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Case eae atiadeiceiaiy ar, 7', amaaenaenimea neal 117 Case 1:09-cr-00581-WHP Document 604 _ Filed 03/16/13 Page 12 of 14 y4 ZUCKERMAN SPAEDER up The Honorable William H. Pauley, II March 7, 2013 Page 12 tax shelters and did not function as a CPA. He gave no investment advice, and the trades were executed by his assistant. In short, his role as a broker in the three “backdating” transactions is too thin a reed to support this enhancement. If all of this is correct, then Mr. Parse should be at offense level 24, with a Guidelines range of 51 to 63 months. Of course, we believe that even that calculation produces a range that is still far too harsh. See, e.g., Smirlock v. United States, 2005 U.S. Dist. Lexis 7321 at *6 (noting that “the amount of loss that actually winds up resulting from a person’s conduct ...can be arbitrary” and may not reflect culpability); Bowman, The Failure of the Federal Sentencing Guidelines: A Structural Analysis, 105 Colum L. Rev. 1315, 1328 (2005)(“[aJt or near the root of virtually every serious criticism of the guidelines is the concern that they are too harsh”). F. Conclusion In her sentencing submission, Donna Guerin catalogued the sentences that have been imposed on those who designed and marketed illegal tax shelters. See Guerin’s Am. Sentencing Mem. 13-16, ECF No. 592. They have varied greatly in length. What makes this case different is that David Parse did not design or market tax shelters; he was a broker executing trades. Indeed, to our knowledge, of all of the brokers who performed that function for Jenkins and other law firms, he and Craig Brubaker were the only two people who were prosecuted, and he is the only one who stands convicted. DOJ-OGR-00009517