United States v. Jackson ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4787
MELVIN E. JACKSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-97-136)
Submitted: June 16, 1997
Decided: July 28, 1998
Before WILLIAMS and MICHAEL, Circuit Judges, and
HALL, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Gregory B. English, ENGLISH & SMITH, Alexandria, Virginia, for
Appellant. Helen F. Fahey, United States Attorney, Charles P. Rosen-
berg, Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Melvin E. Jackson pled guilty to all counts in a thirteen count
indictment including six counts of conspiracy to file false claims for
tax refunds in violation of 18 U.S.C. § 286 (1994), and seven counts
of filing false claims for refunds in violation of 18 U.S.C. § 287(1994). Jackson alleges that the district court erred during sentencing
by violating his due process rights when it failed to hold an evidenti-
ary hearing. He also contests the four-level increase in his base
offense level under U.S. Sentencing Guidelines Manual § 1B1.3
(1997). Finding no error, we affirm.
Jackson is an inmate at the Lorton Correctional Facility. Jackson
and other Lorton inmates schemed to file false income tax returns
from prison. Each 1040 tax form was completed with identical infor-
mation for each category resulting in an identical amount of refund
claimed. All of the returns were false. None of the inmates filing the
form had the income claimed or were entitled to the refund. The Inter-
nal Revenue Service (IRS) received twenty-eight of the fraudulent
returns from Lorton inmates. Jackson's distinctive handwriting
appeared on some portion of nearly every return and/or envelope used
to mail the return.
The IRS issued twenty-eight refund checks in the amount of $722
to the inmates at either their prison address or an outside address pro-
vided on the return. Jackson received payment from the inmates rang-
ing from $100 to $200 for his assistance in preparing and filing the
returns. A search of Jackson's locker pursuant to a warrant produced
evidence linking Jackson to the returns; the evidence included the
names, addresses, and social security numbers of the inmates
involved in the tax fraud scheme. Based on the filing of twenty-eight
returns, the district court held Jackson responsible for a loss to the
IRS of $20,216, the sum of the twenty-eight refunds of $722 each.
Jackson did not challenge the amount.
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Jackson first argues that the trial court denied him due process
when it refused to permit him the opportunity to participate in an evi-
dentiary hearing to dispute the facts related to his role in the offense
as an organizer or leader under USSG § 3B1.1(a). The record does not
reflect that Jackson specifically requested such a hearing.* However,
Jackson contends that he was entitled to an evidentiary hearing as a
matter of right.
Under USSG § 6A1.3, an evidentiary hearing may be utilized if
there are disputed issues regarding sentencing; however, a hearing is
not required. The process for resolving disputes is left to the discre-
tion of the district court. See USSG § 6A1.3, comment. (noting that
the parties should have an opportunity to present evidence on disputed
factors which are important to sentencing, but "[w]ritten statements
of counsel or affidavits of witnesses may be adequate under many cir-
cumstances"). Under Fed. R. Crim. P. 32(c)(1), a court may in its dis-
cretion allow parties to introduce evidence regarding objections to the
Presentence Investigation Report (PSR).
Jackson relies upon United States v. Fatico, 603 F.2d 1053 (2d Cir.
1979), to support his argument that if issues are disputed at sentencing
an evidentiary hearing is required. Fatico does not require such a
hearing. Fatico states that an evidentiary hearing is sometimes a reli-
able way to resolve disputed issues. See Fatico , 603 F.2d at 1057-58
n.9. Further, this circuit has never held that an evidentiary hearing is
required to resolve disputed matters at sentencing. Only when the reli-
ability of evidence is an issue has this court held that an evidentiary
hearing is necessary. See United States v. Bowman, 926 F.2d 380, 381
(4th Cir. 1991). Because our review of the record does not reveal that
an evidentiary hearing was necessary to resolve a factual dispute, this
claim lacks merit.
Jackson makes two arguments in passing about the sufficiency of
the evidence regarding his role in the offense. He argues that the dis-
trict court could not impose the sentencing enhancement because it
could not have found by a preponderance of the evidence that Jackson
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*Indeed, when asked whether he wanted to be heard on Jackson's role
in the offense, counsel stated, "Your Honor, I submit on the pleadings."
(J.A. 119).
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was a leader or organizer because the evidence was hearsay, and the
defendants were not cross-examined during an evidentiary hearing.
Reliable hearsay evidence may be considered for sentencing pur-
poses. See United States v. Jones, 31 F.3d 1304, 1316 (4th Cir. 1994).
In addition, we have held that it is proper for the PSR to form the fac-
tual basis for a sentencing judge's findings. See United States v.
Terry, 916 F.2d 157, 160 (4th Cir. 1990) (citation omitted). Finally,
Jackson filed written objections to the PSR which the district court
considered. The court gave Jackson the opportunity to be heard on his
written objections to the role in the offense enhancement and he
waived the opportunity to be heard. Therefore, the district court did
not err in relying upon the PSR and the written objections.
Finally, to the extent that Jackson attempts to challenge the suffi-
ciency of the evidence based upon his written objections, his claim is
without merit. Whether a role in the offense enhancement is proper
is a factual question, and the court's determination will be disturbed
on appeal only if it is clearly erroneous. See United States v. Borden,
10 F.3d 1058, 1063 (4th Cir. 1993). Jackson's handwriting was on
portions of most of the twenty-eight returns. Jackson admitted to the
loss associated with the twenty-eight returns, thereby acknowledging
his connection to a scheme involving twenty-eight individuals. In
addition he pleaded guilty to acting in concert with six other inmates.
Application of the enhancement for criminal activity involving five or
more participants was not error. See USSG§ 3B1.1(a).
We therefore affirm the district court 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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