IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30624

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

KEVIN DALCOURT,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 6:16-CR-21-1

Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Kevin Dalcourt appeals the sentence imposed 

following his guilty plea conviction for one count of making and subscribing a 

false tax return in violation of 26 U.S.C. § 7206(1). He contends that the 

$89,927 fine is constitutionally excessive because it is punitive in nature and 

grossly disproportional to the gravity of his offense. We affirm. 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 17, 2018

Lyle W. Cayce

Clerk

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No. 17-30624

2

We need not determine if the constitutional issue was preserved because, 

even on de novo review, Dalcourt’s arguments fail. The record reflects that the 

fine is related and proportional to the gravity of Dalcourt’s offense. See United 

States v. Bajakajian, 524 U.S. 321, 334 (1998). As a professional tax preparer 

who filed false tax returns on behalf of himself and several clients, Dalcourt is 

clearly within the class of persons for whom the statute was designed. See

§ 7206; United States v. Morrison, 833 F.3d 491, 500-02 (5th Cir. 2016); United 

States v. Haynes, 573 F.2d 236, 240 (5th Cir. 1978). Although the fine exceeds 

the $4,000 to $40,000 guidelines range, it is well below the statutory maximum 

fine of $250,000. See § 7206; 18 U.S.C. § 3571(b)(3), (e). The district court 

explained that the $89,927 fine was imposed to adequately account for 

Dalcourt’s conduct and the actual tax losses not covered by the $397,989.78 

restitution order. Defense counsel’s arguments in support of mitigation of 

sentence confirms that Dalcourt was employable and would be capable of 

paying the fine and restitution in monthly installments on his release from 

prison. Dalcourt has not shown that the fine violates the Eighth Amendment. 

See Bajakajian, 524 U.S. at 334, 337-39.

Dalcourt also contends that his above-guidelines sentence is 

substantively unreasonable. He notes that, in addition to a fine more than 

twice the maximum amount recommended by the Guidelines, the district court 

also sentenced him above the applicable guidelines range to the 36-month 

statutory maximum term of imprisonment and ordered that the sentence run 

consecutively to the state sentence he is currently serving.

The record reflects that the district court considered the advisory 

guidelines range, the statutory penalties, the 18 U.S.C. § 3553(a) factors, the 

facts set forth in the presentence report, Dalcourt’s arguments in mitigation of 

sentence, and the Government’s request for an upward variance. The district 

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No. 17-30624

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court made an individualized assessment and concluded that the guidelines 

range did not adequately take into account the § 3553(a) factors. Although the 

district court imposed the statutory maximum term of imprisonment, the 36-

month sentence is only six months greater than the top of the 24 to 30-month 

guidelines range. We have upheld variances substantially greater than the 

increase to Dalcourt’s term of imprisonment. See United States v. Jones, 444 

F.3d 430, 433, 441-42 (5th Cir. 2006). The above-guidelines fine is also well 

below the statutory maximum fine, and the district court’s imposition of a 

consecutive sentence was authorized by 18 U.S.C. § 3584(a) and U.S.S.G. 

§ 5G1.3(a).

Dalcourt’s assertions do not show a clear error of judgment on the district 

court’s part in balancing the § 3553(a) factors. Instead, they constitute a mere 

disagreement with the district court’s weighing of those factors. Given the 

significant deference that is owed to a district court’s consideration of the 

§ 3553(a) factors and the district court’s reasons for its sentencing decision, 

Dalcourt has not demonstrated that the sentence is substantively 

unreasonable. See Gall v. United States, 552 U.S. 38, 50-53 (2007); United 

States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008). The district court’s 

judgment is AFFIRMED.

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