                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4819


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

BRUCE GREGORY HARRISON, III,

                Defendant – Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
District Judge. (1:10-cr-00411-JAB-1)


Submitted:   September 26, 2013           Decided:   October 3, 2013


Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James B. Craven, III, Durham, North Carolina, for Appellant.
Kathryn Keneally, Assistant Attorney General, Frank P. Cihlar,
Chief, Criminal Appeals & Tax Enforcement Policy Section,
Gregory Victor Davis, Damon W. Taaffe, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Bruce Gregory Harrison, III, was tried and convicted on 63

counts of violating federal tax laws.              Following his conviction,

the district court sentenced Harrison to 144 months imprisonment

and three years of supervised release.                The court also ordered

Harrison to pay restitution in the amount of $43,207,976 as a

condition of supervised release.              Harrison now appeals, and we

affirm.

       Harrison      owned   and   operated    several       temporary   staffing

agencies from offices in Greensboro, North Carolina.                     Although

Harrison employed a large workforce, he failed to file required

Internal Revenue Service (IRS) forms and failed to collect and

withhold, inter alia, payroll taxes.               Harrison also failed to

file personal tax returns for 2004, 2005, and 2006.                        In late

2006, Harrison sold the staffing companies to two employees.

While those employees operated the companies, the payroll taxes

were   paid    and    employment   tax   returns      were   filed.      In    2008,

Harrison      reacquired     the   companies    and    again     stopped      paying

payroll taxes.         Harrison used these withheld payments to fund

his lifestyle, including the purchase of a luxury beach house

and the production of two motion pictures, National Lampoon’s

Pucked, featuring Jon Bon Jovi, and Home of the Giants.

       For these actions, as well as efforts made to conceal his

criminal activities, a federal grand jury indicted Harrison on

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one         count    of     corruptly       endeavoring       to        obstruct      the

administration of the internal revenue laws, in violation of 26

U.S.C. § 7212(a), 59 counts of failing to account for and pay

payroll taxes, in violation of 26 U.S.C. § 7202, and 3 counts of

willfully failing to file income tax returns, in violation of 26

U.S.C. § 7203.             After a three-week trial, the jury convicted

Harrison on all counts.              Following trial, the probation office

prepared a Pre-Sentence Report (PSR).                  The PSR calculated the

total tax loss as $43,951,921; this number included the withheld

payroll taxes, personal income taxes Harrison failed to pay for

2004,       2005,    and   2006,    and   additional    losses      caused       by   the

staffing companies.              The PSR calculated Harrison’s base offense

level as 28 and, with several enhancements, arrived at a total

offense level of 36 and a guidelines range of 188 to 235 months

imprisonment.         The district court adopted the PSR and sentenced

Harrison        to    a     below-guidelines      sentence         of     144      months

imprisonment.              The    court    also   ordered      Harrison         to    pay

restitution of $43,207,976. 1

        On      appeal,      Harrison       argues     that        the      Government

constructively         amended     the    indictment   by   presenting          evidence

that he failed to pay federal unemployment tax returns, and that

        1
       The restitution order differed from the tax loss because
the tax loss included loss to the State of North Carolina, while
the restitution order included loss only to the IRS.



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restitution was not authorized in this case or, in any event,

was capped at $15.9 million.               We reject both contentions. 2

     First, there was no constructive amendment in this case.

“A constructive amendment, also known as a ‘fatal variance,’

happens    when        the     government,         through        its    presentation      of

evidence or its argument, or the district court, through its

instructions      to     the     jury,    or       both,      broadens     the    bases   for

conviction      beyond       those     charged      in     the    indictment.”         United

States    v.    Roe,    606     F.3d    180,       189   (4th     Cir.    2010)     (internal

quotation marks omitted).                Harrison contends such an amendment

occurred in this case because the Government presented evidence

that he also failed to pay an unemployment tax that was not

charged    in     the        indictment.            This      evidence,     however,      was

admitted—without             objection—simply            to      show    that     Harrison’s

staffing agencies were still in operation in the years he failed

to   submit      payroll       taxes.          Likewise,         the     district    court’s

instructions to the jury reinforced that Harrison was charged

“only for the actual conduct alleged in the indictment and not

anything       else”    (J.A.     2205),       and       specified        repeatedly      that



     2
       Harrison also challenges the sufficiency of the evidence
on Count 62, which charged him with failing to file a tax return
in 2005, and the district court’s imposition of a two-level
enhancement under U.S.S.G. § 2T1.1(b)(1).       We have reviewed
these claims and find them to be without merit.



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Harrison was charged with 59 counts of failing to “pay over

payroll taxes.” (J.A. 2214).

       Second,    the    restitution        order   is   appropriate.          Harrison

contends    that        offenses     under      Title    26    do     not    authorize

restitution and that, even assuming otherwise, any restitution

is capped at $15.9 million, the amount of unpaid taxes, rather

than the $43,207,976 million in tax loss caused by his scheme.

Harrison did not raise these challenges below and we thus review

them for plain error.         See United States v. Engle, 676 F.3d 405,

424 (4th Cir. 2012).           To establish plain error, Harrison must

show “that an error occurred, that the error was plain, and that

the error affected his substantial rights.”                         United States v.

Thompson, 554 F.3d 450, 454 (4th Cir. 2009).                        Even if Harrison

makes this showing, we retain the discretion to notice the error

and should do so only if the error “seriously affect[s] the

fairness,        integrity     or      public       reputation         of      judicial

proceedings.”       United States v. Marcus, 560 U.S. 258, 130 S.Ct.

2159, 2164 (2010) (internal quotation marks omitted).

       Because    Harrison     cannot        show   that      the    district     court

committed error, let alone plain error, his claim must fail.                        To

begin with, the court was authorized to award restitution in

this    case.      Harrison        argues    that    none     of    the     restitution

statutes, including 18 U.S.C. § 3663 (the Victim and Witness

Protection Act), and 18 U.S.C. § 3663A (the Mandatory Victims

                                            5
Restitution Act), authorize restitution for violations of Title

26.     While Harrison is correct, he overlooks the fact that the

court     issued    its    restitution       order    as     a     term    of   Harrison’s

supervised release.            Under 18 U.S.C. § 3583(d), a court may, as

a   condition      of     supervised       release,       impose    any     condition      of

probation       listed      in     § 3563(b).             That     section      authorizes

restitution        to    the     “victim     of     the     offense.”           18     U.S.C.

§ 3563(b)(2).           Thus, it is well-settled that “the Supervised

Release      Statute,          together      with     the        Probation           Statute,

unambiguously authorizes federal courts to order restitution . .

.   for   any   criminal         offense,    including       one     under      Title    26.”

United States v. Batson, 608 F.3d 630, 635 (9th Cir. 2010).                               See

also United States v. Perry, 714 F.3d 570, 577 (8th Cir. 2013)

(“many     circuits       have     noted     [that]       Congress        has   explicitly

granted     district        courts     discretionary             authority        to     make

restitution to a victim of the offense a condition of supervised

release, without regard to whether the defendant committed an

offense enumerated” in § 3663 and § 3663A) (internal quotation

marks omitted); United States v. Hassebrock, 663 F.3d 906, 923-

24 (7th Cir. 2011) (same).

      Harrison’s alternative contention, that the restitution is

capped at $15.9 million, the identified tax loss on Counts 2-63,

fares no better.           Harrison correctly notes that restitution is

limited to “the offense of conviction and [is] not for other

                                             6
related   offenses       of   which   the       defendant   was   not     convicted,”

Batson, 608 F.3d at 636, but overlooks his conviction on Count

One, for interference with the administration of the internal

revenue laws, in violation of 26 U.S.C. § 7212(a).                        This count

covered a broader swath of conduct and amply supports the full

restitution award.            See United States v. Scheuneman, 712 F.3d

372, 380 (7th Cir. 2013) (holding that restitution order could

encompass       losses        “directly         attributable”      to     a      § 7212

conviction).

      Accordingly, we affirm Harrison’s conviction and sentence.

We   dispense    with    oral    argument        because    the   facts    and   legal

contentions     are   adequately      presented       in    the   materials      before

this court and argument would not aid the decisional process.



                                                                              AFFIRMED




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