                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-5189


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

HENRY OMOROGIEVA OMOZEE,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:08-cr-00140-LMB-1)


Submitted:    December 10, 2009             Decided:   January 4, 2010


Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Craig W. Sampson, BARNES & DIEHL, P.C., Chesterfield, Virginia,
for Appellant. Dana J. Boente, Acting United States Attorney,
Marla B. Tusk, Assistant United States Attorney, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Henry Omorogieva Omozee appeals his twenty-seven month

prison sentence after a jury convicted him of three counts of

making   and        subscribing     false     tax    returns      in    violation        of   26

U.S.C.    § 7206(1)        (2006).       On       appeal,    he     contends        that      the

district court procedurally erred in calculating the amount of

tax    loss     and      the    resulting     base    offense       level        under     U.S.

Sentencing Guidelines Manual § 2T1.1 (2007).                        We affirm.

               We     review      Omozee’s     sentence        under        a    deferential

abuse-of-discretion standard.                 See Gall v. United States, 552

U.S. 38, 51 (2007).              The first step in this review requires us

to    ensure    that      the     district    court    committed            no   significant

procedural error, such as improperly calculating the guideline

range.     United States v. Carter, 564 F.3d 325, 328 (4th Cir.

2009).        In assessing a sentencing court’s application of the

guidelines,         we   review    its   legal      conclusions        de    novo    and      its

factual findings for clear error.                    United States v. Allen, 446

F.3d 522, 527 (4th Cir. 2006).                We then consider the substantive

reasonableness of the sentence imposed, taking into account the

totality of the circumstances.                Gall, 552 U.S. at 51.

               The Government presented evidence at trial that Omozee

had $276,984.27 in unreported income over a three-year period.

At    sentencing,        the    Government        provided     an      affidavit      from     a

special agent with the Internal Revenue Service (“IRS”) that the

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IRS     had    calculated        the     total       tax    loss    based     on    Omozee’s

under-reporting         of      income    to    be    approximately        $82,430.        The

Government also provided Omozee the underlying calculations from

the IRS, and he had an opportunity to object to the calculations

but he did not do so.                  Instead, Omozee argued that his Sixth

Amendment       right      to    a   trial      by    jury    would    be     violated      by

increasing his guideline offense level based on extra verdict

enhancements that were neither admitted by him nor found by the

jury.         He    also     noted       that       the    affidavit   used        the    term

“approximately,” and he suggested that the district court should

utilize       the   formula       for     calculating        tax    loss    when     a    more

accurate determination of the loss cannot be made.                            The district

court     overruled        Omozee’s       objection         and    accepted    the       IRS’s

determination of tax loss.

               On appeal, Omozee argues that the district court erred

in accepting the Government’s estimated tax loss of $82,430, and

“the proper method is to calculate 28% of the unreported gross

income.”       We review the district court’s factual determination

of loss for clear error.                 See United States v. Miller, 316 F.3d

495, 503 (4th Cir. 2003).                 Pursuant to USSG § 2T1.1(c)(1), “the

tax loss is the total amount of loss that was the object of the

offense (i.e., the loss that would have resulted had the offense

been successfully completed).”                   When the offense involves filing

a tax return in which gross income was under-reported, “the tax

                                                3
loss shall be treated as equal to 28% of the unreported gross

income . . . plus 100% of any false credits claimed against tax,

unless a more accurate determination of the tax loss can be

made.”     USSG § 2T1.1(c)(1), n.(A).           In some instances, “the tax

loss may be uncertain,” and “the guidelines contemplate that the

court    will     simply    make   a    reasonable   estimate     based      on   the

available facts.”          USSG § 2T1.1, comment. (n.1).

            We conclude Omozee has failed to show the district

court clearly erred in finding the tax loss.                      The Government

informed    the    district     court    that   Omozee,    a   certified     public

accountant, was given the opportunity to review and object to

the IRS’s calculations, but he did not do so.                  Rather, he raised

a Sixth Amendment argument that was without merit, see United

States v. Grubbs, 585 F.3d 793, 799 (4th Cir. 2009), and noted

that the Government’s affidavit used the term “approximately.”

It was not clear error for the district court to conclude that

the IRS’s determination of the tax loss, which was not disputed

by Omozee, was “a more accurate determination of the tax loss”

than a straight percentage of the unreported income.

            We therefore affirm the district court’s judgment.                    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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