                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4540



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ISMAIL SALEEM ABUHAWWAS,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.  Samuel G. Wilson, District
Judge. (7:05-cr-00056-sgw)


Submitted:   December 4, 2006             Decided:   February 1, 2007


Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John S. Edwards, LAW OFFICES OF JOHN S. EDWARDS, Roanoke, Virginia,
for Appellant.    John L. Brownlee, United States Attorney, C.
Patrick Hogeboom, III, Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Ismail     Saleem    Abuhawwas      appeals   his      convictions   and

sentence for eight counts of aiding or assisting the preparation of

a materially false tax return, in violation of 26 U.S.C. § 7206(2)

(2000),    and   one   count     of    willfully    making     a   material    false

statement to a federal government agent, in violation of 18 U.S.C.

§ 1001 (2000).     Abuhawwas raises three issues on appeal.              He argues

that:     (1) the evidence was insufficient to establish that he

willfully filed false employer quarterly tax forms; (2) there was

insufficient     evidence      to     establish    that   he   willfully      made    a

materially false statement to an agent of the Federal Bureau of

Investigation; and (3) the district court miscalculated the tax

loss for purposes of determining the Sentencing Guideline range.

Finding no error, we affirm.

            We review the district court’s denial of a motion for

judgment of acquittal de novo.              United States v. United Med. &

Surgical Supply Corp., 989 F.2d 1390, 1401 (4th Cir. 1993).                      The

standard of review for a denial of a motion for judgment of

acquittal is “whether there is substantial evidence (direct or

circumstantial) which, when taken in the light most favorable to

the prosecution, would warrant a jury finding that the defendant

was     guilty   beyond   a     reasonable      doubt.”        United   States       v.

MacCloskey, 682 F.2d 468, 473 (4th Cir. 1982).                  In evaluating the

sufficiency of the evidence, we do not weigh the evidence or review


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the credibility of witnesses.          United States v. Wilson, 118 F.3d

228, 234 (4th Cir. 1997).          Where the evidence supports differing

reasonable interpretations, the jury decides which interpretation

to believe.     Id.   Furthermore, “[t]he Supreme Court has admonished

that we not examine evidence in a piecemeal fashion, but consider

it in cumulative context.”         United States v. Burgos, 94 F.3d 849,

863 (4th Cir. 1996) (en banc) (citations omitted).

            To obtain a conviction under § 7206(2), the Government

must prove that: (1) the defendant aided, assisted, or otherwise

caused the preparation and presentation of a return; (2) the return

was fraudulent or false as to a material matter; and (3) the act of

the defendant was willful. United States v. Aramony, 88 F.3d 1369,

1382 (4th Cir. 1996) (internal citations and quotations omitted).

Willfulness is defined as the voluntary and intentional violation

of a known legal duty.       Cheek v. United States, 498 U.S. 192, 201

(1991).

            The evidence in this case demonstrated that Abuhawwas

hired a number of employees who did not have social security

numbers   and   who   were   not   paid   through   the   normal   course    of

business, but rather were placed on “Ismail’s payroll.”                While

Abuhawwas   contends     that   the   reason   these   employees   were     not

reported on the quarterly 941 tax returns is simply that his

payroll service could not process them without social security

numbers, this fact does not absolve him of responsibility to report


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these payments to the Internal Revenue Service.                   The evidence thus

established that Abuhawwas was directly involved in hiring a subset

of employees whose income was not reported to the IRS.                       Although

Abuhawwas claims that he was a “hands-off” owner who left tax

matters to his accountant, his repeated failure to provide his

accountant with necessary documentation provides ample evidence of

“willfulness.”

            Abuhawwas also challenges the sufficiency of the evidence

supporting his conviction for willfully making a material false

statement to a federal government agent.               To prove a violation of

18 U.S.C. § 1001, the Government must establish that: (1) the

defendant made a false statement to a governmental agency or

concealed a fact from it, (2) the defendant acted “knowingly and

willfully,” and (3) the false statement or concealed fact was

material to a matter within the jurisdiction of the agency. United

States v. Arch Trading Co., 987 F.2d 1087, 1095 (4th Cir. 1993)

(internal citations omitted).            A material fact about a matter

within the jurisdiction of an agency is one that has a “natural

tendency to influence agency action or is capable of influencing

agency action.”      Id.

            According      to   the    testimony    of      FBI     Agent    Buckley,

Abuhawwas   made    the    statements    at    issue     in   the    course     of   an

investigation by the FBI and the Immigration and Naturalization

Service   into     possible     visa   violations      by     one    of     Abuhawwas’


                                       - 4 -
employees, Mohammed Abudan. Abuhawwas told Buckley that Abudan was

a contract employee who received a 1099 tax form at the end of the

year and that appropriate withholdings were made from his pay. The

Government established at trial that this statement was false

because Abudan did not receive a 1099 tax form nor were any

withholdings made from his pay.

          Although Abuhawwas claims to have been confused about

these tax-related matters when he spoke to Buckley, when viewing

the evidence in the light most favorable to the Government, the

jury was entitled to conclude that Abuhawwas’ statements that

Abudan and other contract employees were being properly reported to

the IRS were knowingly and willfully false.               Further, we conclude

that these statements were material to the FBI’s legitimate law

enforcement activities.

          Finally,        Abuhawwas    contends    that   the    district    court

miscalculated      the    tax   loss   for     purposes   of    determining    the

Sentencing Guideline range.            When reviewing the district court’s

application   of    the    Sentencing     Guidelines,     this    court   reviews

findings of fact for clear error and questions of law de novo.

United States v. Green, 436 F.3d 449, 456 (4th Cir.), cert. denied,

126 S. Ct. 2309 (2006).         Determinations as to sentencing factors

must be supported by a preponderance of the evidence.                       United

States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005).                 According to

Application Note 1 to U.S. Sentencing Guidelines Manual § 2T1.1


                                       - 5 -
(2005),* “when indirect methods of proof are used, the amount of

the tax loss may be uncertain.”        In these cases, “the guidelines

contemplate that the court will simply make a reasonable estimate

based on the available facts.”         Id.; see also United States v.

Bryant, 128 F.3d 74, 75-76 (2d Cir. 1997) (district court may

estimate amount of tax loss in § 7206(2) case).

            At trial, IRS Special Agent Vance testified at length

about the methodology used to determine the amount of tax loss.

According to the “percentage method” routinely employed by the IRS

to compute what should have been withheld by an employer for

federal income tax, 27.5% is applied to the total amount of

unreported wages paid to employees.        The calculation assumes the

employees are “single” with no exemptions.               Abuhawwas did not

present any alternative testimony as to how this loss should be

calculated, and does not provide any support on appeal for his

proposition that tax loss calculations must include the employees’

possible dependants, deductions, or the Earned Income Tax Credit.

Therefore,   we   find   that   the   district   court    did   not   err    in

calculating the tax loss for purposes of determining Abuhawwas’

base offense level.

            Accordingly,   we    affirm    Abuhawwas’      conviction       and

sentence.    We dispense with oral argument because the facts and


     *
      Application Note 1 to § 2T1.1 is incorporated into
Application Note 1 to § 2T1.4, which is the guideline applicable to
Counts 1-8.

                                  - 6 -
legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                                         AFFIRMED




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