                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 07-4103


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

JOHN ALVIS JACKSON, JR.,

                  Defendant – Appellant.



                               No. 07-4094


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

LARRY ANDREW CAREY,

                  Defendant – Appellant.



     On Remand from the Supreme Court of the United States.
                       (S. Ct. No. 08-263)


Submitted:    March 27, 2009                 Decided:   July 1, 2009


Before WILLIAMS, Chief Judge, and MOTZ and KING, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Anthony F. Anderson, Melissa W. Friedman, ANDERSON & FRIEDMAN,
Roanoke, Virginia, for Appellant John Alvis Jackson, Jr.; Joseph
A. Sanzone, SANZONE & BAKER, P.C., Lynchburg, Virginia, for
Appellant Larry Andrew Carey.    John L. Brownlee, United States
Attorney, Jennie L. M. Waering, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke,
Virginia; Thomas E. Booth, Amanda L. Riedel, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

      This case is on remand from the Supreme Court of the United

States, see Jackson v. United States, 129 S. Ct. 1307 (2009),

which vacated our decision in United States v. Jackson, 524 F.3d

532 (4th Cir. 2008).        In that decision, we affirmed, inter alia,

the   defendants’     convictions       on   two    counts        of   theft    from   a

pension plan covered by the Employee Retirement Income Security

Act of 1974 (“ERISA”), in contravention of 18 U.S.C. § 664 (the

“ERISA theft offenses”).              Essential to our affirmance of the

convictions    on    the   ERISA   theft     offenses,       we    agreed      with   the

district court and the government that unpaid employer ERISA

pension plan contributions constitute “assets” of the plan.

      The defendants filed a petition for writ of certiorari in

the Supreme Court, and the Court requested a response from the

government.      In the government’s brief, the Solicitor General

confessed error in our decision with respect to the ERISA theft

offenses, explaining that, “[a]lthough the government argued in

the courts below that unpaid employer contributions are plan

assets, the government now agrees with petitioners [that such

unpaid contributions are not assets of an ERISA plan].”                           Brief

for the United States at 9-10, Jackson v. United States, 129 S.

Ct. 1307 (2009) (No. 08-263).            The Court granted the defendants’

petition   for      writ   of   certiorari      and,   on     the      basis    of    the

government’s     confession      of    error,      vacated    our      decision       and

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remanded the case “for further consideration in light of the

position   asserted    by   the    Solicitor   General   in   his    brief.”

Jackson, 129 S. Ct. at 1307.

     As explained below, we vacate the defendants’ convictions

on the ERISA theft offenses, as well as their sentences, and

remand to the district court so that it may consider in the

first instance the government’s new position and its confession

of   error.    We     affirm,     however,   the   defendants’      remaining

convictions.



                                     I.

     The defendants, John Alvis Jackson, Jr. and Larry Andrew

Carey, were prosecuted in the Western District of Virginia on

multiple fraud and theft offenses.             In addition to the ERISA

theft offenses, the defendants were convicted by a jury in March

2006 of the following:

     ●     Two counts of bank fraud, in contravention of 18
           U.S.C. § 1344 (the “bank fraud offenses”);

     ●     Five counts of wire fraud, in violation of 18
           U.S.C. § 1343 (the “wire fraud offenses”);

     ●     A single count of making false statements in
           ERISA-mandated documents, in contravention of 18
           U.S.C.   § 1027  (the   “ERISA  false   statement
           offense”); and

     ●     A single count of theft from a health care
           benefit program, in violation of 18 U.S.C. § 669.



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Jackson     was        also    convicted       of   conspiracy      to   commit      various

federal offenses, in violation of 18 U.S.C. § 371.

      The      district        court     sentenced       the   defendants     in     January

2007.       For    purposes       of    the    Sentencing      Guidelines,         the   court

grouped all of each defendant’s offenses, including the ERISA

theft offenses, resulting in advisory Guidelines ranges of 108

to 135 months for Jackson and 87 to 108 months for Carey.                                These

ranges were predicated, in part, on offense level increases for

causing a loss exceeding $10 million (including the loss amount

attributable to the ERISA theft offenses); for jeopardizing the

safety and soundness of the pension plan; and for embezzling,

while acting as a fiduciary, from the pension and health care

benefit plans.            The court sentenced Jackson to 108 months and

Carey to 87 months, at the bottom of their respective advisory

Guidelines ranges.

      On appeal, the defendants contested their convictions on

the   ERISA       theft       offenses    (Counts     Eleven     and     Twelve)     on    the

ground, inter alia, that unpaid employer contributions are not

assets    of      an    ERISA    plan     so   as   to    subject    them     to    criminal

liability under 18 U.S.C. § 664.                    The defendants also challenged

the sufficiency of the evidence in support of certain of their

other     convictions.                 More     specifically,          both    defendants

challenged the evidence on a bank fraud offense (Count Two);

Jackson challenged the evidence on the other bank fraud offense

                                                5
(Count One), as well as on each of the wire fraud offenses

(Counts Three through Seven); and Carey challenged the evidence

on the ERISA false statement offense (Count Ten).                   Finally, the

defendants     raised    numerous      contentions    of    sentencing     error,

including the contention that, because their convictions on the

ERISA theft offenses were improper, so were the increases in

their Sentencing Guidelines offense levels for jeopardizing the

safety and soundness of the pension plan.                  We rejected all of

the defendants’ arguments and, thus, affirmed their convictions

and sentences.        See United States v. Jackson, 524 F.3d 532 (4th

Cir. 2008).



                                        II.

                                        A.

        The   government,     having    now    decided     that    it   erred    in

pursuing the ERISA theft offenses and that we erred in affirming

those convictions, confessed error in the Supreme Court.                        See

Young v. United States, 315 U.S. 257, 258 (1942) (recognizing

that “[t]he public trust reposed in the law enforcement officers

of the Government requires that they be quick to confess error

when, in their opinion, a miscarriage of justice may result from

their     remaining     silent”).        Nevertheless,       the    government’s

“confession     does    not   relieve   [us]   of    the   performance    of    the

judicial function.”         Id.   Although “[t]he considered judgment of

                                         6
the [government] that reversible error has been committed is

entitled to great weight, . . . our judicial obligations compel

us to examine independently the errors confessed.”                         Id. at 258-

59.

        The   government’s         confession      of    error      implicates      the

propriety not only of the defendants’ convictions on the ERISA

theft    offenses,       but   also   of   their      sentences.       Because      the

district court determined, as did we, that — contrary to the

position now being espoused by the government — unpaid employer

contributions constitute ERISA plan assets, we deem it prudent

to remand so that the district court may consider in the first

instance the government’s confession of error.                      Accordingly, we

vacate the defendants’ convictions on the ERISA theft offenses,

as    well    as   their    sentences,     and   remand       for   such    other   and

further proceedings as may be appropriate.                    Cf. United States v.

Matthews (In re Matthews), 395 F.3d 477, 483 (4th Cir. 2005)

(remanding for district court to consider in first instance new

theory raised by government on appeal).

                                           B.

        As for the defendants’ remaining convictions, we stand by

our   rejection     of     their   challenges    to     the    sufficiency     of   the

evidence on certain specified counts.                   In so doing, we note our

ongoing agreement with the district court’s analysis in denying

the defendants’ Federal Rule of Criminal Procedure 29 motions

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for judgments of acquittal on those counts.                        See United States

v.    Jackson,    No.      6:04-cr-70118      (W.D.      Va.    June    7,   2006).      We

further observe that the government’s confession of error with

respect     to   the       ERISA   theft    offenses      does    not    implicate     the

propriety of the other challenged convictions.                          Thus, we affirm

the defendants’ convictions except on the ERISA theft offenses.



                                            III.

       Pursuant       to    the    foregoing,       we    vacate       the   defendants’

convictions      on     the    ERISA    theft      offenses,      as    well   as     their

sentences, and remand for such other and further proceedings as

may    be    appropriate.              We    affirm       the     defendants’         other

convictions.

                                                                   AFFIRMED IN PART,
                                                                    VACATED IN PART,
                                                                        AND REMANDED




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