Filed: Aug. 14, 2015
Latest Update: Mar. 02, 2020
Summary: ON REHEARING UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4759 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BILLY GENE JEFFERSON, JR., Defendant -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 3
Summary: ON REHEARING UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4759 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BILLY GENE JEFFERSON, JR., Defendant -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..
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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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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)
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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
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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
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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
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contentions are adequately expressed in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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