                              ON REHEARING

                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-4759


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

BILLY GENE JEFFERSON, JR.,

                Defendant - Appellant.



                              No. 14-4760


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

BILLY GENE JEFFERSON, JR.,

                Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond.       John A. Gibney, Jr.,
District Judge. (3:13-cr-00221-JAG-1; 3:14-cr-00066-JAG-1)


Submitted:   March 30, 2015                  Decided:   August 14, 2015


Before WYNN, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.


John S. Martin, John E. Beerbower HUNTON & WILLIAMS LLP,
Richmond, Virginia, for Appellant.      Dana J. Boente, United
States Attorney, Michael R. Gill, Assistant United States
Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       Billy Gene Jefferson, Jr., pleaded guilty to major fraud

against the United States, in violation of 18 U.S.C. § 1031, and

unlawful         monetary   transactions,          in     violation     of    18       U.S.C.

§ 1957(a).         As part of the plea agreement, Jefferson agreed to

pay    $12,947,886.77       in    restitution.            To    facilitate    compliance

with       the    restitution     order,         the    district      court    permitted

Jefferson        to    remain    on   bond       pending        sentencing,    with      the

condition that he report any money transfers over $25,000 to the

Internal Revenue Service.             While on release, Jefferson failed to

report multiple $100,000 money transfers, withdrew substantial

amounts of cash, and made thirty-three transfers just under the

reporting         threshold.          Additionally,            for    the    purpose      of

chartering        a    flight    to   England,         Jefferson      obtained     a    fake

driver’s license and provided a copy of that license to the

charter company.

       Based      on   Jefferson’s     conduct          while    on   release,     he    was

charged with and pleaded guilty to unlawful transfer of a false

identification document, in violation of 18 U.S.C. § 1028(a)(1),

(b)(1), and aggravated identity theft, in violation of 18 U.S.C.

§ 1028A(a)(1). *         Jefferson’s four convictions were joined for




       *
       The indictment also charged Jefferson with obstruction of
an official proceeding, in violation of 18 U.S.C. § 1512(c)(2),
(Continued)
                                             3
purposes of sentencing, and the district court imposed an upward

variant sentence totaling 240 months.                            In these consolidated

appeals, Jefferson challenges his sentence, arguing that (1) the

district     court    erred       in     applying      a    two-level         obstruction     of

justice      adjustment          under    U.S.     Sentencing           Guidelines     Manual

§ 3C1.1 (2013), (2) the district court erred in denying a two-

level   reduction      for        acceptance      of       responsibility        under     USSG

§ 3E1.1(a),     and    (3)        the    240-month         sentence      is    substantively

unreasonable.        We affirm.

       “We   review        the     reasonableness           of    a     sentence     under     a

deferential     abuse-of-discretion               standard,        first      ensuring     that

the district court committed no significant procedural error,

such as failing to calculate (or improperly calculating) the

Guidelines range.”           United States v. Cox, 744 F.3d 305, 308 (4th

Cir. 2014) (internal quotation marks and brackets omitted).                                  In

reviewing the district court’s application of the Guidelines and

its imposition of a sentencing enhancement, “we review factual

findings for clear error and legal conclusions de novo.”                               United

States v. Adepoju, 756 F.3d 250, 256 (4th Cir. 2014).                                    If we

find    no     procedural          error,        we     consider         the     substantive

reasonableness        of    the     sentence          under      “the    totality     of     the



but this charge was dismissed as part                              of    Jefferson’s       plea
agreement in Case No. 3:14-cr-00066-JAG-1.



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circumstances.”       Gall v. United States, 552 U.S. 38, 51 (2007).

Where   the     sentencing     court    imposed       a   variant       sentence,       we

determine “whether the sentencing court acted reasonably both

with respect to its decision to impose such a sentence and with

respect   to    the   extent    of    the   divergence        from   the    sentencing

range.”       United States v. Washington, 743 F.3d 938, 944 (4th

Cir. 2014) (internal quotation marks omitted).

      The district court here applied a two-level obstruction of

justice adjustment based on Jefferson’s money transactions while

on   release    pending   sentencing.            A    two-level      obstruction        of

justice adjustment is appropriate:

      If (1) 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 (2) the obstructive conduct related to
      (A) the defendant’s offense of conviction and any
      relevant conduct, or (B) a closely related offense
      . . . .

USSG § 3C1.1.         As “[o]bstructive conduct can vary widely in

nature, degree of planning, and seriousness,” “the conduct to

which   [the]     enhancement        applies     is     not   subject      to    precise

definition,” and a sentencing court must compare the defendant’s

conduct to the examples of qualifying and nonqualifying conduct

listed in Application Notes Four and Five, respectively.                               USSG

§ 3C1.1   cmt.     n.3.        Included     in    the     nonexhaustive         list    of

qualifying     conduct    is    “conduct        prohibited     by    obstruction        of


                                            5
justice      provisions        under         Title       18,     United    States     Code,”       and

“failing to comply with . . . an order to repatriate property

issued pursuant to 21 U.S.C. § 853(p).”                                    USSG § 3C1.1 cmt.

n.4(I)-(J).

       Jefferson’s          money       transfers,          which       violated      the     court-

ordered reporting requirement and dissipated assets intended for

restitution, not only impeded the prosecution and sentencing of

Jefferson’s          convictions             in      Case        No.      3:13-cr-00221-JAG-1,

arguably resulting in a violation of 18 U.S.C. § 1512(c)(2), but

also constituted conduct analogous to a defendant’s failure to

comply       with    an     order       to    repatriate          property.         Accordingly,

Jefferson engaged in conduct sufficient to permit the district

court to apply the obstruction of justice adjustment.

       The      adjustment         is        only        applicable,       however,        where    a

defendant “willfully” engages in conduct that obstructs justice.

USSG § 3C1.1; but see United States v. Nurek, 578 F.3d 618, 623

(7th     Cir.       2009)     (when       imposing          an    obstruction         of    justice

adjustment, “the sentencing judge is not required to parrot back

the ‘willful’ language of the guideline”).                                Where the sentencing

court is cognizant of § 3C1.1’s intent element and the totality

of     the    record        supports         the     conclusion         that    the        defendant

willfully       engaged       in    the       obstructive         conduct,     the       sentencing

court’s       application          of    the        adjustment         contains     an      implicit

finding of defendant’s willfulness.                            United States v. Dale, 498

                                                     6
F.3d 604, 609 (7th Cir. 2007).                   This is particularly true where

the defendant’s conduct “is directly and inherently obstructive–

that is, where the defendant engages in behavior that a rational

person    would       expect    to   obstruct      justice.”         United        States v.

Reeves, 586 F.3d 20, 23 (D.C. Cir. 2009) (internal quotation

marks omitted).

        Here,    the     district        court    acknowledged          the    willfulness

requirement       when     it     read    the     language     of       the   obstruction

Guideline into the record.                Although the district court did not

use the word “willful” when later ruling on the adjustment, it

made a series of statements regarding Jefferson’s intent when

engaging    in    the     conduct.         Most    notably,       the    district     court

stated that Jefferson “took advantage of” the $25,000 reporting

threshold and that the money transfers amounted to “thumbing

your nose at the victims in this case.”                       J.A. 548, 564.            The

district        court’s        statements,        combined     with       its      findings

regarding       the     grandiose        nature     and    extent        of   Jefferson’s

monetary transactions, allow us to conclude that the district

court    implicitly        found     that    Jefferson       intended         to   obstruct

justice when transferring the money.                      Accordingly, the district

court did not err when it applied the two-level obstruction of

justice adjustment.

      As Jefferson concedes, if the district court did not err in

its   obstruction         of    justice     analysis,      then     it    also     properly

                                             7
denied a two-level reduction for acceptance of responsibility.

See USSG § 3E1.1 cmt. n.4 (“Conduct resulting in an enhancement

under   § 3C1.1         (Obstructing        or     Impeding      the       Administration        of

Justice)         ordinarily         indicates         that     the     defendant     has        not

accepted responsibility for his criminal conduct.”).                                Therefore,

we conclude that the district court did not commit procedural

error when determining Jefferson’s Guidelines range.

      Based on our review of the record and the parties’ briefs,

we further conclude that Jefferson’s above-Guidelines sentence

is substantively reasonable.                     The district court did not abuse

its discretion in determining that a variance was justified by

the   18     U.S.C.      §    3553(a)       factors,         including      the    nature       and

circumstances of the offense, the seriousness of the offense,

and the need to deter criminal conduct, both Jefferson’s and

that of others.               See § 3553(a)(1)-(2)(B).                 The district court

adequately supported its decision to vary, as well as the extent

of    the    variance,         by    relying          on   (1)   Jefferson’s         continued

fraudulent         conduct      after       the       arrest     and       sentencing      of     a

compatriot        in    the    tax    fraud       scheme,      (2)     Jefferson’s        conduct

while       on    release       pending      sentencing,             and    (3)    the    impact

Jefferson’s        conduct      had    on     the      integrity       of    the   tax     credit

program he defrauded.

      We therefore affirm the judgment of the district court.                                    We

dispense         with    oral       argument       because       the       facts    and    legal

                                                  8
contentions   are   adequately   expressed   in   the   materials   before

this court and argument would not aid the decisional process.



                                                                AFFIRMED




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