US v. Billy Jefferson, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:13-cr-00221-JAG-1. Copies to all parties and the district court. [999640614]. [14-4759, 14-4760]

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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UNPUBLISHED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:

Before WYNN, DIAZ, and FLOYD, Circuit Judges.

August 14, 2015

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
§ 1957(a).
pay

monetary

the

Jefferson

in

violation

of

18

U.S.C.

As part of the plea agreement, Jefferson agreed to

$12,947,886.77

with

transactions,

in

restitution
to

remain

restitution.
order,
on

the

bond

To

facilitate

district

pending

compliance

court

sentencing,

permitted
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.

chartering

a

flight

Additionally,
to

England,

for

Jefferson

the

purpose

obtained

a

of
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
justice

court

erred

applying

under

adjustment

in

U.S.

a

two-level

Sentencing

obstruction

Guidelines

of

Manual

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

reduction

§ 3E1.1(a),

for
(3)

and

acceptance
the

unreasonable.

the

240-month

responsibility
sentence

is

under

USSG

substantively

We affirm.

“We

of

review

deferential

reasonableness

abuse-of-discretion

of

a

standard,

sentence

first

under

ensuring

a

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

reasonableness

of

the

error,

we

sentence

consider
under

“the

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

4

of

the

substantive

totality

of

Jefferson’s

the

plea

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circumstances.”
Where

the

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

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

range.”

the

extent

of

the

divergence

from

the

sentencing

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.
§ 3C1.1

cmt.

qualifying

n.3.

conduct

Included
is

in

“conduct

5

the

nonexhaustive

prohibited

by

USSG

list

of

obstruction

of

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provisions

under

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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

willfully

record

court’s

supports

engaged

in

application

the

the
of

conclusion

obstructive

the

conduct,

adjustment

finding of defendant’s willfulness.
6

that

the
the

contains

an

defendant
sentencing
implicit

United States v. Dale, 498

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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

requirement

district

when

it

court

read

the

Guideline into the record.

acknowledged

the

willfulness

language

the

obstruction

of

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.

district

with

regarding

court’s
the

statements,

grandiose

combined

nature

and

extent

its
of

The

findings

Jefferson’s

monetary transactions, allow us to conclude that the district
court

implicitly

found

that

Jefferson

justice when transferring the money.

intended

to

obstruct

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,
7

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

Justice)

(Obstructing

ordinarily

or

Impeding

indicates

that

the

the

Administration

defendant

accepted responsibility for his criminal conduct.”).

has

of
not

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,

fraudulent

conduct

compatriot

in

while

by

release

on

Jefferson’s

the

relying

after
tax

conduct

had

the

fraud

pending
on

on

(1)

arrest
scheme,

and
(2)

sentencing,
the

Jefferson’s

sentencing
Jefferson’s

and

integrity

continued

(3)

of

the

of

a

conduct

the

impact

tax

credit

program he defrauded.
We therefore affirm the judgment of the district court.
dispense

with

oral

argument

because
8

the

facts

and

We

legal

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are

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expressed

in

the

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

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