                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-5051


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

           v.

ISAAC AHANMISI,

                  Defendant – Appellant.


Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Alexander Williams, Jr., District
Judge. (8:04-cr-00535-AW-1)


Argued:   March 24, 2009                    Decided:   April 29, 2009


Before NIEMEYER and SHEDD, Circuit Judges, and Thomas D.
SCHROEDER, United States District Judge for the Middle District
of North Carolina, sitting by designation.


Affirmed in part; vacated and remanded in part by unpublished
opinion. Judge Shedd wrote the opinion, in which Judge Niemeyer
and Judge Schroeder joined.


ARGUED: Robert Charles Bonsib, MARCUS & BONSIB, Greenbelt,
Maryland, for Appellant.     Gina Simms, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee.     ON BRIEF:
Rod J. Rosenstein, United States Attorney, Baltimore, Maryland,
Stacy Dawson Belf, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
SHEDD, Circuit Judge:

     Isaac      Ahanmisi          was    indicted   on    23    counts    of   aiding   and

assisting in the preparation of false tax returns in violation

of 26 U.S.C. § 7206(2) and two counts of witness tampering in

violation of 18 U.S.C. § 1512(b)(3).                           Ahanmisi was ultimately

convicted       of     19     counts       of   aiding         and    assisting   in    the

preparation of false tax returns.                   He now appeals his conviction

and sentence.          For the following reasons, we affirm Ahanmisi’s

conviction, 1        vacate his sentence, and remand to the district

court for a new sentencing hearing.

     Ahanmisi owned and operated a company that prepared tax

returns.     At sentencing, the evidence established that Ahanmisi

electronically filed 1,729 tax returns during the relevant time

period.     The government represented to the court that the IRS

analyzed the 1,729 returns with a computer program that flagged

returns    if    they       met    two    criteria:      (a)    the   person’s    adjusted

gross income was at least $15,000 and (b) at least 35 percent of

the adjusted gross income consisted of Schedule A deductions. 2

J.A. 555-56.          Using this program, the IRS selected 619 returns



     1
       We have examined the issues raised by Ahanmisi concerning
his conviction and find them to be without merit.
     2
        At oral argument, it was clear that this meant the
return’s Schedule A deductions had to amount to at least 35% of
adjusted gross income.



                                                2
for   further       examination,     ultimately          auditing      512   of     those

returns.      Of that group, 164 of the audited tax payers were

contacted     and    ultimately      agreed         to   pay    an     additional     IRS

assessment.      The government calculated the average tax loss of

those 164 returns, along with the 29 returns of the witnesses

who testified at trial, and multiplied that average loss by the

1,729 returns electronically filed by Ahanmisi to estimate the

aggregate    tax     loss   for    sentencing        purposes.         The   government

estimated the aggregate tax loss to be between $2,500,000 and

$7,000,000 dollars.

      The district court accepted the government’s estimate of

Ahanmisi’s    aggregate      tax    loss.         As     a   result,    it   determined

Ahanmisi’s base offense level to be 24.                      U.S.S.G. § 2T4.1.        The

court also imposed a two-level enhancement for obstruction of

justice pursuant to U.S.S.G. § 3C1.1, yielding an offense level

of 28 and a Guidelines range of 78-97 months.                        Ahanmisi received

a 78-month sentence, followed by one year of supervised release

on each count, and a special assessment in the amount of $1,900.

This appeal followed.

      Ahanmisi       contends      that     the      district        court   erred     in

accepting the government’s estimate of his aggregate tax loss.

Specifically,       he   contends    that      it      was   unreasonable      for    the

government to calculate the average tax loss based on a non-

random sample of returns.                 The Sentencing Guidelines provide

                                           3
that the court “will simply make a reasonable estimate [of the

tax loss] based on the available facts.”                   Federal Sentencing

Guidelines Manual, § 2T1.1 Application Note 1.                    The government

must establish loss by a preponderance of the evidence.                   United

States v. Harris, 882 F.2d 902, 907 (4th Cir. 1989).

      It   is   undisputed     that   the     government   used    a   non-random

sample to calculate the average tax loss per return. 3                   Because

the sample was not randomly selected, we cannot conclude that

the   average     tax   loss    figure       of   the   selected    returns   was

representative of the entire universe of 1,729 returns filed by

Ahanmisi. 4     Further, the criteria used by the government may have

skewed the average tax loss toward a larger average loss per

return than a random sample would have produced.                       This non-

representative and potentially skewed average tax loss figure

does not provide a “reasonable estimate based on the available

facts.”    Guidelines, § 2T1.1 Application Note 1.

      Consequently, we find that the government did not meet its

burden of establishing a reasonable estimate of the aggregate



      3
       The government’s lawyer proffered at trial and reiterated
on appeal that the initial sample pool of 619 returns was not
chosen randomly.
      4
       The sample’s      non-randomness distinguishes this case from
cases like United       States v. Maye, 205 F.3d 1335 (4th Cir.
2000)(unpublished),     where we upheld a tax loss estimate that was
extrapolated from a     random selection of tax returns.



                                         4
tax loss.   We therefore vacate Ahanmisi’s sentence and remand

for resentencing.

                                              AFFIRMED IN PART;
                                   VACATED AND REMANDED IN PART




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