United States Court of Appeals For the Eighth Circuit ___________________________ No. 16-4420 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Mark Arlin Hammerschmidt lllllllllllllllllllll Defendant - Appellant ___________________________ No. 16-4422 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Ornella Angelina Hammerschmidt lllllllllllllllllllll Defendant - Appellant ____________ Appeals from United States District Court for the District of Minnesota - St. Paul ____________ Submitted: October 20, 2017 Filed: February 2, 2018 ____________ Before WOLLMAN and SHEPHERD, and GOLDBERG,1 Circuit Judges. ____________ WOLLMAN, Circuit Judge. Mark Arlin Hammerschmidt (Mark) pleaded guilty to two counts of conspiracy to defraud the United States in violation of 18 U.S.C. § 286 and was sentenced to 135 months’ imprisonment. Ornella Angelina Hammerschmidt (Ornella) pleaded guilty to one count of making false claims for refunds in violation of 18 U.S.C. § 287 and was sentenced to 48 months’ imprisonment. The Hammerschmidts appeal from their sentences. Mark argues that the district court erred in calculating his offense level and his criminal history points. Ornella argues that the district court erred in calculating her offense level and in imposing a sentence above the range set forth in the United States Sentencing Guidelines Manual (Guidelines or U.S.S.G.). Because the district court did not make the findings required to increase Mark’s offense level for being a manager or supervisor and because it should not have assessed criminal history points for a 2008 purged disposition of civil contempt, we vacate Mark’s sentence and remand for resentencing. We affirm Ornella’s sentence. I. Background This case involves two schemes to obtain fraudulent tax refunds from the United States Department of the Treasury through the Internal Revenue Service (IRS). The first scheme involved the Hammerschmidts’ providing accounting and tax preparation services through their businesses, American Group and Liberty Tax. They also offered immigration services, with Ornella Hammerschmidt falsely claiming that she was an attorney. 1 The Honorable Richard W. Goldberg, Judge, United States Court of International Trade, sitting by designation. -2- From January 2011 through February 2013, the Hammerschmidts completed income tax returns for taxpayers in Florida and Minnesota, many of whom were immigrants who did not speak English. The Hammerschmidts reported false information on the returns to qualify the taxpayers for additional refunds. The false information included incorrect filing statuses, false household-help income, fictitious businesses and business losses, and fraudulent tax credits. The taxpayers were not aware that the Hammerschmidts were making false statements on their returns. Ornella sometimes signed the returns on behalf of the taxpayers, and American Group did not always provide clients with copies of their returns. The Hammerschmidts did not identify themselves on the returns as paid tax preparers. Most of the refunds were deposited directly into a bank account managed by the Hammerschmidts, who thereafter deducted fees and remitted partial refunds to the taxpayers. All told, the first scheme involved twenty-two federal tax returns that claimed more than $95,000 in fraudulent refunds, on which the IRS paid out more than $45,000. The first scheme also involved ...
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