                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 11-4893


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

DUANE HAMELINK,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:10-cr-00042-RJC-1)


Submitted:   May 24, 2012                     Decided:   June 8, 2012


Before WILKINSON, WYNN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Dianne Jones McVay, JONES MCVAY LAW FIRM, PLLC, Charlotte, North
Carolina, for Appellant.    Jenny Grus Sugar, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

              Duane Hamelink pled guilty, pursuant to a written plea

agreement,      to    one   count        of   conspiracy       to    defraud      the       United

States,    in    violation          of    18     U.S.C.       § 371       (2006),       and    was

sentenced to 27 months’ imprisonment.                              On appeal, Hamelink’s

attorney has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), in which she asserts that she has found no

meritorious issues, but questions the constitutionality of the

sentencing enhancement Hamelink received for the amount of tax

loss.      Although         advised       of     his       right    to    file      a    pro    se

supplemental brief, Hamelink has not done so.                              For the reasons

that follow, we affirm.

              Hamelink, and his wife Eileen, owned and operated a

residential carpentry business in Charlotte, North Carolina.                                    At

his guilty plea hearing, Hamelink admitted that, despite earning

substantial      income      from     his      business,      he     failed    to       file   any

income tax returns.            Hamelink also admitted that he had taken a

variety of steps to conceal his income and assets from the IRS,

including the use of bogus trusts, nominee entities, and related

domestic   and       foreign    bank       accounts.          In    the    plea     agreement,

Hamelink      stipulated       that       the    amount      of     tax    loss     known,      or

reasonably foreseeable, to him was more than $1 million but less

than    $2.5    million,       and        that       the    base     offense        level      was

22.     See     U.S.    Sentencing            Guidelines      Manual       (USSG)       §     2T4.1

                                                 2
(2010).       After a two-level enhancement for use of sophisticated

means,       USSG     § 2T1.1(b)(2),          and       a     three-level          reduction      for

acceptance      of       responsibility,           USSG       §    3E1.1,     Hamelink’s         total

offense level was 21.               With a criminal history category of I,

Hamelink’s          advisory       Guidelines               range      was      37-46       months’

imprisonment.          However, the district court granted a three-level

downward departure, resulting in a total offense level of 18,

with     a     corresponding          guidelines              range        of      27-33        months

imprisonment.          The court imposed a sentence at the bottom of the

range.       Hamelink timely appealed.

               Counsel         questions               whether         USSG         § 2T4.1        is

unconstitutional because it allows inclusion of penalties and

interest      assessed        by   the       IRS   in       calculating         amount     of    loss

attributed for sentencing purposes.                           Counsel concedes, however,

that:     (1) Hamelink stipulated to the amount of loss in the plea

agreement; and (2) there is no case law supporting her argument.

               This        court      reviews               Hamelink’s          sentence          for

reasonableness            “under         a     deferential              abuse-of-discretion”

standard.       Gall v. United States, 552 U.S. 38, 41, 51 (2007).

In   conducting        this      review,      we       must       ensure    that    the    district

court        correctly         calculated              the         defendant’s         Guidelines

sentence.       Id. at 49, 51.               When reviewing the district court’s

application         of     the     Guidelines,              this      court      reviews        legal

conclusions         de     novo     and       factual             findings,     such       as    loss

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calculations,        for     clear           error.         United     States        v.   Sosa-

Carabantes, 561 F.3d 256, 259 (4th Cir. 2009); see also United

States      v.    Allen,     491    F.3d       178,     193     (4th    Cir.    2007)      (“In

reviewing [a] loss calculation, we review de novo the district

court’s       interpretation            of     what     constitutes         ‘loss,’       while

accepting the calculation of loss absent clear error.”).                                       The

Government        need     only    establish          the      tax   loss    amount       by     a

preponderance of the evidence.                   United States v. Mehta, 594 F.3d

277, 282 (4th Cir. 2010).                      Here, Hamelink stipulated to the

amount of tax loss and is therefore bound by that admission.                                    In

any event, inclusion of penalties and interest in calculating

tax loss was not erroneous.

              “Tax loss,” within the meaning of USSG § 2T2.1 is the

amount of taxes that the taxpayer “failed to pay or attempted

not to pay.” USSG § 2T2.1(a).                       Section 2T4.1(c) provides that:

“‘tax loss’ does not include penalties and interest except in

cases    of      willful    evasion      under        either    26   U.S.C.     §§    7201      or

7203.”      Hamelink clearly willfully evaded income taxes, as that

was   the     primary      goal    of    the    conspiracy.            Accordingly,       these

amounts were properly counted in amount of tax loss.                                 Moreover,

it is well established that the additions to tax for penalties

and interest are civil, not criminal, in nature, and therefore

do not implicate double jeopardy.                        See Helvering v. Mitchell,

303 U.S. 391 (1938).

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            In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm Hamelink’s conviction and sentence.                   This

court requires that counsel inform Hamelink, in writing, of the

right to petition the Supreme Court of the United States for

further review.        If Hamelink 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 Hamelink.

            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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