                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 16-4355


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

EDGAR EUGENE FOXX,

                Defendant - Appellant.



                            No. 16-4371


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CONTINA RENA FOXX,

                Defendant - Appellant.



Appeals from the United States District Court for the Western
District of Virginia, at Lynchburg.     Norman K. Moon, Senior
District Judge. (6:14-cr-00013-NKM-1; 6:14-cr-00013-NKM-2)


Submitted:   February 17, 2017            Decided   March 14, 2017


Before KEENAN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.


Dana R. Cormier, DANA R. CORMIER, P.L.C., Staunton, Virginia; Fay
F. Spence, First Assistant Federal Public Defender, Roanoke,
Virginia, for Appellants. Caroline D. Ciraolo, Principal Deputy
Assistant Attorney General, S. Robert Lyons, Chief, Criminal
Appeals & Tax Enforcement Policy Section, Gregory Victor Davis,
Katie Bagley, Tax Division, DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     Following a jury trial, Edgar Foxx was convicted of making a

false statement on a tax return, three counts of failure to file

a tax return, and theft of government property. The district court

sentenced him to 41 months’ imprisonment.                Contina Foxx, his wife,

was convicted of theft of government property and making a false

statement in connection with an application for federal health

care benefits.        The district court sentenced her to 30 months’

imprisonment.       On appeal, they contend that the district court

erred by denying Edgar’s motion for government funds to hire a

forensic accountant and denying Contina’s motion in limine in which

she sought to exclude evidence of her prior convictions.                         They

also argue that the district court erred in determining the amount

of tax loss attributable to them at sentencing.                We affirm.

     The district court is authorized to provide funds for a

defendant to hire an expert upon “a preliminary showing” that such

services   are   necessary     to    an       adequate    defense.        18   U.S.C.

§ 3006A(e)(1)       (2012).    This    court       reviews    for    an    abuse   of

discretion    the    denial   of    expert      services,    United       States   v.

Hartsell, 127 F.3d 343, 349 (4th Cir. 1997), and any error in the

determination is reversible only upon a showing that the denial of

expert services was prejudicial to the defense.                United States v.

Perrera, 842 F.2d 73, 77 (4th Cir. 1988).                  We have reviewed the

Foxxes’ arguments in support of the provision of funds and conclude

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that the district court did not abuse its discretion in denying

the request for funds.              Notably, deduction and expense amounts

were not relevant to the determination of the Foxxes’ culpability

on   the   charged      offenses,      and   they   failed      to    demonstrate       any

prejudice.        See 26 U.S.C. § 6012 (2012); see also Hartsell, 127

F.3d at 349.

      To    the     extent      that   the     Foxxes     assert     that    a    forensic

accountant could have assisted in determining the amount of loss

and restitution for sentencing purposes, we note that the Foxxes

did not renew their request for funds post-conviction, despite the

district court expressly stating that it would be willing to

reconsider its ruling after the Foxxes received the discovery

materials from the Government.

      Next, Contina challenges the district court’s denial of her

motion     in    limine    in    which   she     sought    to   exclude,         on   cross-

examination, evidence of her prior convictions of seven counts of

false statement in connection with obtaining welfare assistance.

See Va. Code Ann. § 63.2-502 (2007) (“Any person who knowingly

makes any false application for public assistance . . . shall be

guilty of perjury.”).            She argues that the prejudicial impact of

the evidence outweighed its probative value.                          However, as the

district        court   correctly      concluded,       where   a    prior   conviction

involves an act of dishonesty, Fed. R. Evid. 609(a)(2) does not

provide    for     a    weighing    of   the     prejudicial        effect   versus     the

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probative value of the evidence, but rather evidence of these

crimes is automatically admissible.             United States v. Harper, 527

F.3d 396, 408 (5th Cir. 2008) (“Crimes qualifying for admission

under Rule 609(a)(2) are not subject to Rule 403 balancing and

must   be    admitted.”).       In    fact,    the    district   court   “has   no

discretion to exclude evidence that qualifies” for admission under

Rule 609(a)(2).         United States v. Kelly, 510 F.3d 433, 438 (4th

Cir. 2007) (citing United States v. Cunningham, 638 F.2d 696, 698

(4th Cir. 1981)).          Accordingly, we affirm the district court’s

determination that evidence of Contina’s prior convictions was

admissible without consideration of prejudicial effect.

       Lastly, the Foxxes argue that the district court erred by not

taking into account their evidence presented at sentencing as to

the actual amount of taxes they would have owed had they filed tax

returns, but rather using an estimation of tax loss provided by

the Sentencing Guidelines.            During the sentencing hearing, the

Foxxes      presented    the   testimony       of    Melissa   Wilson,   who,   in

preparation for the sentencing hearing, had prepared income tax

returns for the Foxxes for the years 2008 through 2011.                         She

calculated the Foxxes’ total tax liability for those years to be

$35,748.

       A special agent with the Internal Revenue Service testified

that he computed the Foxxes’ gross income by reference to the

records of      receipts    from     various    scrap    metal   companies.     He

                                         5
determined that the Foxxes’ tax liability was $172,000 by applying

the formula in the Sentencing Guidelines, which provides that, in

the absence of adequate records, tax loss can be determined as 20

percent of gross income.            See U.S. Sentencing Guidelines Manual

§ 2T1.1(c)(2)(Note         (A))    (2015).        The    court   expressly    found

Wilson’s testimony incredible and adopted the tax loss estimate

provided by the Guidelines.

     When    reviewing      the    district       court’s    application     of    the

Sentencing Guidelines, this court reviews legal conclusions de

novo and factual determinations for clear error.                   United States v.

Manigan,     592    F.3d    621,    626    (4th    Cir.     2010).     Credibility

determinations are afforded “great deference.”                   United States v.

Layton,     564    F.3d    330,    334    (4th    Cir.    2009).      The   court’s

determination of the amount of loss for sentencing purposes is a

factual finding, which this court reviews for clear error.                   United

States v. Mehta, 594 F.3d 277, 281 (4th Cir. 2010).

     The tax loss due to the failure to file a tax return is “the

amount of tax that the taxpayer owed and did not pay.”                            USSG

§ 2T1.1(c)(2).      Tax loss “shall be treated as equal to 20% of the

gross income . . . unless a more accurate determination of the tax

loss can be made.”         USSG § 2T1.1(c)(2)(Note (A)).

     The Foxxes contend that Wilson’s testimony and her revised

tax returns provided more accurate information as to their tax

loss.     However, Wilson admitted that her computations were based

                                           6
on a number of assumptions and that the returns she prepared “at

best, were just a guesstimate.”

     While the district court is instructed to reasonably estimate

the tax loss and to account for any unclaimed deduction, credit or

exemption,    the    defendant       has    the   burden   of    establishing       his

eligibility    for     the     deduction,         exemption     or    credit   by    a

preponderance of the evidence, and “the credit, deduction, or

exemption [must be] reasonably and practically ascertainable.”

USSG 2T1.1, comment. (n.3).                 Also, the district court is not

required to accept calculations of tax loss that it finds to be of

“doubtful reliability.”             United States v. Montgomery, 747 F.3d

303, 313-14 (5th Cir. 2014); see United States v. Collins, 685

F.3d 651, 659 (7th Cir. 2012).

     We have reviewed the record and have determined that the

district court did not clearly err in determining that Edgar’s

business     expenses        were     not       “reasonably     and     practically

ascertainable” USSG § 2T1.1, comment. (n.3), and in therefore

estimating the tax loss as 20 percent of gross income.                     See United

States v. Psihos, 683 F.3d 777, 783 (7th Cir. 2012) (holding that

district   court     permitted       to    reject   evidence     as   to   unclaimed

deductions where taxpayer provided no documentation).                   Further, we

conclude that the calculation of the amount of tax loss was not

clearly erroneous.



                                            7
     Accordingly, we affirm the district court’s judgments.     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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