                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4406


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

SAMUEL ANDREW GRAY, SR.,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:05-cr-00888-TLW-1)


Submitted:    June 18, 2009                 Decided:   July 10, 2009


Before MICHAEL, MOTZ, and KING, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.


Michael W. Chesser, Aiken, South Carolina, for Appellant. John
DiCicco, Acting Assistant Attorney General, Columbia, South
Carolina, Alan Hechtkopf, Elissa Hart-Mahan, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Samuel     Andrew      Gray,       Sr.    appeals     from     a    judgment

entered   after    a   trial    convicting           him   of   eighteen       counts    of

failing to pay over to the Internal Revenue Service and the

United States income tax, social security and Medicare taxes,

withheld from Appellant’s employees’ wages, in violation of 26

U.S.C. § 7202 (2006) and 18 U.S.C. § 2 (2006), one count of

conspiracy to commit fraud and to defraud the United States, in

violation of 18 U.S.C. § 371 (2006), three counts of fraud, in

violation    of   18   U.S.C.   §    2,    18    U.S.C.A.       § 1341    (West    Supp.

2009), three counts of receipt of stolen funds, in violation of

18 U.S.C. § 2315 (2006), and three counts of money laundering,

in violation of 18 U.S.C. §§ 2, 1957 (2006).                       Counsel filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),

certifying there were no meritorious arguments for appeal, but

raises for the court’s consideration whether the district court

erred   enhancing      Gray’s   offense         level      by   four     levels    after

finding Gray was in the business of laundering money.                               Gray

filed a pro se supplemental brief raising several issues.                               The

Government    filed    a   brief    addressing         Gray’s     issues.         Because

there was an error with the order of restitution that was not

harmless, we affirm the convictions, but vacate the sentence and

remand for resentencing.



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             Gray argues the district court erred continuing with a

hearing     after       retained            counsel       identified       a   conflict        of

interest,    that     he      was      denied       his    Sixth     Amendment       right     to

counsel     because     his       funds       were    frozen       due    to   a   notice      of

forfeiture      and     he    was      denied       his     right    to    hire    an     expert

witness.      These issues rise from a protective order freezing

certain assets owned by Gray because it appeared the assets were

derived from Gray’s criminal conduct.                        We find no error with the

court’s decision to continue the November 8 hearing, primarily

because the magistrate judge later found there was no conflict

of   interest     and    the        primary      topic       of   the     hearing       was   the

potential conflict.               We further find Gray was not denied his

Sixth     Amendment     right          to    counsel.        See     Caplin    &     Drysdale,

Chartered v. United States, 491 U.S. 617, 630-31 (1989) (there

is   no   Sixth    Amendment           right    for       criminal       defendants      to   use

forfeitable assets for the purpose of retaining counsel of their

choosing).        With respect to the denial of an expert witness,

Gray’s appointed counsel never sought funds for an expert, thus

there was no error.

             There      was       no   abuse     of       discretion      in   the      district

court’s     decision         to     not     admit     a    letter    written       by    Gray’s

attorney to the IRS regarding the sale of his business.                                       See

United States v. Bumpass, 60 F.3d 1099, 1102 (4th Cir. 1995)

(stating     standard          of      review).             The     letter     was       clearly

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inadmissible hearsay as it was being offered for the truth of

the assertions.          See Fed. R. Evid. 802.

              We also find no abuse of discretion with respect to

jury instructions on willful blindness or the instructions for

the tax evading charges.               See United States v. Abbas, 74 F.3d

506, 513 (4th Cir. 1996) (stating standard of review).                                   The

Government’s       evidence       supported      an   inference       that       Gray    was

willfully blind to the source and the legality of the funds he

was    receiving     from      Steve   Miller.        We   also    note        the   court’s

instructions for Counts One through Eighteen followed the text

of the statute and focused on the fact that the allegation was

that Gray may have withheld the taxes from employees’ paychecks,

but did not forward the taxes to the proper federal agency.

              With the exception of the amount of restitution, we

find no error or prejudice suffered by Gray with respect to the

district court’s findings at sentencing.                    In determining whether

a   district     court      properly      applied     the       advisory       Guidelines,

including application of any sentencing enhancements, we review

the district court’s legal conclusions de novo and its factual

findings for clear error.                United States v. Osborne, 514 F.3d

377,    387   (4th      Cir.    2008).    The    district        court’s       credibility

determinations          receive   “great    deference.”            United       States    v.

Feurtado, 191 F.3d 420, 424 n. 2 (4th Cir. 1999).                          There was no

clear    error     in    the    court’s    decision        to    apply     a    four-level

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enhancement          under      U.S.        Sentencing            Guidelines      Manual

§ 2S1.1(b)(2)(C) (2002) upon finding Gray was in the business of

money laundering.        We also find no clear error in the two-level

enhancement under USSG § 3C1.1 for obstruction of justice based

on Gray’s testimony at trial.                   The court properly found               Gray

gave   “false   testimony           concerning     a    material     matter     with   the

willful intent to provide false testimony” under oath.                            United

States v. Dunnigan, 507 U.S. 87, 94-95 (1993).                          We further find

Gray was not prejudiced by the two-level enhancement for using

sophisticated means to conceal his fraud.                     We also find Gray was

not    prejudiced     because        the   court    declined       to    rule   upon   his

objection to the amount of loss.                   A decision in his favor would

not have impacted the offense level.

            We do, however, conclude there was error in the amount

of restitution ordered by the district court and the error was

not harmless.        This issue was contested at sentencing and ruled

against Gray.         As the Government now concedes, the amount of

restitution     is    allowed       only   “for     the     loss[es]     caused   by   the

specific    conduct          that     is   the      basis     of     the    offense     of

conviction.”         Hughey v. United States, 495 U.S. 411, 413, 418

(1990); United States v. Newsome, 322 F.3d 328, 341 (4th Cir.

2003) (“[I]t is the ‘offense of conviction,’ not the ‘relevant

conduct,’    that     must     be    the   cause       of   losses      attributable     as

restitutionary        liability.”).          Because        the    difference     in   the

                                            5
amount    of    restitution      is     significant,      we    will       vacate       the

sentence and remand for the court to reenter a new order of

restitution.        In   all    other    respects,      we     find       the   sentence

reasonable.      See Gall v. United States, 552 U.S. 38, __, 128 S.

Ct. 586, 597 (2007) (stating standard of review).

            We have reviewed the sufficiency of the evidence and

find no meritorious issues in this regard.                     In accordance with

Anders, we have reviewed the entire record in this case and have

found no other meritorious issues.                We therefore affirm Gray’s

convictions and vacate the sentence and remand for the limited

purpose   of    having    the    district      court    enter    a    new       order   of

restitution, limiting restitution to the amounts contained in

the offenses of convictions.             We deny Gray’s motions for a copy

of the Grand Jury minutes and to have his counsel relieved.

This court requires counsel inform his client, in writing, of

the right to petition the Supreme Court of the United States for

further   review.        If    the    client   requests       that    a    petition      be

filed,    but   counsel       believes    that   such     a    petition         would    be

frivolous, then counsel may move in this court for leave to

withdraw from representation.             Counsel's motion must state that

a copy thereof was served on the client. We dispense with oral

argument because the facts and legal contentions are adequately




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presented in the materials before the court and argument would

not aid the decisional process.

                                                 AFFIRMED IN PART;
                                      VACATED AND REMANDED IN PART




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