United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 29, 2006

Decided December 22, 2006

Before

Hon. KENNETH F. RIPPLE, Circuit Judge

Hon. DIANE P. WOOD, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 06-1974

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DENNIS MUSURLIAN,

Defendant-Appellant.

Appeal from the United States District

Court for the Eastern District of

Wisconsin

No. 05-CR-137

J.P. Stadtmueller,

Judge.

O R D E R

Dennis Musurlian pleaded guilty to filing a fraudulent income tax return for

1997 and possessing an unregistered pipe bomb. See 26 §§ U.S.C. 7206(1), 5861(d). 

Counsel now seeks to withdraw under Anders v. California, 386 U.S. 738 (1967),

because she is unable to discern any nonfrivolous basis for appeal. We grant

counsel’s motion to withdraw, and dismiss the appeal.

During a tax investigation, Internal Revenue Service agents executed a

warrant to search for business records at Musurlian’s car repair shop and, to their

surprise, found a pipe bomb. Consequently, Musurlian entered a plea agreement

with the government, in which he admitted that he possessed the pipe bomb and

understated his 1997 taxes by more than $34,000. A probation officer, however,

found that Musurlian also understated his taxes from 1997 to 2001, amounting to

an estimated $244,000 in tax losses. 

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 06-1974 Page 2

1 Counsel’s brief refers to the guidelines in effect in March 1998 as the “1998

version of Guidelines.” But we refer to the 1997 version of the guidelines, effective

from November 1, 1997 to October 31, 1998, which was the operative version at the

time of Musurlian’s tax offense. The penalties, at any rate, are identical under both

the 1997 and 1998 versions. 

During the sentencing hearing, Musurlian objected to using the tax loss

figure from 1997 to 2001 to calculate his offense level, arguing instead that because

he pleaded guilty to tax fraud for 1997, the court should use the figure from that

year alone. The government agreed, noting that it could not prove the estimated

losses from 1998 to 2001. The government and Musurlian also agreed that the

court should use the version of the guidelines in effect in March 1998, the date

Musurlian filed his fraudulent return, to calculate the tax fraud offense level,

because using the current version of the guidelines, which set the tax fraud offense

level two steps higher, raised ex post facto concerns. Compare U.S.S.G. § 2T4.1(E)

(2005) (setting offense level at 14 for tax loss between $30,000 and $80,000), with

U.S.S.G. § 2T4.1(6) (1997) (setting offense level at 12 for tax loss between $23,500

and $40,000). 

The court agreed with the parties, and calculated the tax offense level

according to the 1997 tax loss figure and the 1997 verison of the guidelines.1**In

reaching his total offense level, the court refused to group the tax fraud count with

the count of unlawful possession of a bomb, but the court did reduce the total

offense level based on Musurlian’s early acceptance of responsibility. The court

then sentenced Musurlian to 27 months’ imprisonment, the bottom of the guidelines

range. See U.S.S.G. §§ 2K2.1, 3D1.2, 3D1.4. 

We invited Musurlian to respond to counsel’s Anders motion, see Cir. R. 51(b),

but he has not done so. Thus, our review is limited to the potential issues identified

in counsel’s facially adequate brief. See United States v. Johnson, 248 F.3d 655,

667-68 (7th Cir. 2001). 

Counsel first considers whether Musurlian could argue that the district court

miscalculated the offense level for his tax count. In particular, counsel asks

whether Musurlian could contest the court’s use of the 1997 version of the

guidelines, instead of the current version of the guidelines at the time of his

sentencing. See U.S.S.G. §§ 1B1.11(a), (b). But as counsel notes, the use of the

1997 version actually benefitted Musurlian because it set the offense level lower

than the current verison. Although the government agreed to recommend the use

the 1997 version of the guidelines to avoid ex post facto concerns, we note that

applying changes in the guidelines retroactively does not violate the ex post facto
No. 06-1974 Page 3

clause because the guidelines are only advisory, not binding laws or regulations. 

See United States v. Demaree, 459 F.3d 791, 195 (7th Cir. 2006). 

Counsel next asks whether Musurlian could argue that the 1997 tax loss

figure is overstated. She notes that while the district court did base the amount of

tax loss on the 1997 figure alone, that amount may still be overstated because the

court refused to consider any legitimate, yet unclaimed deductions for his payment

of invoices reflecting the cost of inventory for the car repair shop. The guidelines

provide that tax loss should “be treated as equal to 28% of the unreported gross

income . . . unless a more accurate determination of the tax loss can be made.” 

U.S.S.G. § 2T1.1(c), note A. Counsel considers whether applying unclaimed

deductions could lead to “a more accurate determination.” However, we have

concluded that this guidelines provision “simply allows the defendant or the

government to argue for a rate that is more accurate than the 28% presumptive

rate.” United States v. Chavin, 316 F.3d 666, 679 (7th Cir. 2002). In Chavin, we

reasoned that the proper basis for the tax loss figure is the “attempted or intended

loss, rather than the actual loss to the government,” Id. at 677 (emphasis in

original), and therefore held that “[c]onsidering unclaimed deductions is outside of

the purview of what we are trying to accomplish in tax-loss calculations.” Id. at

679. Counsel correctly points out that in light of Chavin, any challenge to the

district court’s refusal to consider unclaimed deductions in the tax loss figure would

be frivolous. 

Counsel next asks whether the district court properly refused to group the

tax offense and the bomb offense. See U.S.S.G. § 3D1.2. Under the guidelines,

offenses “involving substantially the same harm” can be grouped, id; United States

v. Brisson, 448 F.3d 989, 992 (7th Cir. 2006), and counsel considers whether the

court erroneously found that the harm caused by tax fraud and possession of a pipe

bomb were not substantially the same. But counsel correctly concludes that the two

offenses do not create similar harms because they affect different victims and arise

from separate transactions; therefore any challenge to the court’s decision not to

group the offense would be frivolous. Finally, counsel considers whether

Musurlian could argue that the district court should have sentenced him below the

guidelines range. Counsel notes that Musurlian could argue that the court

insufficiently considered the § 3553(a) factors when sentencing him to a withinguidelines sentence. But because Musurlian’s sentence falls within the properly

calculated guidelines range, it is presumed reasonable, and counsel says she cannot

find any basis to rebut this presumption. See United States v. Mykytiuk, 415 F.3d

606, 608 (7th Cir. 2005). Although the Supreme Court has recently granted a writ

of certiorari to consider whether according a presumption of reasonableness to

within-guidelines sentences is consistent with United States v. Booker, 543 U.S. 220

(2005), see United States v. Rita, No. 05-4674, 2006 WL 1144508 (4th Cir. May 1,

2006), cert granted, 75 U.S.L.W. 3246 (U.S. Nov. 3, 2006) (No. 06-5754), the
No. 06-1974 Page 4

resolution of that case would not affect our conclusion that a challenge to

Musurlian’s’s sentence would be frivolous. Here, the district court fulfilled its duty

to consider the sentencing factors under § 3553(a), and chose the sentence after

carefully weighing the seriousness of his crimes against his particular

characteristics, including his age (he was 65 years old at sentencing), his standing

in the community as a small business owner, and his lack of a criminal record. See

United States v. Juarez, 454 F.3d 717, 721 (7th Cir. 2006).

 Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.