                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 09-5021


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

HINTON HUFF, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.      Henry Coke Morgan, Jr.,
Senior District Judge. (2:08-cr-00225-HCM-FBS-1)


Submitted:   July 14, 2010                 Decided:   July 28, 2010


Before KING, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


A. Aaron Aldridge, Lebanon, Ohio, for Appellant.         Neil H.
MacBride, United States Attorney, Alan M. Salsbury, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Following a three-day jury trial, Hinton Huff, Jr.,

was found guilty of twenty-nine counts of willfully aiding and

assisting in the preparation of false tax returns, in violation

of 26 U.S.C. § 7206(2) (2006).               Huff was sentenced to fifteen

months’ imprisonment.           For the reasons that follow, we affirm

the district court’s judgment.



              I.     Sufficiency of the Government’s Evidence

              Huff     first     asserts       the    Government       presented

insufficient evidence of his guilt, because it did not prove

that he acted with another culpable participant.                   This argument

fails under the express language of the statute of conviction,

which imputes criminal liability to a tax preparer who prepares

a false return, regardless of whether the taxpayer knows of or

consents to the falsity.           See 26 U.S.C. § 7206(2).            This was

precisely the case here.          To avoid this conclusion, Huff relies

on   United    States    v.    Searan,   259   F.3d   434   (6th    Cir.   2001).

However, the issue in Searan was whether an assistant to a tax

preparer is criminally liable under § 7206(2).                See Searan, 259

F.3d at 443-46.         Thus, the Searan court’s discussion of another

actor’s criminal liability is irrelevant given the facts of this

case.



                                         2
              Huff next argues the Government failed to prove that

he    acted    willfully,        because    the    Government       did    not   present

evidence of his motive.              We disagree.            Under United States v.

Pomponio, 429 U.S. 10, 12 (1976), a tax violation is “willful”

if it is “a voluntary, intentional violation of a known legal

duty,” and the Government need not prove “any motive other than

an intentional violation of” that duty.                          Huff further argues

that, because the Government did not prove a tax loss, it failed

to show that Huff acted willfully.                 In addition to being legally

irrelevant, this assertion is factually inaccurate, because an

IRS agent testified that the falsified returns resulted in an

aggregate tax loss of over $78,000.

              Finally, we reject Huff’s contention that there was

insufficient evidence to prove that he personally prepared the

tax    returns      that   were    the     subject      of   his   indictment.         The

evidence at trial established that, in a pre-trial interview

with    an    IRS      agent,     Huff     admitted      preparing        the    returns.

Moreover, each of the witnesses testified that Huff prepared

their   taxes;      the    tax    returns    were       signed     by   Huff;    and   two

defense witnesses testified that Huff was the sole tax preparer

in    the    office.       This    evidence       was   more     than   sufficient      to

support the jury’s verdicts.




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                       II.    Sufficiency of the Indictment

            Huff argues his convictions should be reversed because

the indictment failed to specify the criminal acts alleged or

the items on each return that were falsely claimed.                           Although a

criminal     defendant            may     challenge       the   sufficiency        of        his

indictment at any time, because Huff raises the issue for the

first time on appeal, we liberally construe the indictment, “and

every     intendment         is    then        indulged    in   support      of    .     .    .

sufficiency.”          United States v. Williams, 152 F.3d 294, 298 (4th

Cir. 1998) (alteration in original) (internal quotation marks

omitted).

            To withstand a vagueness challenge, an indictment must

“contain[]       the     elements        of     the   offense   charged      and       fairly

inform[]     a     defendant        of     the    charge    against    which       he    must

defend, . . . enabl[ing] him to plead an acquittal or conviction

in bar of future prosecutions for the same offense.”                                    United

States v. Smith, 441 F.3d 254, 260-61 (4th Cir. 2006) (internal

quotation        marks    omitted).             An    indictment   that   mirrors            the

language of the statutory charge and includes facts specific to

the     defendant’s       actions         is     constitutionally      adequate.             See

Hamling v. United States, 418 U.S. 87, 117 (1974).

            The indictment here satisfies these requirements.                                In

addition     to     mirroring           the    statutory    language    of    26       U.S.C.

§ 7206(2), the indictment also included a chart that delineated

                                                  4
the particular tax return that formed the basis for each count,

the “falsely claimed item” on that return and its corresponding

“falsely claimed amount,” the date the return was filed, and the

taxpayer for whom it was prepared.           The Government was under no

obligation    to    provide   a   line-by-line    recitation    of    all   the

falsifications within each allegedly falsified item. 1



                      III. Prosecutorial Misconduct

            Huff next argues his convictions should be reversed

because the Assistant United States Attorney (“AUSA”) improperly

vouched for the credibility of the Government’s witnesses, and

misstated the law pertaining to immunity agreements and the uses

of Tax Form Schedule C.           Because Huff did not object on these

bases at trial, this court’s review is for plain error.                     See

United States v. Baptiste, 596 F.3d 214, 226 (4th Cir. 2010).

To establish plain error, Huff must demonstrate there was error,

it   was   plain,   and   that    it   affected   his   substantial   rights.

United States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005).

Even if Huff satisfies this difficult burden, this court will

      1
       We also reject Huff’s contention that the indictment was
flawed because it did not particularize the date each return was
prepared. “Where a particular date is not a substantive element
of the crime charged, strict chronological specificity or
accuracy is not required.”     Smith, 441 F.3d at 261 (internal
quotation marks omitted). The particular date of the offense is
simply not an element of § 7206(2).



                                        5
not notice the error unless it “seriously affects the fairness,

integrity         or   public     reputation        of    judicial      proceedings.”

Puckett v. United States, 129 S. Ct. 1423, 1429 (2009) (internal

quotation marks and alteration omitted).

                 “Vouching    generally      occurs       when    the    prosecutor’s

actions are such that a jury could reasonably believe that the

prosecutor was indicating a personal belief in the credibility

of the witness.”             United States v. Johnson, 587 F.3d 625, 632

(4th       Cir.    2009)     (internal     quotation      marks    omitted),       cert.

denied, 130 S. Ct. 2128 (2010).                 We have carefully reviewed the

AUSA’s opening and closing statements and find nothing therein

constitutes        impermissible        vouching.        We   further   conclude     the

AUSA did not misstate the law relevant to immunity agreements or

the use of Tax Form Schedule C as relevant to this case.



                    IV.     Reasonableness of Huff’s Sentence

                 Post-Booker, 2   this      court     reviews      a    sentence     for

reasonableness, applying an abuse of discretion standard.                          Gall

v. United States, 552 U.S. 38, 51 (2007); see also United States

v. Layton, 564 F.3d 330, 335 (4th Cir.), cert. denied, 130 S.

Ct. 290 (2009).            This review requires appellate consideration of

both       the     procedural     and     substantive         reasonableness   of     a

       2
           United States v. Booker, 543 U.S. 220 (2005).



                                            6
sentence.       Gall, 552 U.S. at 51.                       In determining procedural

reasonableness, this court considers whether the district court

properly calculated the defendant’s advisory Guidelines range,

considered the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2010)

factors, analyzed any arguments presented by the parties, and

sufficiently explained the selected sentence.                           Gall, 552 U.S. at

51.     If the court finds “no significant procedural error,” it

next assesses the substantive reasonableness of the sentence,

taking     “‘into      account         the   totality          of     the     circumstances,

including      the     extent         of   any       variance       from    the     Guidelines

range.’”       United States v. Morace, 594 F.3d 340, 345-46 (4th

Cir. 2010) (quoting Gall, 552 U.S. at 51).

              Huff    first      asserts     the       district       court    violated         due

process by prohibiting his wife from making a statement prior to

the   court    pronouncing         sentence.           We    disagree.         The       district

court    allowed       Huff      to    present        whatever       evidence       he    deemed

appropriate,         and    Huff      availed        himself     of    this       opportunity,

calling one witness.             After hearing argument on sentencing, Huff

asked the court to permit his wife to make a statement.                                  At that

point,   evidence          was   closed,     and      we    hold     the    court    was     well

within   its    province         to    decline        Huff’s    request.           See     United

States v. Janati, 374 F.3d 263, 273 (4th Cir. 2004) (describing

the   district       court’s       discretion         in    managing        things       such   as



                                                 7
courtroom procedures and admission of evidence as “particularly

broad”).

               Huff   also    argues    the   district      court’s   failure     to

consider the § 3553(a) sentencing factors renders his sentence

procedurally and substantively unreasonable.                   Such a claim is

more appropriately considered as a challenge to the procedural

reasonableness of Huff’s sentence.                See United States v. Lynn,

592 F.3d 572, 575-76 (4th Cir. 2010).                    Counsel’s reliance on

several    §    3553(a)      sentencing   factors      to   support    a   downward

variance preserved this issue for appellate review.                   Id. at 578.

Accordingly, our review is for an abuse of discretion.                       Id. at

581.

               The district court did not abuse its discretion in

sentencing Huff.          In granting counsel’s request for a downward

variance, the district court expressly adopted the primary (and

strongest)      reason    counsel      advanced   to   support      the    variance.

Although we recognize that the court did not address, on the

record, each and every other reason set forth by counsel, we

conclude       this   does    not   render    Huff’s     sentence     procedurally

flawed.        See United States v. Boulware, 604 F.3d 832, 838-39

(4th Cir. 2010).

               We further conclude that Huff’s variance sentence was

substantively         reasonable.       Considering     the   totality      of   the

circumstances surrounding Huff’s crimes and his virtually non-

                                          8
existent criminal history, the district court properly exercised

its discretion to vary downward from the Guidelines range by

approximately    29%,      and    amply   justified      that    variance.       See

United States v. Seay, 553 F.3d 732, 742 (4th Cir.) (finding

variance sentence that was a 68% increase above the Guidelines

range reasonable, because the court had adequately explained the

reasons for the variance), cert. denied, 130 S. Ct. 127 (2009).



                V.     Ineffective Assistance of Counsel

          Finally,         Huff        asserts     his     attorney         provided

ineffective     representation          during    his     trial.       Unless     an

attorney’s ineffectiveness is conclusively apparent on the face

of the record, ineffective assistance claims are not generally

addressed on direct appeal.             United States v. Benton, 523 F.3d

424, 435 (4th Cir.), cert. denied, 129 S. Ct. 490 (2008); United

States   v.   Richardson,        195    F.3d     192,    198    (4th   Cir.    1999)

(providing standard and noting that ineffective assistance of

counsel claims generally should be raised by motion under 28

U.S.C.A. § 2255 (West Supp. 2010)).                  The record in this case

falls far short of this exacting standard.



                                 VI.    Conclusion

          For        the    foregoing         reasons,     we      affirm     Huff’s

convictions and sentence.           Further, we deny as moot the pending

                                          9
motions to expedite review and for bond pending appeal.              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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