US v. Henry Omozee, No. 08-5189 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5189 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HENRY OMOROGIEVA OMOZEE, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 U.S.C. § 7206(1) false (2006). tax On returns appeal, in he violation contends of that 26 the district court procedurally erred in calculating the amount of tax loss and the resulting base offense Sentencing Guidelines Manual § 2T1.1 (2007). We review Omozee s abuse-of-discretion standard. sentence level under U.S. We affirm. under a deferential See Gall v. United States, 552 U.S. 38, 51 (2007). The first step in this review requires us to district ensure that the 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 factual findings for clear error. F.3d 522, 527 (4th Cir. 2006). conclusions de novo and its United States v. Allen, 446 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 2 IRS had calculated under-reporting of the total income to tax be loss based approximately on Omozee s $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. Amendment right to a Instead, Omozee argued that his Sixth 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 accurate determination of the loss cannot be made. court overruled Omozee s objection and accepted a more The district 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. 495, 503 (4th Cir. 2003). See United States v. Miller, 316 F.3d 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 3 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 available facts. make a reasonable estimate based on the USSG § 2T1.1, comment. (n.1). We conclude Omozee has failed to show the district court clearly erred in finding the tax loss. informed the district court that Omozee, a The Government 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. dispense with oral argument because the facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4
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