United States v. Gray , 337 F. App'x 365 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4406
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SAMUEL ANDREW GRAY, SR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:05-cr-00888-TLW-1)
Submitted: June 18, 2009 Decided: July 10, 2009
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.
Michael W. Chesser, Aiken, South Carolina, for Appellant. John
DiCicco, Acting Assistant Attorney General, Columbia, South
Carolina, Alan Hechtkopf, Elissa Hart-Mahan, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Samuel Andrew Gray, Sr. appeals from a judgment
entered after a trial convicting him of eighteen counts of
failing to pay over to the Internal Revenue Service and the
United States income tax, social security and Medicare taxes,
withheld from Appellant’s employees’ wages, in violation of 26
U.S.C. § 7202 (2006) and 18 U.S.C. § 2 (2006), one count of
conspiracy to commit fraud and to defraud the United States, in
violation of 18 U.S.C. § 371 (2006), three counts of fraud, in
violation of 18 U.S.C. § 2, 18 U.S.C.A. § 1341 (West Supp.
2009), three counts of receipt of stolen funds, in violation of
18 U.S.C. § 2315 (2006), and three counts of money laundering,
in violation of 18 U.S.C. §§ 2, 1957 (2006). Counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
certifying there were no meritorious arguments for appeal, but
raises for the court’s consideration whether the district court
erred enhancing Gray’s offense level by four levels after
finding Gray was in the business of laundering money. Gray
filed a pro se supplemental brief raising several issues. The
Government filed a brief addressing Gray’s issues. Because
there was an error with the order of restitution that was not
harmless, we affirm the convictions, but vacate the sentence and
remand for resentencing.
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Gray argues the district court erred continuing with a
hearing after retained counsel identified a conflict of
interest, that he was denied his Sixth Amendment right to
counsel because his funds were frozen due to a notice of
forfeiture and he was denied his right to hire an expert
witness. These issues rise from a protective order freezing
certain assets owned by Gray because it appeared the assets were
derived from Gray’s criminal conduct. We find no error with the
court’s decision to continue the November 8 hearing, primarily
because the magistrate judge later found there was no conflict
of interest and the primary topic of the hearing was the
potential conflict. We further find Gray was not denied his
Sixth Amendment right to counsel. See Caplin & Drysdale,
Chartered v. United States, 491 U.S. 617, 630-31 (1989) (there
is no Sixth Amendment right for criminal defendants to use
forfeitable assets for the purpose of retaining counsel of their
choosing). With respect to the denial of an expert witness,
Gray’s appointed counsel never sought funds for an expert, thus
there was no error.
There was no abuse of discretion in the district
court’s decision to not admit a letter written by Gray’s
attorney to the IRS regarding the sale of his business. See
United States v. Bumpass, 60 F.3d 1099, 1102 (4th Cir. 1995)
(stating standard of review). The letter was clearly
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inadmissible hearsay as it was being offered for the truth of
the assertions. See Fed. R. Evid. 802.
We also find no abuse of discretion with respect to
jury instructions on willful blindness or the instructions for
the tax evading charges. See United States v. Abbas, 74 F.3d
506, 513 (4th Cir. 1996) (stating standard of review). The
Government’s evidence supported an inference that Gray was
willfully blind to the source and the legality of the funds he
was receiving from Steve Miller. We also note the court’s
instructions for Counts One through Eighteen followed the text
of the statute and focused on the fact that the allegation was
that Gray may have withheld the taxes from employees’ paychecks,
but did not forward the taxes to the proper federal agency.
With the exception of the amount of restitution, we
find no error or prejudice suffered by Gray with respect to the
district court’s findings at sentencing. In determining whether
a district court properly applied the advisory Guidelines,
including application of any sentencing enhancements, we review
the district court’s legal conclusions de novo and its factual
findings for clear error. United States v. Osborne, 514 F.3d
377, 387 (4th Cir. 2008). The district court’s credibility
determinations receive “great deference.” United States v.
Feurtado, 191 F.3d 420, 424 n. 2 (4th Cir. 1999). There was no
clear error in the court’s decision to apply a four-level
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enhancement under U.S. Sentencing Guidelines Manual
§ 2S1.1(b)(2)(C) (2002) upon finding Gray was in the business of
money laundering. We also find no clear error in the two-level
enhancement under USSG § 3C1.1 for obstruction of justice based
on Gray’s testimony at trial. The court properly found Gray
gave “false testimony concerning a material matter with the
willful intent to provide false testimony” under oath. United
States v. Dunnigan, 507 U.S. 87, 94-95 (1993). We further find
Gray was not prejudiced by the two-level enhancement for using
sophisticated means to conceal his fraud. We also find Gray was
not prejudiced because the court declined to rule upon his
objection to the amount of loss. A decision in his favor would
not have impacted the offense level.
We do, however, conclude there was error in the amount
of restitution ordered by the district court and the error was
not harmless. This issue was contested at sentencing and ruled
against Gray. As the Government now concedes, the amount of
restitution is allowed only “for the loss[es] caused by the
specific conduct that is the basis of the offense of
conviction.” Hughey v. United States, 495 U.S. 411, 413, 418
(1990); United States v. Newsome, 322 F.3d 328, 341 (4th Cir.
2003) (“[I]t is the ‘offense of conviction,’ not the ‘relevant
conduct,’ that must be the cause of losses attributable as
restitutionary liability.”). Because the difference in the
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amount of restitution is significant, we will vacate the
sentence and remand for the court to reenter a new order of
restitution. In all other respects, we find the sentence
reasonable. See Gall v. United States, 552 U.S. 38, __, 128 S.
Ct. 586, 597 (2007) (stating standard of review).
We have reviewed the sufficiency of the evidence and
find no meritorious issues in this regard. In accordance with
Anders, we have reviewed the entire record in this case and have
found no other meritorious issues. We therefore affirm Gray’s
convictions and vacate the sentence and remand for the limited
purpose of having the district court enter a new order of
restitution, limiting restitution to the amounts contained in
the offenses of convictions. We deny Gray’s motions for a copy
of the Grand Jury minutes and to have his counsel relieved.
This court requires counsel inform his client, in writing, of
the right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel's motion must state that
a copy thereof was served on the client. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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