United States v. Fokkoun-Ngassa

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5127
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALOYSIUS T. FOKKOUN-NGASSA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:06-cr-00153)
Submitted: October 24, 2007 Decided: November 6, 2007
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Matthew A. Wartel, LOWE, CARLO & WARTEL, LLP, Alexandria, Virginia,
for Appellant. Chuck Rosenberg, United States Attorney, Timothy D.
Belevetz, Assistant United States Attorney, Alexandria, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Aloysius T. Fokkoun-Ngassa appeals his convictions and
33-month sentence imposed following the jury verdict of guilty on
twelve counts of aiding in the preparation of a false tax return,
in violation of 26 U.S.C. § 7206(2) (2000). On appeal, he
challenges the sufficiency of the evidence and the amount of loss
attributed to him at sentencing. Finding no error, we affirm.
Fokkoun-Ngassa, a tax preparer, was indicted on multiple
charges of aiding in the preparation of a false tax return. At
trial, the Government presented the testimony of seven taxpayers
for whom Fokkoun-Ngassa prepared returns. Each of them testified
that Fokkoun-Ngassa had used an incorrect filing status and/or
overstated deductions for them, resulting in an increase in the
amount of a tax refund the taxpayer would receive. The taxpayers
testified that they had not provided Fokkoun-Ngassa with any
information to support the deduction amounts.
The Government also presented evidence that employees in
Fokkoun-Ngassa’s office entered only identification information and
W-2 information into the computer-assisted tax-preparation software
used to prepare the taxpayers’ returns. Fokkoun-Ngassa was the
only person who entered deduction information and he was the only
person in the office who signed tax returns as the preparer. An
IRS special agent testified that she posed as a client and
requested that Fokkoun-Ngassa prepare her return. In doing so, he
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created deductions for mileage, gifts to charity, dry cleaning, and
professional dues and supplies, for which the agent was not
authorized, resulting in a refund of $1500 more than she was
allowed based on the information that she provided. She testified
that Fokkoun-Ngassa repeatedly stated that he would try to help
her.
Fokkoun-Ngassa presented the testimony of his brother
that office workers did, in fact, enter deduction information into
the computer system and that, given the volume of returns handled
by the office, the erroneous returns for which he was charged were
likely the result of mistakes, not willful conduct. In reviewing
sufficiency of the evidence, all credibility determinations are
resolved in favor of the Government. See United States v.
Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
We find that, viewing the evidence in the light most
favorable to the Government, there was sufficient evidence to
support the jury’s verdict of guilty on the twelve charges of
aiding in the preparation of a false tax return for which Fokkoun-
Ngassa was convicted. See Glasser v. United States, 315 U.S. 60,
80 (1942); United States v. Aramony, 88 F.3d 1369, 1382 (4th Cir.
1996) (providing elements of § 7206(2) offense).
Fokkoun-Ngassa also argues that his sentence was enhanced
improperly based on uncharged and acquitted conduct. However,
contrary to Fokkoun-Ngassa’s arguments, the sentencing court may
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consider uncharged and acquitted conduct in determining a sentence,
as long as the conduct is proven by a preponderance of the
evidence. See United States v. Watts, 519 U.S. 148, 151-52, 157
(1997); United States v. Bowman, 926 F.2d 380, 381-82 (4th Cir.
1991) (uncharged conduct); United States v. Isom, 886 F.2d 736, 738
(4th Cir. 1989) (acquitted conduct). This rule remains valid after
United States v. Booker, 543 U.S. 220 (2005). See United States v.
Mercado, 474 F.3d 654, 657 (9th Cir. 2007) (collecting cases),
petition for cert. filed, U.S.L.W. (U.S. Aug. 8, 2007) (No.
07-5810); see also United States v. Morris, 429 F.3d 65, 72 (4th
Cir. 2005) (holding that preponderance of the evidence standard
continues to apply after Booker), cert. denied, 127 S. Ct. 121(2006).
We find that the sentencing court did not clearly err in
finding that the tax loss attributable to Fokkoun-Ngassa’s conduct
exceeded $200,000. See United States v. Uwaeme, 975 F.2d 1016,
1018 (4th Cir. 1992) (providing standard). Accordingly, we affirm
Fokkoun-Ngassa’s convictions and 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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