United States v. Perrin ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4224
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
COREY F. PERRIN,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Parkersburg. Robert C. Chambers,
District Judge. (6:06-cr-00073)
Submitted: August 8, 2007 Decided: August 20, 2007
Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Travis E. Ellison, III, LAW OFFICES OF JOHN R. MITCHELL, L.C.,
Charleston, West Virginia, for Appellant. Charles T. Miller,
United States Attorney, R. Booth Goodwin II, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Corey F. Perrin pled guilty pursuant to a plea agreement
to tax evasion in violation of 26 U.S.C. § 7201 (2000) and was
sentenced to fifteen months in prison. Perrin argues the district
court erred in increasing his offense level pursuant to U.S.
Sentencing Guidelines Manual (“USSG”) § 3B1.1 (1998). Perrin
alleges that because the district court did not determine his
criminal activity involved five or more participants and because it
was allegedly error for the district court to consider his check-
kiting activity in determining whether his criminal activity was
“otherwise extensive,” § 3B1.1 should not have been applied to his
offense level. Perrin also argues the district court erred in
applying § 3B1.1 to his offense level because there was no evidence
in the record establishing he was a manager or supervisor of the
offense for which he was convicted. Finding no such error, we
affirm Perrin’s sentence.
“In assessing a challenge to a sentencing court's
application of the Guidelines, [this Court] review[s] the
[district] court's factual findings for clear error and its legal
conclusions de novo." United States v. Allen, 446 F.3d 522, 527
(4th Cir. 2006). “A [factual] finding is ‘clearly erroneous’ when
although there is evidence to support it, the reviewing court on
the entire [record] is left with the definite and firm conviction
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that a mistake has been committed.” United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948).
A three-level enhancement for the defendant’s role in the
offense is appropriate when “the defendant was a manager or
supervisor (but not an organizer or leader) and the criminal
activity involved five or more participants or was otherwise
extensive.” USSG § 3B1.1(b). Such an enhancement requires, at a
minimum, that the defendant was the manager or supervisor “of one
or more other participants.” USSG § 3B1.1, comment. (n.2); United
States v. Bartley, 230 F.3d 667, 673 (4th Cir. 2000) (“[T]he
enhancement is justified if the defendant managed or supervised the
activities of at least one other person in a scheme that involved
five or more participants.”). Moreover, in determining whether the
criminal activity was “otherwise extensive,” the district court
must consider all relevant conduct as defined by USSG § 1B1.3, and
“not [make its determination] solely on the basis of elements and
acts cited in the count of conviction.” USSG Ch.3, Pt. B, intro.
comment. (1998).
Perrin incorrectly states that the district court failed
to find that five or more participants were involved in the
criminal activity for which he was convicted. To the contrary, the
district court explicitly stated that it believed “the probation
officer has correctly ascertained that five or more persons were
participants in [the tax evasion] activity.” Although the district
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court went on to determine that, “even if [the activity] did not
involve five or more participants . . . the Court would find that
it was otherwise extensive” under § 3B1.1(b), the court never
stated that the first prong of § 3B1.1(b) had not been met.
Accordingly, even if the district court had erred in finding the
criminal activity was “otherwise extensive,” application of the
enhancement would nonetheless be appropriate based on the number of
participants involved. See USSG § 3B1.1(b) (providing that
criminal activity must involve five or more participants or be
“otherwise extensive”).
Perrin again misstates the record by arguing the district
court incorrectly determined that the criminal activity in which he
engaged was “otherwise extensive” under § 3B1.1(b) because the
district court inappropriately considered check-kiting activity as
part of the relevant conduct for that determination. Again, the
district court explicitly concluded that, “even if you take out the
check-kiting, the Court believes that it was otherwise extensive.”
Contrary to Perrin’s assertions, the district court found that
Perrin “continued to solicit funds and to use those funds obtained
for these different corporations for a variety of purposes knowing
that they had tax liability, admitting that the tax liability had
not been paid, and yet directing that others not use the resources
of the company to pay the taxes.”
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The district court also found that Perrin “went to the
trouble of obtaining a bank loan. Again that was supposed to be
used for paying taxes. He didn’t do that, directed that it not be
used for that purpose.” It was on this basis that the district
court found the criminal activity in which Perrin engaged to be
“otherwise extensive.” Accordingly, we reject Perrin’s argument
that the district court’s findings were tainted by inappropriate
consideration of Perrin’s check-kiting activity.
Finally, Perrin claims the district court erred by
applying USSG § 3B1.1 to his offense level because there was no
evidence he exercised decision-making authority over the tax
evasion activity and because the activities upon which the district
court relied to support its finding of his managerial role were
inherent to his job. We conclude the district court correctly
found Perrin’s activity qualified him as a manager or supervisor of
the tax evasion scheme for which he was convicted.
The PSR as adopted by the district court indicated that
in his management-level roles within the companies, Perrin
supervised employees who could have written checks to pay the
companies’ tax liabilities, and even personally directed employees
not to pay the tax liabilities because, as he misrepresented, he
was negotiating payment with the IRS. Moreover, although Perrin
claims he was ordered by the companies’ owner not to pay the
companies’ taxes, Perrin was in a position in which he could have,
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had he so desired, directed payment of the companies’ tax
liabilities. In fact, although Perrin obtained a loan to pay the
companies’ tax liabilities, Perrin failed to pay the taxes with
these proceeds and instead diverted the money elsewhere.
Moreover, the plea agreement to which Perrin agreed
explicitly states that Perrin obtained a loan on behalf of Excel
“of which proceeds approximately $95,000 was to be used ostensibly
for payment of federal trust fund taxes then due and owing . . .
[and that] Perrin failed to pay and directed others not to pay.”
The plea agreement also stipulates that Perrin was in a high enough
position to actually inform an IRS agent that he was in
negotiations with another IRS official to reduce the amounts due
and owing by Excel, “which statement he then and there well knew to
be false.” Because the activities to which Perrin admitted he
engaged meet the requirements of a manager or supervisor under USSG
§ 3B1.1(b), cf. Bartley, 230 F.3d at 673-74 (holding enhancement
appropriate where defendant arranged logistics of marijuana
deliveries or payments and coordinated activities of others), we
conclude the district court did not err in finding that Perrin’s
role in the offense justified a three-level enhancement under §
3B1.1(b).
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Accordingly, we affirm Perrin’s sentence. 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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