                               UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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




                                   - 2 -
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


                                 - 3 -
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.”




                                 - 4 -
            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,


                                    - 5 -
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).




                                       - 6 -
          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




                              - 7 -
