UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4556

ORLANDOUS L. MAYE,
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-99-104)

Submitted: February 15, 2000

Decided: February 28, 2000

Before TRAXLER and KING, Circuit Judges,
and HAMILTON, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Joseph N. Bowman, Alexandria, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, G. David Hackney, Assistant United
States Attorney, Alexandria, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Orlandous L. Maye was convicted by a jury of assisting in the
preparation of false tax returns, 26 U.S.C. § 7206(2) (1994) (Counts
1-13), and witness tampering, 18 U.S.C.A. § 1512(b)(1) (West Supp.
1999) (Count 18). He pled guilty to submitting false personal tax
returns, 26 U.S.C. § 7206(1) (1994) (Counts 15-17).* The district
court sentenced Maye to a term of seventy-one months imprisonment.
Maye appeals his § 7206(2) convictions and his sentence. He alleges
that the district court clearly erred in determining the tax loss and
departed upward without explanation in sentencing him for witness
tampering. He also contends that the evidence was insufficient to sup-
port his convictions under § 7206(2). We affirm.

Maye worked as a correctional officer at Lorton Reformatory from
1991 to 1998. In 1993, he started a tax preparation business. Between
1993 and 1995, he prepared 600 tax returns, mostly for correctional
officers and other personnel at Lorton. He did not report the income
he received for preparing tax returns and, in all but one case, did not
sign the tax returns he prepared for others. After the Federal Bureau
of Investigation and the Internal Revenue Service investigated his
activities, Maye was charged with submitting false tax returns for
himself, assisting in the preparation of false tax returns for others, and
witness tampering. Maye pled guilty to submitting tax returns for
himself that omitted taxable income and overstated exemptions,
deductions, and expenses for the years 1993, 1994, and 1995. He
went to trial on the remaining charges.

During the investigation, federal agents examined fifty-one tax
returns prepared by Maye for seventeen taxpayers, all of which made
fraudulent claims for Schedule A deductions resulting in large
refunds. The taxpayers told the agents that they knew nothing about
the claimed deductions and had not provided documentation for them
to Maye. Four of the taxpayers who had been interviewed testified at
_________________________________________________________________
*Count 14 was dismissed on the government's motion when Maye
entered his guilty plea. Count 19 was dismissed by the district court after
the jury was unable to reach a verdict on that count.

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Maye's trial. Another testified that Maye called him before his grand
jury testimony and threatened to sue him or hurt him if trouble
resulted for Maye.

In sentencing Maye, the district court calculated the guideline
range by grouping all the counts in one group as closely-related
counts, see USSG § 3D1.2(c),(d), and estimated that the tax loss
resulting from Counts 1-13 was more than $2.5 million. The tax loss
was estimated by taking the average tax loss for the fifty-one returns
examined by the agents ($4176), multiplying that amount by 600, and
adding the loss from Maye's own tax returns ($21,054), for a total of
$2,505,600. With other enhancements, Counts 1-13 produced an
offense level of 25, which became the offense level for the whole
group of counts because it was higher than the offense levels for the
other counts. See USSG § 3D1.3.

Maye argues that the tax loss determined by the district court was
not proved by a preponderance of the evidence. However, Application
Note 1 to § 2T1.1 (incorporated into Application Note 1 to § 2T1.4,
the guideline applicable to Counts 1-13) provides that, "when indirect
methods of proof are used, the amount of the tax loss may be uncer-
tain." In such 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). We
find that the district court did not clearly err in multiplying the aver-
age known loss by 600 to obtain an estimate of the total tax loss.

Next, Maye asserts that the district court departed upward in sen-
tencing him to seventy-one months for Count 18. The guideline range
for that count would have been 15-21 months had Maye been con-
victed only of witness tampering. However, because he was convicted
of multiple counts, the combined offense level was used to determine
the guideline range for all counts of conviction. See USSG §§ 3D1.1-
1.5. The district court did not depart from the guideline range. Maye
also claims that, if Count 18 was properly grouped with the other
counts of conviction, the combined offense level should have been 17
rather than 25, because the tax loss was improperly determined by the
district court. This argument is without merit because, as explained
above, the district court did not clearly err in determining the tax loss.

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Finally, Maye contends that the evidence was insufficient to sup-
port his conviction on Counts 1-13 (assisting in preparation of false
tax returns). To prove a violation of § 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. See United States v. Aramony, 88 F.3d 1369, 1382 (4th Cir.
1996). A conviction must be sustained if, viewed in the light most
favorable to the government, substantial evidence supports it. See
Glasser v. United States, 315 U.S. 60, 80 (1942).

Maye contends that the government failed to prove that the tax
returns he prepared were false or fraudulent as to any material matter.
However, the indictment charged that Maye aided the taxpayers in
overstating exemptions, deductions, and expenses, resulting in an
understatement of taxable income and leading to refunds to which the
taxpayers were not entitled. (JA-I at 9). Because the false information
supplied by Maye decreased the tax liability and increased the refunds
of Maye's clients, the returns were false as to material matters. Con-
sequently, the convictions were supported by substantial evidence.

We therefore affirm the convictions and sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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