited by the Government. The court relies on that analysis, and additionally notes the following . The Comprehensive Crime Control Act of 1984 authorizes the court to order as a condition of probation that a defendant refrain . . . from engaging in a specified occupation, business, or

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profession bearing a reasonably direct relationship to the conduct constituting the offense . . . . 18 U.S.C. 3563(b)(5) (emphasis added). Similarly, the Sentencing Guidelines provide that the court may impose a condition of probation or supervised release prohibiting outright or limiting the terms on which a defendant may engage in a specified occupation, business, or profession only if it determines that a reasonably direct relationship existed between the defendants occupation, business, or profession and the conduct relevant to the offense of conviction. U.S. Sentencing Guidelines Manual 5F1.5(a)(1) (2002) (emphasis added). In this case, the Government argues that the conduct underlying the original indictmenti.e., alleged fraud on the Beaumont Independent School District (BISD)justifies an order forbidding Mr. Walker from performing services for, or in connection with, any public contracts from BISD and the City of Port Arthur. But in the plea agreement, the Government agreed to dismiss all 37 of the fraud counts on which Mr. Walker was indicted. The probation officer included some information on the allegations underlying the original Indictment, but that was under a heading of Offense Behavior Not Part of Relevant Conduct. The Government did not object to that categorization. Mr. Walker instead pled to a one count information that he willfully failed to pay income tax. This is the only count on which Mr. Walker was convicted. A willful failure to pay taxes is not directly related to his work as an electrical contractor. Barring Mr. Walker from working for public entities makes it no more nor less likely that he will pay his taxes promptly and in full.

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The court does not find a reasonably direct relationship exists between Mr. Walkers occupation as an electrical contractor or the business he conducts with BISD and any failure to pay taxes. See United States v. Mills, 959 F.2d 516, 519-20 (5th Cir. 1992). The Governments request to bar him from such work is denied. With respect to conditions (2) and (3), Mr. Walker did not object to these conditions and both were suggested in the Presentence Investigation Report. As stated on the record, the court finds conditions (2) and (3) reasonable and appropriate, in light of the factors set out in 18 U.S.C. 3553(a). As stated at the hearing, Mr. Walker will be required to retain a Certified Public Accountant and provide this CPA with the necessary records to implement for Mr. Walker and his business enterprises the proper procedures necessary, prudent, and reasonable for keeping track of invoicing, accounts receivable, and accounts payable, as well as those prudent and necessary for the proper preparation and filing of all state and federal tax reports and returns. The probation officer shall have access to these records to monitor compliance with this condition.
So ORDERED and SIGNED this 12 day of December, 2012.

___________________________________ Ron Clark, United States District Judge