United States v. Omozee ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5189
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HENRY OMOROGIEVA OMOZEE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:08-cr-00140-LMB-1)
Submitted: December 10, 2009 Decided: January 4, 2010
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Craig W. Sampson, BARNES & DIEHL, P.C., Chesterfield, Virginia,
for Appellant. Dana J. Boente, Acting United States Attorney,
Marla B. Tusk, Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Henry Omorogieva Omozee appeals his twenty-seven month
prison sentence after a jury convicted him of three counts of
making and subscribing false tax returns in violation of 26
U.S.C. § 7206(1) (2006). On appeal, he contends that the
district court procedurally erred in calculating the amount of
tax loss and the resulting base offense level under U.S.
Sentencing Guidelines Manual § 2T1.1 (2007). We affirm.
We review Omozee’s sentence under a deferential
abuse-of-discretion standard. See Gall v. United States, 552
U.S. 38, 51 (2007). The first step in this review requires us
to ensure that the district court committed no significant
procedural error, such as improperly calculating the guideline
range. United States v. Carter, 564 F.3d 325, 328 (4th Cir.
2009). In assessing a sentencing court’s application of the
guidelines, we review its legal conclusions de novo and its
factual findings for clear error. United States v. Allen, 446
F.3d 522, 527 (4th Cir. 2006). We then consider the substantive
reasonableness of the sentence imposed, taking into account the
totality of the circumstances. Gall, 552 U.S. at 51.
The Government presented evidence at trial that Omozee
had $276,984.27 in unreported income over a three-year period.
At sentencing, the Government provided an affidavit from a
special agent with the Internal Revenue Service (“IRS”) that the
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IRS had calculated the total tax loss based on Omozee’s
under-reporting of income to be approximately $82,430. The
Government also provided Omozee the underlying calculations from
the IRS, and he had an opportunity to object to the calculations
but he did not do so. Instead, Omozee argued that his Sixth
Amendment right to a trial by jury would be violated by
increasing his guideline offense level based on extra verdict
enhancements that were neither admitted by him nor found by the
jury. He also noted that the affidavit used the term
“approximately,” and he suggested that the district court should
utilize the formula for calculating tax loss when a more
accurate determination of the loss cannot be made. The district
court overruled Omozee’s objection and accepted the IRS’s
determination of tax loss.
On appeal, Omozee argues that the district court erred
in accepting the Government’s estimated tax loss of $82,430, and
“the proper method is to calculate 28% of the unreported gross
income.” We review the district court’s factual determination
of loss for clear error. See United States v. Miller, 316 F.3d
495, 503 (4th Cir. 2003). Pursuant to USSG § 2T1.1(c)(1), “the
tax loss is the total amount of loss that was the object of the
offense (i.e., the loss that would have resulted had the offense
been successfully completed).” When the offense involves filing
a tax return in which gross income was under-reported, “the tax
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loss shall be treated as equal to 28% of the unreported gross
income . . . plus 100% of any false credits claimed against tax,
unless a more accurate determination of the tax loss can be
made.” USSG § 2T1.1(c)(1), n.(A). In some instances, “the tax
loss may be uncertain,” and “the guidelines contemplate that the
court will simply make a reasonable estimate based on the
available facts.” USSG § 2T1.1, comment. (n.1).
We conclude Omozee has failed to show the district
court clearly erred in finding the tax loss. The Government
informed the district court that Omozee, a certified public
accountant, was given the opportunity to review and object to
the IRS’s calculations, but he did not do so. Rather, he raised
a Sixth Amendment argument that was without merit, see United
States v. Grubbs, 585 F.3d 793, 799 (4th Cir. 2009), and noted
that the Government’s affidavit used the term “approximately.”
It was not clear error for the district court to conclude that
the IRS’s determination of the tax loss, which was not disputed
by Omozee, was “a more accurate determination of the tax loss”
than a straight percentage of the unreported income.
We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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