                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4099


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

           v.

ERIK DEHLINGER,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:06-cr-00900-TLW-1)


Argued:   January 29, 2010                  Decided:   March 5, 2010


Before MOTZ, GREGORY, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.

ARGUED: Michael Louis Minns, Rain Levy Minns, THE MINNS LAW
FIRM, Houston, Texas, for Appellant. Gregory Victor Davis,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. ON BRIEF: Ashley Blair Arnett, THE MINNS LAW FIRM,
Houston, Texas; John M. Ervin, III, LAW OFFICE OF JOHN M. ERVIN,
III, Darlington, South Carolina, for Appellant.    John DiCicco,
Acting Assistant Attorney General, Alan Hechtkopf, Tax Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; W. Walter
Wilkins, United States Attorney, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       On August 22, 2006, Dr. Erik Dehlinger (“Dehlinger”) was

indicted in the United States District Court for the District of

South Carolina on one count of conspiracy to defraud the United

States in violation of 18 U.S.C. § 371 and three counts of

willfully filing false income tax returns in violation of                              26

U.S.C. § 7206. The matter proceeded to trial and a jury found

Dehlinger not guilty on the conspiracy charge and guilty as to

the three tax evasion charges. On January 29, 2009, Dehlinger

was    sentenced     to   42   months   imprisonment.          He   now   appeals     his

conviction and sentence. We affirm.



                                            I.

       From 1997 to 2002, Dehlinger was an emergency room doctor

at    McLeod    Hospital    in    Florence,      South   Carolina.        In   1997   and

1998,    Dehlinger        engaged    the     services     of    Hoyt      Wayne   Terry

(“Terry”), a certified public accountant, to prepare his income

tax    returns.      In   1998,     Terry    calculated    Dehlinger’s         adjusted

gross income to be $301,091, with an income tax liability of

$85,188,       and   self-employment        taxes   of   $16,342.      Dehlinger      had

previously paid $49,510 of his tax liability and therefore owed

an additional $52,200 to the Internal Revenue Service (“IRS”).

Unbeknownst to Terry, however, Dehlinger never filed this, or

the previous year’s, tax return. In neither of these years did

                                            2
Dehlinger report any financial information to Terry regarding a

partnership      or   subchapter    S   corporation     in   which   he   had    an

interest.

      Dehlinger claimed that his good fortune in avoiding the

above-described tax liability resulted from his introduction by

his co-worker, Dr. Raghavan Chari, to the Anderson’s Ark and

Associates’ (“AAA”) programs. AAA purported to serve as a tax,

retirement planning, and investment company based in Costa Rica.

AAA sold audiotapes and books and conducted seminars, providing

advice on how to, allegedly legally, avoid personal income tax

liabilities. In March 1999, Dehlinger purchased an AAA audiotape

series     entitled    “Gateway    to   Financial   Freedom,”    delivered       by

Guardian Management, an AAA affiliate.

      Following       this   initial    purchase,   Dehlinger    used     several

other programs marketed by AAA, including both the “Look Back”

and “Look Forward” series. AAA and Guardian Management designed

“Look Back” to enable its users to both avoid tax liabilities

for the current year and also to “recapture” taxes paid in the

two years prior to usage of the program. Under the “Look Back”

program, a user would create a partnership with an AAA affiliate

such that the customer held a 95% interest and the AAA affiliate

held the remaining five percent interest. AAA would arrange for

an entity known as “La Maquina Blanca” to make a loan directly

to   the   AAA   affiliate     minority      partner,   in   exchange     for   the

                                         3
client’s execution of a promissory note. The partnership would

then use the loan funds to make a guaranteed payment to the AAA

affiliate     minority    partner,     allegedly         for     consulting    and

marketing services. In accordance with Section 707(c) of the

Internal Revenue Code, a guaranteed payment to a partner for the

performance    of    services    constitutes        a     deductible     ordinary

business expense on the partnership’s tax returns. 26 U.S.C. §

707(c). Because the partnership created by AAA reported zero or

at most minimal income, the guaranteed payment resulted in a net

loss for the partnership, which would then pass through to each

of the partners in proportion to their ownership interests. The

partners    could   use   the   loss   to   avoid       paying   taxes   for   the

current year and to “recapture” taxes paid for the two preceding

years.

     In contrast to the “Look Back” program, the “Look Forward”

program sought to avoid current income tax liability. Under the

plan, AAA created a limited liability corporation (“LLC”) for

each client. The partnership created through the “Look Back”

program would provide consulting services to the LLC. The LLC

would then make a “consulting fee” payment to the partnership’s

bank account, over which the client had sole control. Again, the

losses would “pass-through” to the client, resulting in losses

on his or her income tax returns.



                                       4
       In reality, neither of these programs operated as it was

purported to operate. Baton Venture, the partnership AAA created

for Dehlinger as a part of the “Look Back” program, allegedly

received a loan from La Maquina Blanca of $650,000 in time to

make a guaranteed payment in that amount to Mason Advertising,

the AAA-created minority partner, by December 30, 1998. In fact,

Dehlinger neither signed the promissory note nor paid the loan

fees until March 1999, both prerequisites for the funding of the

loan, according to the note. Rather, Dehlinger backdated his

signature to December 20, 1998. In addition, Dehlinger never

made a payment on the loan or granted the creditor a security

interest    even   though    he    signed     both   the   loan    agreement      and

promissory note. Finally, despite claiming a partnership loss of

$646,594 because of the guaranteed payment, there is no record

of such a payment made to Mason Advertising.

       All in all, the partnership losses translated to a negative

$335,167    adjusted      gross   income      for   Dehlinger     in    1998   and   a

refund     of    nearly    $45,000    when      computed     by    the     Guardian

Management Company. Dehlinger filed a Form 1045 in that year,

prepared    by   George     Benoit   (“Benoit”),       a   Guardian      Management

employee. This return sought refunds of $34,135 and $34,442 for

taxes paid in 1996 and 1997. Dehlinger filed this return rather

than the one Terry had previously prepared. Dehlinger’s 1999

Form   1040,     also   prepared     by    Benoit,    reported     an    income      of

                                          5
$240,164 from his medical practice. Again, however, Dehlinger

reported no taxable income and no tax liability. On his 2000

Form 1040, Dehlinger again reported no taxable income and no tax

liability. Dehlinger reported a partnership loss of $242,670 due

to a $250,000 guaranteed payment to Mason Advertising, resulting

in no tax liability despite an income from his medical practice

of $240,164. In February 2002, Dehlinger used an AAA-affiliated

CPA, Tara LaGrand (“LaGrand”), to prepare his 2001 tax returns.

LaGrand     also    amended    Dehlinger’s        2000   tax     return,      using    the

“Look Back” program to recapture taxes already paid.

      On August 22, 2006, a grand jury sitting in the District of

South      Carolina     returned       a     four-count        indictment       charging

Dehlinger with one count of conspiracy to defraud the United

States, in violation of 18 U.S.C. § 371, and three counts of

making and subscribing a false return, in violation of 26 U.S.C.

§ 7206(1). Dehlinger pled not guilty on all counts.

      At trial, Dehlinger testified on his own behalf, claiming

that Dr. Chari had convinced him that the programs sold by AAA

were legitimate means of avoiding income taxes. Dehlinger denied

knowing     that      the    various       components     of     the    program       were

illegitimate. He claimed that at the time he filed the returns,

he   did    not    believe    that     he   was   committing         fraud    by   taking

deductions related to the AAA programs. He also asserted that he

relied     on   his   tax    return    preparers     and       the   AAA     principals,

                                             6
including LaGrand, in filing the returns that reported zero tax

due and owed.

     Following      a     five-day     jury       trial,      the     jury    convicted

Dehlinger   on    three    counts     of    making      and    subscribing     a    false

return, and acquitted him on the conspiracy to defraud count. On

January 7, 2009, the district court sentenced Dehlinger to 42

months’ incarceration, to be followed by one year of supervised

release.    The   court     also     ordered      him    to    pay    restitution      of

$363,207, a fine of $5,000, and a $300 special assessment.



                                           II.

     Dehlinger     challenges        his    conviction         principally      on    the

ground of ineffective assistance of counsel, claiming that his

attorney    had    a      conflict     of        interest      that    impaired       his

representation     of     Dehlinger.        Dehlinger         also    challenges      the

district court’s (1) denial of his motion for a mistrial after a

witness     volunteered       testimony           previously          ruled    to     be

inadmissible      hearsay;     (2)     admission         of    testimony      from    an

undercover IRS agent regarding his experience with AAA programs;

and (3) calculation of his base offense level and imposition of

a sentencing guidelines enhancement for obstruction of justice.

We address these issues in turn.




                                            7
                                        A.

      Whether     defendant’s     trial      counsel     had     a    conflict    of

interest presents a mixed question of law and fact, reviewed de

novo by this court. See Mickens v. Taylor, 240 F.3d 348, 360

(4th Cir. 2001) (en banc), aff’d, 535 U.S. 162 (2002); Williams

v. French, 146 F.3d 203, 212 (4th Cir. 1998).

      This    court   considers       ineffective       assistance      claims    on

direct appeal only if it “‘conclusively appears’ from the record

that defense counsel did not provide effective representation.”

United States v. Gastiaburo, 16 F.3d 582, 590 (4th Cir. 1994)

(citations omitted); United States v. Baldovinos, 434 F.3d 233,

239 (4th Cir. 2006); United States v. Richardson, 195 F.3d 192,

198 (4th Cir. 1999); United States v. King, 263 Fed. App’x 332,

333 (4th Cir. 2008). The reason for this restriction is that,

generally, a motion under 28 U.S.C. § 2255 in the district court

is   preferable    than    direct     appeal,    so     that    the    parties    may

adequately      develop    the   record.     Gastiaburo,        16    F.3d   at   590

(citations omitted); United States v. King, 119 F.3d 290, 295

(4th Cir. 1997).

      The Supreme Court has held that criminal defendants have a

Sixth   Amendment      right     to    conflict-free           representation     by

counsel.     Cuyler   v.   Sullivan,       446   U.S.    335,     345-50     (1980);

Holloway v. Arkansas, 435 U.S. 475 (1978). A defendant seeking a

new trial must show “‘some real conflict of interest . . .

                                        8
resulting from [overlapping] representation [of two clients]’”

to    succeed    on    this      Sixth    Amendment         claim.    United       States   v.

Atkinson, 565 F.2d 1283, 1284 (4th Cir. 1977) (quoting United

States v. Lovano, 420 F.2d 769, 772 (2d Cir. 1970)). The mere

fact of overlapping representation is insufficient to create a

Sixth    Amendment      violation.         See      id.    Rather,    a     defendant      must

establish       that    (1)      his     attorney         labored    under     “an    actual

conflict of interest” that (2) “adversely affected his lawyer's

performance.”          Sullivan,         446     U.S.      at     348;      Strickland      v.

Washington, 466 U.S. 668, 691-92 (1984); United States v. Stitt,

552 F.3d 345, 350 (4th Cir. 2008), cert. denied, 130 S. Ct. 65

(2009); United States v. Tatum, 943 F.2d 370, 375 (4th Cir.

1991).

       Dehlinger claims that his attorney, Scott Engelhard, Esq.

(“Engelhard”)         had    a   conflict          that    arose     from    the     latter’s

representation         of    him,      LaGrand      (the        AAA-affiliated       CPA    who

prepared his 2001 tax returns and amended his 2000 tax returns),

and    Collis    Redd       (“Redd”),     an     AAA      tax    planner.    According      to

Dehlinger, Engelhard refused to call LaGrand as a witness during

his trial, even though LaGrand could have offered exculpatory




                                               9
evidence, because Engelhard’s loyalties were divided between the

two clients. 1

     Here, although Dehlinger raises more than a colorable claim

that Engelhard’s loyalties were impermissibly divided, a review

of the record shows that the facts are not conclusive. It is not

for this court to determine the character, duration, and extent

of Engelhard’s representation of Dehlinger, LaGrand, and Redd,

in the first instance, and whether his representation of these

individuals created actual conflict that adversely affected his

representation of Dehlinger. Indeed, we decline to comment on

these issues. Although, at Dehlinger’s insistence, the district

court    conducted      limited,        non-evidentiary   post-verdict

proceedings      to   examine   Dehlinger’s      allegations   against

Englehard, we agree with the       court’s conclusion that the facts

and circumstances presented by this record should be evaluated

by a district judge acting on an adequate factual record in an

orderly post-conviction proceeding rather than on the basis of

dueling affidavits and declarations. Accordingly, we hold that

Dehlinger has not “conclusively” established the existence of an

     1
       According to Dehlinger, LaGrand could have testified that
her clients, Dehlinger included, believed that AAA’s tax
strategies were legal. Ostensibly, LaGrand’s testimony would
have contradicted the government’s evidence of Dehlinger’s
willful violation of the tax laws. Dehlinger further argues that
LaGrand’s testimony previously exculpated defendants in related
and similar prosecutions in other federal districts.



                                   10
actual conflict of interest that adversely affected Engelhard’s

representation of Dehlinger. 2

                                                  B.

       We review a district court’s refusal to grant a mistrial

for abuse of discretion. United States v. West, 877 F.2d 281,

287-88 (4th Cir. 1989). An abuse of discretion is found “only

under the most extraordinary of circumstances” and requires that

a   defendant          have        experienced             prejudice.      United        States   v.

Dorlouis, 107 F.3d 248, 257 (4th Cir. 1997).                               A defendant cannot

prove       prejudice         if       a       jury    “could       make    individual        guilt

determinations          by    .        .   .    appraising         the   independent       evidence

against each defendant,” but rather this court must find that

there is a “reasonable possibility” that the error influenced

the jury’s verdict.                United States v. Porter, 821 F.2d 968, 972

(4th Cir. 1987); United States v. Seeright, 978 F.2d 842, 849

(4th       Cir.    1992).          A       district        court    can    generally        prevent

prejudice         to    a     defendant               by    “a     cautionary       or     limiting

instruction, particularly if the danger of prejudice is slight

in view of the overwhelming evidence of guilt.”                                 United States

v. Ham, 998 F.2d 1247, 1254 (4th Cir. 1993) (quoting United

States v. Masters, 622 F.2d 83, 87 (4th Cir. 1980); see also


       2
       In light of our holding, we deny Dehlinger’s motion to
file a supplemental brief.



                                                      11
United States v. Johnson, 610 F.2d 194, 196-97 (4th Cir. 1979)

(“The general rule is that if evidence which may have been taken

in the course of a trial be withdrawn from the consideration of

the jury by the direction of the presiding judge, that such

direction cures any error which may have been committed by its

introduction.”).

       Here, the district court did not abuse its discretion in

denying Dehlinger’s motion for a mistrial after William Cauthen,

Jr. (“Cauthen”) offered testimony that the court had previously

deemed     inadmissible        and   subsequently     ordered     stricken.      The

district court had ruled that Cauthen could not characterize

anything      on   the   AAA   website    as     “right   wing   or   fringe.”   In

response to the prosecutor’s inquiry of his “impression of the

information that [he] saw on the AAA website,” however, Cauthen

stated that he “thought the information that I saw there was

sort     of   fringe       material,     right     wing   material,     and   that

potentially it could be fraud.” Upon Dehlinger’s objection and

motion for a mistrial, the district court ordered the statement

stricken from the record. The district court refused to grant a

mistrial. During final instructions the district court reminded

the jury that “if any evidence was stricken from the record,

[they]    should     not    consider     that    evidence   in   making   [their]

decision.”



                                          12
      Cauthen’s       statement            was    one      line      in    a    four-day     trial

replete with evidence establishing Dehlinger’s guilt, including

signed     fraudulent          tax    returns.           The      district      court      quickly

ordered      the    statement             stricken         and,      before      deliberations,

reminded     the    jury       not    to    consider        such        evidence.    See    United

States v. Harris, 165 F.3d 1062, 1066 (6th Cir. 1999) (affirming

the district court’s denial of a motion for mistrial after a

brief reference to a prior arrest where “the district court gave

an immediate and clear limiting instruction”); Black v. Shultz,

530   F.3d     702,      707    (8th       Cir.    2008)       (affirming          the    district

court’s refusal to grant a mistrial given the fact that the

court “gave a curative instruction” after a single statement was

made in violation of the court’s order). And although Dehlinger

claims    before      us    that      the    statement            was     devastating      to   his

defense, he does not state how the statement made about the AAA

website    prejudiced          him    or    what       impact      it     likely    had    on   the

jury’s     determination             of    his     guilt.         See      United    States      v.

Baumgarten,        517     F.2d      1020,        1030      (8th        Cir.    1975)     (denying

defendant’s motion for a mistrial where witness’ brief reference

to    defendant’s           previous             arrest        was        “of    very       little

significance”); United States v. Butler, 71 F.3d 243, 255 (7th

Cir. 1995) (holding that a prosecutor’s lone comment did not

warrant    a   mistrial         as    it    “was       a    single,       isolated,       indirect

remark”).

                                                  13
                                              C.

       The decision whether to admit evidence is properly within a

district court’s discretion; thus, we review a district court’s

admission of evidence for abuse of discretion. United States v.

Hodge,     354   F.3d    305,    312       (4th    Cir.    2004);     United      States   v.

Lancaster, 96 F.3d 734, 744 (4th Cir. 1996). A district court

abuses its discretion “only when it can be said that [it] acted

arbitrarily      or    irrationally         in     admitting     evidence,”       something

that       occurs       only     under           “the     most      extraordinary          of

circumstances.” United States v. Williams, 445 F.3d 724, 732

(4th Cir. 2006) (citing United States v. Simpson, 910 F.2d 154,

157 (4th Cir. 1990)); see also United States v. Heater, 63 F.3d

311, 325 (4th Cir. 1995) (“[I]n order to find a district court's

error      harmless,     we     need       only    be     able   to     say    ‘with   fair

assurance, after pondering all that happened without stripping

the erroneous action from the whole, that the judgment was not

substantially swayed by the error.’”) (quoting United States v.

Nyman, 649 F.2d 208, 211–12 (4th Cir. 1980)).

                                              1.

        Fed. R. Evid. 701 allows lay witnesses to express opinions

that are “(a) rationally based on the perception of the witness,

(b) helpful to a clear understanding of the witness' testimony

or   the    determination       of     a    fact    in    issue,      and   not   based    on

scientific, technical, or other specialized knowledge within the

                                              14
scope of [expert testimony].”               In addition, courts have held

that lay testimony generally requires that the opinion offered

be “the product of reasoning processes familiar to the average

person.”      See United States v. Garcia, 413 F.3d 201, 215 (2d.

Cir. 2005); United States v. Cooks, 589 F.3d 173, 180 (5th Cir.

2009).

       Dehlinger     argues   that   the     district   court    impermissibly

allowed lay witnesses to offer “expert testimony” designed to

show   that     he   possessed   a   guilty    state    of   mind   during   his

interactions with AAA. At trial, the district court permitted

Cauthen    to   offer   testimony     about    the   AAA     website.   As   just

discussed, however, the court ordered testimony characterizing

the website as “fringe,” stricken from the record and instructed

the jury to disregard it. The court also permitted Special Agent

Mike Preiss, who conducted an undercover investigation into the

operation of AAA, to testify about investors’ relationships with

AAA,   specifically      focusing    on    Dehlinger.   In    permitting     such

testimony, the court reasoned that the testimony would “provide

some evidence for the jury to consider in terms of what actually

went on at [AAA] and what the process was.” As a witness, Preiss

compared the partnership documents AAA sent him while he was

undercover with those that Dehlinger had obtained from AAA and

testified to his understanding of how the AAA programs worked,

and specifically, that he was to receive about $300,000 in tax

                                       15
savings. Preiss also noted the existence of similar statements

about   tax    benefits          in   an    executive     summary     AAA    sent     to

Dehlinger. Preiss further discussed and compared plan documents

that he had received from AAA with those Dehlinger had in his

possession.        To    his     knowledge,      Preiss        indicated    that    the

partnerships and companies created by AAA conducted no business

of their own, as indicated in their income tax returns which

listed no gross income or receipts and included only minimal

expenditures, other than the guaranteed payment at issue. And

even though the partnership agreement explicitly set out the

various responsibilities of each partner to the agreement, the

partners never performed any of these duties. Priess testified

that, based on his experience with AAA, he was not obligated to

repay   the    loan       for     which    he    had    cosigned     and    that    was

subsequently used to fund the guaranteed payment to his AAA-

affiliated partner.

     Dehlinger          claims    that     Cauthen’s     and    Preiss’s    testimony

amounted      to    impermissible          expert      testimony     because       their

statements demonstrate that Dehlinger knew the information on

the AAA website was illegitimate and that Dehlinger had the same

guilty state of mind as Preiss did during his interactions with

AAA, respectively. This argument fails. The testimony at issue

in this case is not, in either purpose or effect, that of an

expert. Both witnesses merely offered their opinion of their

                                            16
individual experiences with AAA, making deductions and drawing

inferences that an “average person” would similarly be capable

of   in    an      identical    situation.       Neither          Cauthen     nor    Priess

testified about Dehlinger’s mental state or whether he knowingly

violated the tax laws. Cauthen limited his statements only to

his personal impressions of the AAA website, which were later

stricken,       as    previously       discussed.           Preiss’s    testimony          was

restricted to his own knowledge of, and experience with, AAA. He

offered his personal impressions of AAA and the similarities

inherent      in     the   documents      AAA    provided          to   him    and     those

Dehlinger       received.      He   did   not,     as   Dehlinger       would       have   us

believe,      proffer      testimony      suggesting        that    Dehlinger        himself

possessed a felonious intent. He never testified or even hinted

that, because he believed AAA’s programs were illegal, Dehlinger

must have believed they were illegal as well. In short, neither

Cauthen     nor      Priess     testified        to     the       ultimate      issue       of

Dehlinger’s willfulness as an expert witness would have.

                                            2.

      Where admission of lay testimony is challenged as bordering

on   expert     opinion,     testimony      that      has    no    direct     effect    upon

proof of the elements of the substantive offenses charged, will

not be overturned, particularly if there is sufficient evidence

elsewhere in the record upon which the jury could have found the

defendant guilty. See Fed. R. Crim. P. 52(b)).

                                           17
       Dehlinger was found guilty of three counts of willfully

filing false income tax returns. One of the elements proved by

the government was that Dehlinger voluntarily and intentionally

violated a known legal duty. Cheek v. United States, 498 U.S.

192, 201 (1991). Even discounting Priess’s testimony, there was

sufficient evidence of willfulness. For instance, the government

presented evidence that, in 1998, Dehlinger had accurate Form

1040s     prepared by Terry. Dehlinger, however, did not file this

form    or    inform     Terry      that    this     form    was    incorrect.        Rather,

Dehlinger signed and filed a tax return that claimed a refund of

all    taxes      paid   to   a     AAA    partner.      This     evidence      shows    that

Dehlinger         knowingly    filed       fraudulent       tax    returns.     See     United

States       v.   Mohney,     949    F.2d    1397,       1407     (6th   Cir.    1991)    (“A

taxpayer’s signature on a return does not in itself prove his

knowledge of the contents, but knowledge may be inferred from

the      signature       along        with         the      surrounding         facts     and

circumstances, and the signature is prima facie evidence that

the signer knows the contents of the return.”) (citing United

States v. Harper, 458 F.2d 891, 894 (7th Cir. 1971)); United

States v. Drape, 668 F.2d 22, 26 (1st Cir. 1982) (holding that a

defendant’s signature is sufficient to establish knowledge once

it has been shown that the return was false). The district court

did not abuse its discretion in refusing to grant a mistrial.



                                              18
                                               D.

       We    review       a    district        court’s     interpretation     of     the

Sentencing Guidelines de novo and its factual findings for clear

error. United States v. Osborne, 514 F.3d 377, 387 (4th Cir.

2008), cert. denied, 128 S. Ct. 2525 (2008); United States v.

Daughtrey, 874 F.2d 213, 217-18 (4th Cir. 1989). If a defendant

fails to raise a timely objection during sentencing, however, we

review the district court’s actions for plain error. See United

States v. Olano, 507 U.S. 725, 731-32 (1993); United States v.

Uzenski, 434 F.3d 690, 711 (4th Cir. 2006); United States v.

Lynn, Nos. 08-5125, 08-5126, 08-5132, 09-4341, _ F.3d _, 2010 WL

322176 (4th Cir. Jan. 28, 2010).

       Dehlinger        claims      that       the   district     court    improperly

sentenced him when it (1) took into account three years of tax

losses      for   which       he   was   not    indicted    or   convicted   and     (2)

increased his offense level by two levels for obstruction of

justice. As to the former issue, the district court properly

took into account three years of tax losses for which Dehlinger

was not indicted in calculating his base offense level. When an

offense involves tax evasion or filing fraudulent tax returns,

the Sentencing Guidelines calculates a defendant’s base offense

level on the attempted tax loss, defined as “the total amount of

loss     that     was     the      object      of    the   offense.”      U.S.S.G.     §

2T1.1(c)(1); United States v. Delfino, 510 F.3d 468, 472 (4th

                                               19
Cir. 2007). Tax loss is loss attributable to the offense of

conviction and any other loss due to relevant conduct, including

“all acts and omissions committed, aided, abetted, counseled,

commanded,        induced,       procured,        or    willfully    caused        by   the

defendant     .    .   .   that      occurred     during     the   commission      of   the

offense of conviction, in preparation for that offense, or in

the course of attempting to avoid detection or responsibility

for that offense,” U.S.S.G. § 1B1.3(a)(1), and all such acts and

omissions that were part of the same course of conduct or common

scheme   or       plan     as    the    offense        of   conviction,      U.S.S.G.     §

1B1.3(a)(2). “[A]ll conduct violating the tax laws should be

considered     as      part     of   the   same    course     of   conduct    or    common

scheme or plan unless the evidence demonstrates that the conduct

is clearly unrelated.” U.S.S.G. § 2T1.1 comment (n.2); United

States v. Ervasti, 201 F.3d 1029, 1042 (8th Cir. 2000).

     Here,    the        presentence       investigation      report   recommended        a

tax loss of $363,207, which included tax loss for the six-year

period from 1996 to 2001. During sentencing, Dehlinger did not

object to the very inclusion of tax losses from 1996, 1997, and

1998. Rather, Dehlinger objected to the inclusion of those tax

losses only to the extent that they did not reflect deductions

to which he may have been entitled. The district court did not

err in overruling Dehlinger’s objection and including tax losses

from 1996 to 1998 because it was shown at trial that Dehlinger

                                             20
used the same AAA programs and made the same types of deductions

in those three years as the subsequent three years for which he

was indicted and convicted. See Ervasti, 201 F.3d at 1042 (using

"fraud      loss,"       which      defendant         conceded    to     be    $5,747,478.88,

rather than "tax loss," to which she did not “ascribe a precise

value,” as the basis for calculating the base offense level in a

mail fraud case in which the defendant misappropriated impounded

tax     monies          from        clients      of      their      payroll          processing

corporation); see also United States v. Hayes, 322 F.3d 792,

801-02 (4th Cir. 2003) (vacating a sentence because the district

court did not consider all relevant evidence in determining the

applicable tax loss).

       As   to     the    second         of   Dehlinger’s        sentencing        issues,      the

district court did not err in increasing Dehlinger’s offense

level by two levels for obstruction of justice. The Sentencing

Guidelines         allow       a     two      level    increase        if     “the    defendant

willfully obstructed or impeded, or attempted to obstruct or

impede,      the     administration             of    justice     with      respect        to   the

investigation, prosecution, or sentencing of the instant offense

of    conviction         and       any   relevant      conduct.”       U.S.S.G.        §    3C1.1;

United States v. Puckett, 61 F.3d 1092, 1095 (4th Cir. 1995).

Obstruction        of    justice         includes      committing       perjury       at    trial.

U.S.S.G. § 3C1.1, comment (n.4(b)). A district court applying an

enhancement        based       on    obstruction        of   justice        must     necessarily

                                                 21
find, by a preponderance of the evidence, that the defendant (1)

gave false testimony, (2) concerning a material matter, (3) with

the willful intent to deceive while under oath. United States v.

Dunnigan, 507 U.S. 87, 92-98 (1993); United States v. Sun, 278

F.3d 302, 314 (4th Cir. 2002) (citing United States v. Smith, 62

F.3d 641, 646 (4th Cir. 1995)).

       The district court found that Dehlinger committed perjury

when he testified (extensively) under oath that he relied on

others, taking advice from his accountant and financial planner,

as well as Dr. Chari, regarding the legality and soundness of

the AAA programs. Specifically, Dehlinger claimed that he took

certain deductions “because Richard Marks and George Benoit said

they   were      appropriate    deductions.”     Tr.   108.      As   an    initial

matter, the district court’s enhancement for perjury did not

constitute       double   counting     (even    though     Dehlinger’s         crime

constituted lying to the IRS) because the crime for which he was

convicted was completed by the time he went on trial. Indeed,

his crime was complete after he had filed the fraudulent tax

returns.      Lying   under    oath   constitutes      a   new    and      different

circumstance designed to hide the already completed crime. In

short,     the     conduct     underlying      Dehlinger’s       conviction       is

different from the conduct upon which the district court based

its enhancement.



                                       22
       Second, the district court properly reasoned that, since

the jury found Dehlinger guilty of all tax evasion charges, it

must have rejected all of his testimony regarding good faith and

lack    of    willfulness.   During     sentencing,      the   district   court

discussed      at   length   its    reasons   for    enhancing    Dehlinger’s

sentence; namely, that Dehlinger (1) gave false testimony, (2)

concerning a material matter, (3) with the willful intent to

deceive while under oath. The district court said,

       [Defendant’s]   testimony  was   to  say, if   it  is
       detrimental reliance, if that is the description, the
       proper description, it may well be; but it was more
       specific about what was going on, what I did and,
       gosh, I really did not know that this was not on the
       up and up. And it seems that the jury evaluated that
       testimony and the jury found the defendant guilty and
       ignored that testimony altogether. . . .

       But [defendant] was very specific about what he had
       done and the fact that it was not bad motive or
       criminal intent by him; but the specifics were such
       that, it seems to me, there was a rejection of those
       facts. . . . But the testimony was detailed and
       specific about what happened; and he asked the jury to
       rely on his position that he did not know what was up
       in light of a lot of evidence that indicated that he
       knew some of the things that were going on simply were
       not legal, and ultimately the jury concluded they were
       criminal.

Sent.   Tr.    34-38.   These      observations     by   the   district   court

support its determination that Dehlinger committed perjury for

the sole purpose of deceiving the jury regarding his culpability

and involvement with AAA. The district court therefore properly

sentenced Dehlinger.


                                       23
                              III.

     For the foregoing reasons, we affirm Dehlinger’s conviction

and sentence, without prejudice to any post conviction claim

based on ineffective assistance of counsel that appellant may

elect to pursue.

                                                        AFFIRMED




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