United States v. Faiger Blackwell , 695 F. App'x 64 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4285
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FAIGER MEGREA BLACKWELL,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., Chief District Judge. (1:15-cr-00342-WO-1)
Submitted: July 28, 2017 Decided: August 16, 2017
Before DUNCAN, THACKER, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas H. Johnson, Jr., Greensboro, North Carolina, for Appellant. Sandra J. Hairston,
Acting United States Attorney, Frank J. Chut, Jr., Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Faiger Megrea Blackwell appeals his conviction after pleading guilty to
obstructing or impeding the due administration of the internal revenue laws and
concealing assets of his bankruptcy estate. Blackwell challenges the district court’s loss
calculation, arguing that the diverted funds that he used for legitimate business expenses
should not be included in the loss amount and that collateral held by one of his creditors
should alter the loss calculation. Blackwell also challenges the restitution order and
asserts that he is actually innocent of his crimes because the Government would not have
been able to prove the facts to which he pled guilty. We affirm.
First, Blackwell’s argument that he is actually innocent does not persuade.
Blackwell pled guilty to obstructing the IRS and concealing assets of his bankruptcy
estate. The present amount of taxes owed to the IRS and the precise collateral that
certain creditors held do not alter the fact that Blackwell concealed and diverted certain
assets after filing for bankruptcy. Nor has Blackwell moved to withdraw his guilty plea.
Next, having carefully reviewed the record, we conclude that the district court did
not clearly err when it calculated the loss amount. United States v. Otuya, 720 F.3d 183,
191 (4th Cir. 2013) (stating standard of review). To “determin[e] the amount of loss in a
bankruptcy fraud case, courts may look to the amount of loss the defendant intended to
cause by concealing assets, rather than the amount of loss creditors actually suffered.”
United States v. Hughes, 401 F.3d 540, 557 (4th Cir. 2005) (brackets and internal
quotation marks omitted). “[T]he [district] court ‘need only make a reasonable estimate
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of the loss.’” United States v. Cloud, 680 F.3d 396, 409 (4th Cir. 2012) (quoting U.S.
Sentencing Guidelines Manual § 2B1.1 cmt. n. 3(C)).
Here, the Government established the amount of loss by a preponderance of
evidence based on bank records, tax assessments, and testimony from the bankruptcy
trustee. United States v. Catone, 769 F.3d 866, 876 (4th Cir. 2014) (stating
Government’s burden of proof). There is no indication that the district court clearly erred
when it determined the loss amount based on precise figures supported by the record.
Because Blackwell did not object to the restitution order, we review this issue for
plain error. See United States v. Olano, 507 U.S. 725, 732 (1993) (discussing standard).
“We must first address which statutory provision is implicated in the district court’s order
of restitution, as the district court did not mention a statute in its sentencing colloquy or
judgment order.” United States v. Freeman, 741 F.3d 426, 431 (4th Cir. 2014) (setting
forth statutory provisions). The Victim and Witness Protection Act of 1982 and the
Mandatory Victims Restitution Act do not apply to Title 26 offenses, which includes
Blackwell’s tax offense. See 18 U.S.C. §§ 3663(a)(1)(A), 3663A(c)(1) (2012); United
States v. Perry, 714 F.3d 570, 577 (8th Cir. 2013); United States v. Nolen, 523 F.3d 331,
332 (5th Cir. 2008). In accordance with 18 U.S.C.A. § 3583(d) (West 2015 & Supp.
2017)), however, a court may, as a condition of supervised release, impose any condition
of probation listed in 18 U.S.C. § 3563(b) (2012), including “restitution to a victim of the
offense,” 18 U.S.C. § 3563(b)(2). Thus, “[18 U.S.C.A § 3583(d)], together with [18
U.S.C. § 3563(b)], unambiguously authorizes federal courts to order restitution as a
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condition of supervised release for any criminal offense, including one under Title 26.”
United States v. Batson, 608 F.3d 630, 635 (9th Cir. 2010).
We conclude that the district court did not identify the correct statute for ordering
restitution but that this error does not affect Blackwell’s substantial rights, or seriously
affect the fairness, integrity, or public reputation of judicial proceedings. See Olano, 507
U.S. at 732. The district court possessed statutory authority to impose restitution.
Furthermore, Blackwell’s written plea agreement discussed restitution and he received
notice of restitution in his presentence report; therefore, the restitution order did not
violate his due process rights.
We also conclude that the certificates of release of tax liens that Blackwell
presents for the first time on appeal do not change the restitution calculation, nor does the
record show the Government improperly withheld these documents. Blackwell appears
to argue on appeal that he should have to pay restitution to the Internal Revenue Service
(“IRS”) only for taxes that he currently owes, but, in making this argument Blackwell
conflates his initial civil tax liability with his subsequent criminal tax liability. The
restitution order related specifically to the taxes that he owed when he diverted or hid
funds from the IRS and bankruptcy trustee. Additionally, “[i]t is well settled that
although a certificate of tax lien release is conclusive that the lien is extinguished, it is not
conclusive that the tax liability is extinguished.” Boyer v. Comm’r, 86 T.C.M.
615 (2003). The mere filing of a certificate of release of a tax lien is not evidence that the
tax has been paid, and Blackwell provides no other records showing that he made
payments to the IRS for the taxes that he owed. The restitution order directs Blackwell to
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pay the amount of taxes that he obstructed the IRS from collecting as part of his criminal
scheme, and a certificate of release of a civil tax lien does not alter that directive.
Accordingly, we affirm the judgment of the district court. We dispense with oral
argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the decisional process.
AFFIRMED
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