United States v. Donna Fecondo

── United States v. Donna Fecondo ── Court: Court of Appeals for the Third Circuit Date: May 26, 2026 Category: General U.S. COURT OF APPEALS FOR THE THIRD CIRCUIT No. 24-1618 UNITED STATES OF AMERICA v. DONNA FECONDO, Appellant _____________________________ Appeal from the U.S. District Court, E.D. Pa. Judge Mitchell S. Goldberg, No. 22-cr-00011-001 Before: RESTREPO, PHIPPS, and MASCOTT, Circuit Judges Argued Jan. 21, 2026 Decided May 26, 2026 _____________________________ NONPRECEDENTIAL OPINION* RESTREPO, Circuit Judge. Donna Fecondo was convicted of several federal tax offenses, including failure to pay over taxes in violation of 26 U.S.C. § 7202. On appeal, she argues that the District Court miscalculated her offense level and sentencing range under United States Sentencing Guideline § 2T1.6. For the following reasons, we will vacate Fecondo’s sentence and remand for resentencing. * This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent.  I. Donna Fecondo was president of her family’s mushroom farm business, Joseph Silvestri & Son, Inc. (“JSSI”). In this role, she was responsible for withholding “employment taxes”—including Federal Income Contribution Act (“FICA”) taxes and federal income taxes—from employees’ paychecks and remitting those amounts to the IRS. She was also responsible for paying JSSI’s share of “employer-portion” FICA taxes.1 For many years, Fecondo failed to meet these and other tax obligations. On January 13, 2022, she was indicted for failing to pay over employment taxes for tax years 2015 and 2016 in violation of 26 U.S.C. § 7202 (Counts 1 and 2) and failing to file corporate income tax returns (Counts 3 and 4) and individual income tax returns (Counts 5 and 6) for tax years 2015 and 2016 in violation of 26 U.S.C. § 7203. She pleaded guilty to all six counts. The parties agreed that no tax loss would be attributed to Counts 3 through 6 for sentencing purposes, so the offense guideline for Counts 1 and 2, USSG § 2T1.6, controlled. However, they disputed the amount of tax loss that should be used to determine Fecondo’s base offense level under § 2T1.6. Specifically, the Government argued that approximately $1.8 million2 in unpaid employer-portion taxes from 2009 to 2019 should be included in the tax loss calculation as “relevant conduct” pursuant to USSG § 1B1.3. 1 The Internal Revenue Code requires employers to deduct employees’ share of FICA and individual income taxes from wages and pay those withholdings to the IRS. See 26 U.S.C. §§ 3101–3102, 3402–3403. Employers are also required to pay their own portion of FICA taxes to the IRS, separate from the taxes withheld from employees’ wages. See 26 U.S.C. § 3111. 2 The parties dispute the exact amount of employer-portion taxes at issue, but any discrepancy does not affect the outcome of this appeal. 2  The District Court agreed with the Government’s analysis. It applied § 2T1.6 and found the total tax loss to be $5,077,853, including the $1.8 million in employer-portion taxes. Based on this total loss, Fecondo’s Guidelines sentencing range was 41 to 51 months. On March 21, 2024, Fecondo was sentenced to 46 months in prison and three years of supervised release. She timely appealed. II.3 Fecondo argues that the text of § 2T1.6 limits operative tax loss to third-party taxes, so the District Court erred by including employer-portion taxes in its tax loss calculation. Because Fecondo raises this argum