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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 93-5041
United States of America,
Plaintiff-Appellee,
VERSUS
Elvis C. Stout, Deft. #1,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
(September 6, 1994)
Before REYNALDO G. GARZA, DEMOSS, and PARKER,* Circuit Judges.
DEMOSS, Circuit Judge:
Elvis C. Stout appeals various portions of his sentence. We
affirm in part and vacate and remand in part.
I.
Stout is a former judge for the city of Monroe, Louisiana.
Between 1982 and 1989, though Stout filed for extensions on his tax
returns with the Internal Revenue Service (IRS), he failed each
*In June 1994, when oral arguments were heard in this appeal,
Judge Robert M. Parker was chief judge of the Eastern District of
Texas, sitting on the appellate panel by designation. As of the
date of this opinion, Judge Parker has been confirmed as a judge on
the United States Court of Appeals for the Fifth Circuit.

year to file a timely return and, furthermore, never has paid his
taxes for those years. Stout ultimately did file returns for 1984-
89, which showed that he owed $112,393 in taxes. As for 1982-83,
Stout still has not filed returns for those years. He estimates
that his tax liability is $3,000 for each year. Therefore, by his
own estimate, Stout's total tax liability for 1982-89 is $118,393.
His total liability for IRS penalties and interest for the period
is $119,450.55.
In April 1993, Stout pleaded guilty to the charge of failing
to file a timely tax return for 1988. 26 U.S.C. § 7203. The plea
agreement stated, in part: "in addition to the penalties set forth
in the preceding paragraphs, the Court may order him as a condition
of probation or Supervised Release to resolve any civil tax
liability with the Internal Revenue Service." At the sentencing
hearing in June 1993, the district court concluded that Stout's
total offense level was nine and his criminal history category was
one, yielding a sentencing range of four to ten months. The court
departed upward and sentenced Stout to the statutory maximum of
twelve months, which according to the sentencing table amounts to
a one level increase in Stout's criminal history category. The
court justified the upward departure as follows:
Because of the aggravating circumstances related to this
offense I'm going to depart above the amended guideline range.
The reasons for that departure are the following, which in my
opinion are not considered by the guidelines. You have still
not submitted your tax returns for '82 and '83. The main
reason you were not charged with failure to file in '82 and
'83 and '84 is those have prescribed. You still have not paid
the income tax owed for all of those years. And during those
years you continued to maintain a standard of living beyond
that of the average taxpayer. You have ignored the tax laws
2

of the State for many years, have failed to file and pay in
full on your state income taxes. You sat in judgment of your
fellow citizens for twenty years. And it seems to me, as
such, you should be held to a higher standard of
accountability, and you should have had the legal expertise as
well as the moral sense as a recipient of the taxpayers'
funds, respect, and trust, to know better. For those reasons
you are committed to the custody of the Bureau of Prisons for
twelve months.
The court also (1) sentenced Stout to one year of supervised
release, (2) ordered Stout to pay $20,189 in restitution which was
Stout's tax liability for 1988, and (3) ordered Stout to reach a
repayment schedule with the IRS during his year of supervised
release whereby Stout would pay the $98,204 in remaining back taxes
due for the years 1982-87 and 1989. Stout now appeals his
sentence.
II.
Stout's appeal originally consisted of two issues: (1) the
district court's upward departure, and (2) the district court's
condition of supervised release. After oral argument, the
government conceded a third issue. Stout now seeks the benefit of
the government's concession. We will address each issue in turn.
A.
Stout first appeals the district court's decision to depart
upward in sentencing him.1 We affirm an upward departure from the
Sentencing Guidelines "if the district court offers 'acceptable
1Stout also appeals various factual findings the sentencing
court made in determining his offense level. Stout concedes that,
if the panel affirms the court's upward departure, then his appeal
of the sentencing court's determination of his offense level is
moot. Because we affirm his upward departure, we will not address
his appeal of the court's factual findings.
3

reasons' for the departure and the departure is 'reasonable.'"
United States v. Lambert, 984 F.2d 658, 663 (5th Cir. 1993) (en
banc) (quoting United States v. Velasquez-Mercado, 872 F.2d 632,
635 (5th Cir. 1989)). The issue here is whether the district court
proffered "acceptable reasons." The enabling legislation for the
Guidelines states that "the Commission shall assure that the
guidelines and policy statements are entirely neutral as to the .
. . socioeconomic status of offenders." 28 U.S.C. § 994(d); see
also U.S.S.G. § 5H1.10 (p.s.) (socioeconomic status is "not
relevant in the determination of a sentence").
The district court below provided six reasons for departing
upward: (1) Stout never filed tax returns for 1982 and 1983; (2)
Stout was not charged for failure to timely file in 1982, 1983, and
1984 because those charges had "prescribed;" (3) Stout still has
not paid any taxes; (4) Stout, meanwhile, has maintained an
excessive lifestyle; (5) Stout also violated Louisiana tax laws;
and (6) Stout was a judge for 20 years and, as such, essentially
should have known better than to refuse to pay taxes. Stout
contends that two of the court's reasons proffered at sentencing,
i.e., (4) and (6), are socioeconomic and hence unacceptable,
thereby rendering the sentence an abuse of discretion. Stout's
point is persuasive. Notwithstanding the government's contrary
assertions,2 the court justified its reasons, in part, on Stout's
2The government attempts to characterize the court's
statements as an assessment of "defendant's culpability based upon
his knowledge of the law and his ability to pay the taxes due."
The government's argument is meritless. The comments clearly
relate to Stout's socioeconomic status.
4

socioeconomic status. We have vacated criminal sentences on the
ground that the sentencing court considered the defendant's
socioeconomic status. See United States v. Hatchett, 923 F.2d 369
(5th Cir. 1991); United States v. Burch, 873 F.2d 765 (5th Cir.
1989).3
The question then becomes whether the upward departure is
nonetheless supportable by the presence of other "acceptable
reasons." We permit an otherwise improper upward departure to be
upheld on appeal where "the reviewing court concludes, on the
record as a whole, that the error was harmless, i.e., that the
error did not affect the district court's selection of the sentence
imposed." Lambert, 984 F.2d at 663 n.11 (quoting Williams v.
United States, 112 S. Ct. 1112, 1120-21 (1992)). The government
argues here that four other acceptable reasons exist to affirm the
sentencing court's upward departure.
We agree with the government. First, the upward departure
here was only two months and resulted in only a one level jump in
his criminal history category. Second, Hatchett and Burch are
distinguishable
on
the
grounds
that
the
socioeconomic
considerations raised by the sentencing courts in those cases
3The sentencing court in Hatchett was sentencing the
defendants within the applicable guideline range, whereas the
sentencing court in Burch was departing upward from the applicable
guideline range. This distinction, however, is irrelevant because
the Guidelines forbid sentencing courts to consider socioeconomic
status, regardless of whether the court is sentencing within or
outside the applicable range. U.S.S.G. Ch.5, Pt.H, intro.
comment.; see also Hatchett, 923 F.2d at 374-75 (court refuses to
distinguish Burch on the ground that it involved an upward
departure).
5

represented a large portion of the courts' justification for
departing upward. See Hatchett, 923 F.2d at 372-75 (the court's
impermissible statements were "too interrelated" with permissible
ones); Burch, 873 F.2d at 767-69 (court justifies upward departure
only on defendant's social history and criminal past). Here, the
court provided four other acceptable reasons to justify a two-month
upward departure. While the sentencing court's socioeconomic
statements were not valid grounds for an upward departure under the
Guidelines, and such statements should be avoided at all times,
they nonetheless constitute harmless error in this case. We
therefore affirm the sentencing court's upward departure.4
B.
Stout next appeals the district court's order that Stout reach
a repayment schedule with the IRS during his year of supervised
release, whereby Stout would pay $98,204 in remaining back taxes
(i.e., Stout's tax liability for 1982-87 and 1989) as a condition
of such supervised release. Sentencing courts are permitted to
impose restitution as a condition of supervised release to the
extent agreed to by the government and the defendant in a plea
agreement. See 18 U.S.C. § 3563(b)(3); 18 U.S.C. § 3583(d); 18
U.S.C. § 3663(a)(3). Stout argues that the clause in the plea
4Stout also argues that the sentencing court abused its
discretion in not granting a downward departure because his case
was "atypical." Specifically, Stout contends that because he filed
for an extension each year, the IRS was on notice as to who he was
and where he could be found. We will not review a refusal to
depart, unless the refusal was in violation of the law. United
States v. Lara-Velasquez, 919 F.2d 946, 954 n.9 (5th Cir. 1990).
Stout does not point to any evidence that the court's refusal
violated the Guidelines.
6

agreement relating to resolving his outstanding tax liabilities
cannot be construed as an obligation to pay those taxes or to make
restitution. Stout maintains that he was obligated only to
negotiate a settlement with the IRS.
We agree. Stout never expressly stated in the plea agreement
-- or anywhere else -- that he would pay all or any specific
portion of his remaining tax liability. Instead, Stout only agreed
to "resolve" that liability. We therefore vacate this portion of
Stout's sentence and remand the case to the district court for the
limited purpose of determining whether to impose another condition
of supervised release that is consistent with the plea agreement
and 18 U.S.C. § 3563. See 18 U.S.C. § 3742(f)(1) ("[i]f the court
of appeals determines that the sentence was imposed in violation of
the law . . . , the court shall remand the case for further
sentencing proceedings with such instructions as the court
considers appropriate"); see also United States v. Mills, 959 F.2d
516, 519-20 (5th Cir. 1992).
C.
Finally, we address an issue raised for the first time at oral
argument by this court. As we noted at that time, the sentencing
court's separate restitution order regarding Stout's 1988 tax
liability was improper because the restitution statute permits such
separate orders only when the defendant's offense is an offense
under either Title 18 or Title 49. 18 U.S.C. § 3663(a)(1); United
7

States v. Reece, 998 F.2d 1275, 1282 (5th Cir. 1993).5 Stout was
convicted of an offense under Title 26. Following oral argument,
the government conceded that this separate restitution order was
error and moved to remand the case for re-sentencing. We therefore
will grant the government's motion, but with certain instructions.
We vacate the portion of Stout's sentence relating to the separate
restitution order and remand the case for re-sentencing with
instructions to the court that Stout's sentence not include any
such restitution order. See 18 U.S.C. § 3742(f)(1).
III.
For the reasons stated above, the government's motion to
remand is GRANTED and Stout's sentence is AFFIRMED in part and
VACATED AND REMANDED in part.
5The restitution statute also permits a sentencing court to
"order restitution in any criminal case to the extent agreed to by
the parties in a plea agreement." 18 U.S.C. § 3663(a)(3). But as
we stated earlier, the plea agreement in this case is not so
specific as to conclude that Stout agreed to pay any of his taxes.
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