UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4099

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ERIK DEHLINGER,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Florence. Terry L. Wooten, District Judge. 

(4:06-cr-00900-TLW-1)

Argued: January 29, 2010 Decided: March 5, 2010

Before MOTZ, GREGORY, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

ARGUED: Michael Louis Minns, Rain Levy Minns, THE MINNS LAW 

FIRM, Houston, Texas, for Appellant. Gregory Victor Davis, 

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for 

Appellee. ON BRIEF: Ashley Blair Arnett, THE MINNS LAW FIRM, 

Houston, Texas; John M. Ervin, III, LAW OFFICE OF JOHN M. ERVIN, 

III, Darlington, South Carolina, for Appellant. John DiCicco, 

Acting Assistant Attorney General, Alan Hechtkopf, Tax Division, 

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; W. Walter 

Wilkins, United States Attorney, Columbia, South Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

On August 22, 2006, Dr. Erik Dehlinger (“Dehlinger”) was 

indicted in the United States District Court for the District of 

South Carolina on one count of conspiracy to defraud the United 

States in violation of 18 U.S.C. § 371 and three counts of 

willfully filing false income tax returns in violation of 26 

U.S.C. § 7206. The matter proceeded to trial and a jury found 

Dehlinger not guilty on the conspiracy charge and guilty as to 

the three tax evasion charges. On January 29, 2009, Dehlinger 

was sentenced to 42 months imprisonment. He now appeals his 

conviction and sentence. We affirm.

I.

From 1997 to 2002, Dehlinger was an emergency room doctor 

at McLeod Hospital in Florence, South Carolina. In 1997 and 

1998, Dehlinger engaged the services of Hoyt Wayne Terry 

(“Terry”), a certified public accountant, to prepare his income 

tax returns. In 1998, Terry calculated Dehlinger’s adjusted 

gross income to be $301,091, with an income tax liability of 

$85,188, and self-employment taxes of $16,342. Dehlinger had 

previously paid $49,510 of his tax liability and therefore owed 

an additional $52,200 to the Internal Revenue Service (“IRS”). 

Unbeknownst to Terry, however, Dehlinger never filed this, or 

the previous year’s, tax return. In neither of these years did 
3

Dehlinger report any financial information to Terry regarding a 

partnership or subchapter S corporation in which he had an 

interest. 

Dehlinger claimed that his good fortune in avoiding the 

above-described tax liability resulted from his introduction by 

his co-worker, Dr. Raghavan Chari, to the Anderson’s Ark and 

Associates’ (“AAA”) programs. AAA purported to serve as a tax, 

retirement planning, and investment company based in Costa Rica. 

AAA sold audiotapes and books and conducted seminars, providing 

advice on how to, allegedly legally, avoid personal income tax

liabilities. In March 1999, Dehlinger purchased an AAA audiotape 

series entitled “Gateway to Financial Freedom,” delivered by 

Guardian Management, an AAA affiliate. 

Following this initial purchase, Dehlinger used several 

other programs marketed by AAA, including both the “Look Back” 

and “Look Forward” series. AAA and Guardian Management designed 

“Look Back” to enable its users to both avoid tax liabilities 

for the current year and also to “recapture” taxes paid in the 

two years prior to usage of the program. Under the “Look Back” 

program, a user would create a partnership with an AAA affiliate 

such that the customer held a 95% interest and the AAA affiliate 

held the remaining five percent interest. AAA would arrange for 

an entity known as “La Maquina Blanca” to make a loan directly 

to the AAA affiliate minority partner, in exchange for the 
4

client’s execution of a promissory note. The partnership would 

then use the loan funds to make a guaranteed payment to the AAA 

affiliate minority partner, allegedly for consulting and 

marketing services. In accordance with Section 707(c) of the 

Internal Revenue Code, a guaranteed payment to a partner for the 

performance of services constitutes a deductible ordinary 

business expense on the partnership’s tax returns. 26 U.S.C. § 

707(c). Because the partnership created by AAA reported zero or 

at most minimal income, the guaranteed payment resulted in a net 

loss for the partnership, which would then pass through to each 

of the partners in proportion to their ownership interests. The 

partners could use the loss to avoid paying taxes for the 

current year and to “recapture” taxes paid for the two preceding 

years.

In contrast to the “Look Back” program, the “Look Forward” 

program sought to avoid current income tax liability. Under the 

plan, AAA created a limited liability corporation (“LLC”) for 

each client. The partnership created through the “Look Back” 

program would provide consulting services to the LLC. The LLC 

would then make a “consulting fee” payment to the partnership’s 

bank account, over which the client had sole control. Again, the 

losses would “pass-through” to the client, resulting in losses 

on his or her income tax returns.
5

In reality, neither of these programs operated as it was 

purported to operate. Baton Venture, the partnership AAA created 

for Dehlinger as a part of the “Look Back” program, allegedly 

received a loan from La Maquina Blanca of $650,000 in time to 

make a guaranteed payment in that amount to Mason Advertising, 

the AAA-created minority partner, by December 30, 1998. In fact, 

Dehlinger neither signed the promissory note nor paid the loan 

fees until March 1999, both prerequisites for the funding of the 

loan, according to the note. Rather, Dehlinger backdated his 

signature to December 20, 1998. In addition, Dehlinger never 

made a payment on the loan or granted the creditor a security 

interest even though he signed both the loan agreement and 

promissory note. Finally, despite claiming a partnership loss of 

$646,594 because of the guaranteed payment, there is no record 

of such a payment made to Mason Advertising. 

All in all, the partnership losses translated to a negative 

$335,167 adjusted gross income for Dehlinger in 1998 and a 

refund of nearly $45,000 when computed by the Guardian 

Management Company. Dehlinger filed a Form 1045 in that year, 

prepared by George Benoit (“Benoit”), a Guardian Management 

employee. This return sought refunds of $34,135 and $34,442 for 

taxes paid in 1996 and 1997. Dehlinger filed this return rather 

than the one Terry had previously prepared. Dehlinger’s 1999 

Form 1040, also prepared by Benoit, reported an income of 
6

$240,164 from his medical practice. Again, however, Dehlinger 

reported no taxable income and no tax liability. On his 2000 

Form 1040, Dehlinger again reported no taxable income and no tax 

liability. Dehlinger reported a partnership loss of $242,670 due 

to a $250,000 guaranteed payment to Mason Advertising, resulting 

in no tax liability despite an income from his medical practice 

of $240,164. In February 2002, Dehlinger used an AAA-affiliated

CPA, Tara LaGrand (“LaGrand”), to prepare his 2001 tax returns.

LaGrand also amended Dehlinger’s 2000 tax return, using the 

“Look Back” program to recapture taxes already paid.

On August 22, 2006, a grand jury sitting in the District of 

South Carolina returned a four-count indictment charging 

Dehlinger with one count of conspiracy to defraud the United 

States, in violation of 18 U.S.C. § 371, and three counts of 

making and subscribing a false return, in violation of 26 U.S.C. 

§ 7206(1). Dehlinger pled not guilty on all counts.

At trial, Dehlinger testified on his own behalf, claiming 

that Dr. Chari had convinced him that the programs sold by AAA 

were legitimate means of avoiding income taxes. Dehlinger denied 

knowing that the various components of the program were 

illegitimate. He claimed that at the time he filed the returns, 

he did not believe that he was committing fraud by taking 

deductions related to the AAA programs. He also asserted that he

relied on his tax return preparers and the AAA principals, 
7

including LaGrand, in filing the returns that reported zero tax 

due and owed.

Following a five-day jury trial, the jury convicted 

Dehlinger on three counts of making and subscribing a false 

return, and acquitted him on the conspiracy to defraud count. On 

January 7, 2009, the district court sentenced Dehlinger to 42 

months’ incarceration, to be followed by one year of supervised 

release. The court also ordered him to pay restitution of 

$363,207, a fine of $5,000, and a $300 special assessment.

II.

Dehlinger challenges his conviction principally on the 

ground of ineffective assistance of counsel, claiming that his 

attorney had a conflict of interest that impaired his 

representation of Dehlinger. Dehlinger also challenges the 

district court’s (1) denial of his motion for a mistrial after a 

witness volunteered testimony previously ruled to be 

inadmissible hearsay; (2) admission of testimony from an 

undercover IRS agent regarding his experience with AAA programs;

and (3) calculation of his base offense level and imposition of 

a sentencing guidelines enhancement for obstruction of justice. 

We address these issues in turn.
8

A.

Whether defendant’s trial counsel had a conflict of 

interest presents a mixed question of law and fact, reviewed de

novo by this court. See Mickens v. Taylor, 240 F.3d 348, 360 

(4th Cir. 2001) (en banc), aff’d, 535 U.S. 162 (2002); Williams 

v. French, 146 F.3d 203, 212 (4th Cir. 1998). 

This court considers ineffective assistance claims on 

direct appeal only if it “‘conclusively appears’ from the record 

that defense counsel did not provide effective representation.” 

United States v. Gastiaburo, 16 F.3d 582, 590 (4th Cir. 1994) 

(citations omitted); United States v. Baldovinos, 434 F.3d 233, 

239 (4th Cir. 2006); United States v. Richardson, 195 F.3d 192, 

198 (4th Cir. 1999); United States v. King, 263 Fed. App’x 332, 

333 (4th Cir. 2008). The reason for this restriction is that, 

generally, a motion under 28 U.S.C. § 2255 in the district court 

is preferable than direct appeal, so that the parties may 

adequately develop the record. Gastiaburo, 16 F.3d at 590 

(citations omitted); United States v. King, 119 F.3d 290, 295 

(4th Cir. 1997).

The Supreme Court has held that criminal defendants have a 

Sixth Amendment right to conflict-free representation by 

counsel. Cuyler v. Sullivan, 446 U.S. 335, 345-50 (1980); 

Holloway v. Arkansas, 435 U.S. 475 (1978). A defendant seeking a 

new trial must show “‘some real conflict of interest . . . 
9

resulting from [overlapping] representation [of two clients]’” 

to succeed on this Sixth Amendment claim. United States v. 

Atkinson, 565 F.2d 1283, 1284 (4th Cir. 1977) (quoting United 

States v. Lovano, 420 F.2d 769, 772 (2d Cir. 1970)). The mere 

fact of overlapping representation is insufficient to create a 

Sixth Amendment violation. See id. Rather, a defendant must 

establish that (1) his attorney labored under “an actual 

conflict of interest” that (2) “adversely affected his lawyer's 

performance.” Sullivan, 446 U.S. at 348; Strickland v. 

Washington, 466 U.S. 668, 691-92 (1984); United States v. Stitt, 

552 F.3d 345, 350 (4th Cir. 2008), cert. denied, 130 S. Ct. 65

(2009); United States v. Tatum, 943 F.2d 370, 375 (4th Cir. 

1991). 

Dehlinger claims that his attorney, Scott Engelhard, Esq.

(“Engelhard”) had a conflict that arose from the latter’s 

representation of him, LaGrand (the AAA-affiliated CPA who 

prepared his 2001 tax returns and amended his 2000 tax returns), 

and Collis Redd (“Redd”), an AAA tax planner. According to 

Dehlinger, Engelhard refused to call LaGrand as a witness during 

his trial, even though LaGrand could have offered exculpatory 
10

evidence, because Engelhard’s loyalties were divided between the

two clients.1

Here, although Dehlinger raises more than a colorable claim 

that Engelhard’s loyalties were impermissibly divided, a review 

of the record shows that the facts are not conclusive. It is not 

for this court to determine the character, duration, and extent 

of Engelhard’s representation of Dehlinger, LaGrand, and Redd,

in the first instance, and whether his representation of these 

individuals created actual conflict that adversely affected his 

representation of Dehlinger. Indeed, we decline to comment on 

these issues. Although, at Dehlinger’s insistence, the district 

court conducted limited, non-evidentiary post-verdict 

proceedings to examine Dehlinger’s allegations against 

Englehard, we agree with the court’s conclusion that the facts 

and circumstances presented by this record should be evaluated 

by a district judge acting on an adequate factual record in an 

orderly post-conviction proceeding rather than on the basis of 

dueling affidavits and declarations. Accordingly, we hold that 

Dehlinger has not “conclusively” established the existence of an 

 1 According to Dehlinger, LaGrand could have testified that 

her clients, Dehlinger included, believed that AAA’s tax 

strategies were legal. Ostensibly, LaGrand’s testimony would 

have contradicted the government’s evidence of Dehlinger’s 

willful violation of the tax laws. Dehlinger further argues that 

LaGrand’s testimony previously exculpated defendants in related 

and similar prosecutions in other federal districts. 
11

actual conflict of interest that adversely affected Engelhard’s 

representation of Dehlinger.2

B.

We review a district court’s refusal to grant a mistrial 

for abuse of discretion. United States v. West, 877 F.2d 281, 

287-88 (4th Cir. 1989). An abuse of discretion is found “only 

under the most extraordinary of circumstances” and requires that 

a defendant have experienced prejudice. United States v. 

Dorlouis, 107 F.3d 248, 257 (4th Cir. 1997). A defendant cannot 

prove prejudice if a jury “could make individual guilt 

determinations by . . . appraising the independent evidence 

against each defendant,” but rather this court must find that 

there is a “reasonable possibility” that the error influenced 

the jury’s verdict. United States v. Porter, 821 F.2d 968, 972 

(4th Cir. 1987); United States v. Seeright, 978 F.2d 842, 849 

(4th Cir. 1992). A district court can generally prevent 

prejudice to a defendant by “a cautionary or limiting 

instruction, particularly if the danger of prejudice is slight 

in view of the overwhelming evidence of guilt.” United States 

v. Ham, 998 F.2d 1247, 1254 (4th Cir. 1993) (quoting United 

States v. Masters, 622 F.2d 83, 87 (4th Cir. 1980); see also

 2 In light of our holding, we deny Dehlinger’s motion to 

file a supplemental brief.
12

United States v. Johnson, 610 F.2d 194, 196-97 (4th Cir. 1979)

(“The general rule is that if evidence which may have been taken 

in the course of a trial be withdrawn from the consideration of 

the jury by the direction of the presiding judge, that such 

direction cures any error which may have been committed by its 

introduction.”).

Here, the district court did not abuse its discretion in 

denying Dehlinger’s motion for a mistrial after William Cauthen, 

Jr. (“Cauthen”) offered testimony that the court had previously 

deemed inadmissible and subsequently ordered stricken. The 

district court had ruled that Cauthen could not characterize 

anything on the AAA website as “right wing or fringe.” In 

response to the prosecutor’s inquiry of his “impression of the 

information that [he] saw on the AAA website,” however, Cauthen 

stated that he “thought the information that I saw there was 

sort of fringe material, right wing material, and that 

potentially it could be fraud.” Upon Dehlinger’s objection and 

motion for a mistrial, the district court ordered the statement 

stricken from the record. The district court refused to grant a 

mistrial. During final instructions the district court reminded 

the jury that “if any evidence was stricken from the record, 

[they] should not consider that evidence in making [their] 

decision.”
13

Cauthen’s statement was one line in a four-day trial 

replete with evidence establishing Dehlinger’s guilt, including 

signed fraudulent tax returns. The district court quickly 

ordered the statement stricken and, before deliberations, 

reminded the jury not to consider such evidence. See United 

States v. Harris, 165 F.3d 1062, 1066 (6th Cir. 1999) (affirming 

the district court’s denial of a motion for mistrial after a 

brief reference to a prior arrest where “the district court gave 

an immediate and clear limiting instruction”); Black v. Shultz, 

530 F.3d 702, 707 (8th Cir. 2008) (affirming the district 

court’s refusal to grant a mistrial given the fact that the 

court “gave a curative instruction” after a single statement was 

made in violation of the court’s order). And although Dehlinger 

claims before us that the statement was devastating to his 

defense, he does not state how the statement made about the AAA 

website prejudiced him or what impact it likely had on the 

jury’s determination of his guilt. See United States v. 

Baumgarten, 517 F.2d 1020, 1030 (8th Cir. 1975) (denying 

defendant’s motion for a mistrial where witness’ brief reference 

to defendant’s previous arrest was “of very little 

significance”); United States v. Butler, 71 F.3d 243, 255 (7th 

Cir. 1995) (holding that a prosecutor’s lone comment did not 

warrant a mistrial as it “was a single, isolated, indirect 

remark”). 
14

C.

The decision whether to admit evidence is properly within a 

district court’s discretion; thus, we review a district court’s 

admission of evidence for abuse of discretion. United States v. 

Hodge, 354 F.3d 305, 312 (4th Cir. 2004); United States v. 

Lancaster, 96 F.3d 734, 744 (4th Cir. 1996). A district court 

abuses its discretion “only when it can be said that [it] acted 

arbitrarily or irrationally in admitting evidence,” something 

that occurs only under “the most extraordinary of 

circumstances.” United States v. Williams, 445 F.3d 724, 732 

(4th Cir. 2006) (citing United States v. Simpson, 910 F.2d 154, 

157 (4th Cir. 1990)); see also United States v. Heater, 63 F.3d 

311, 325 (4th Cir. 1995) (“[I]n order to find a district court's 

error harmless, we need only be able to say ‘with fair 

assurance, after pondering all that happened without stripping 

the erroneous action from the whole, that the judgment was not 

substantially swayed by the error.’”) (quoting United States v. 

Nyman, 649 F.2d 208, 211–12 (4th Cir. 1980)).

1.

Fed. R. Evid. 701 allows lay witnesses to express opinions 

that are “(a) rationally based on the perception of the witness, 

(b) helpful to a clear understanding of the witness' testimony 

or the determination of a fact in issue, and not based on 

scientific, technical, or other specialized knowledge within the 
15

scope of [expert testimony].” In addition, courts have held 

that lay testimony generally requires that the opinion offered 

be “the product of reasoning processes familiar to the average 

person.” See United States v. Garcia, 413 F.3d 201, 215 (2d. 

Cir. 2005); United States v. Cooks, 589 F.3d 173, 180 (5th Cir. 

2009). 

Dehlinger argues that the district court impermissibly 

allowed lay witnesses to offer “expert testimony” designed to 

show that he possessed a guilty state of mind during his 

interactions with AAA. At trial, the district court permitted 

Cauthen to offer testimony about the AAA website. As just 

discussed, however, the court ordered testimony characterizing 

the website as “fringe,” stricken from the record and instructed 

the jury to disregard it. The court also permitted Special Agent 

Mike Preiss, who conducted an undercover investigation into the 

operation of AAA, to testify about investors’ relationships with 

AAA, specifically focusing on Dehlinger. In permitting such 

testimony, the court reasoned that the testimony would “provide 

some evidence for the jury to consider in terms of what actually 

went on at [AAA] and what the process was.” As a witness, Preiss 

compared the partnership documents AAA sent him while he was 

undercover with those that Dehlinger had obtained from AAA and 

testified to his understanding of how the AAA programs worked, 

and specifically, that he was to receive about $300,000 in tax 
16

savings. Preiss also noted the existence of similar statements 

about tax benefits in an executive summary AAA sent to 

Dehlinger. Preiss further discussed and compared plan documents

that he had received from AAA with those Dehlinger had in his 

possession. To his knowledge, Preiss indicated that the 

partnerships and companies created by AAA conducted no business 

of their own, as indicated in their income tax returns which 

listed no gross income or receipts and included only minimal 

expenditures, other than the guaranteed payment at issue. And 

even though the partnership agreement explicitly set out the 

various responsibilities of each partner to the agreement, the 

partners never performed any of these duties. Priess testified 

that, based on his experience with AAA, he was not obligated to 

repay the loan for which he had cosigned and that was 

subsequently used to fund the guaranteed payment to his AAAaffiliated partner. 

Dehlinger claims that Cauthen’s and Preiss’s testimony

amounted to impermissible expert testimony because their

statements demonstrate that Dehlinger knew the information on 

the AAA website was illegitimate and that Dehlinger had the same 

guilty state of mind as Preiss did during his interactions with 

AAA, respectively. This argument fails. The testimony at issue 

in this case is not, in either purpose or effect, that of an 

expert. Both witnesses merely offered their opinion of their 
17

individual experiences with AAA, making deductions and drawing 

inferences that an “average person” would similarly be capable 

of in an identical situation. Neither Cauthen nor Priess 

testified about Dehlinger’s mental state or whether he knowingly 

violated the tax laws. Cauthen limited his statements only to 

his personal impressions of the AAA website, which were later 

stricken, as previously discussed. Preiss’s testimony was 

restricted to his own knowledge of, and experience with, AAA. He 

offered his personal impressions of AAA and the similarities 

inherent in the documents AAA provided to him and those 

Dehlinger received. He did not, as Dehlinger would have us 

believe, proffer testimony suggesting that Dehlinger himself 

possessed a felonious intent. He never testified or even hinted 

that, because he believed AAA’s programs were illegal, Dehlinger 

must have believed they were illegal as well. In short, neither 

Cauthen nor Priess testified to the ultimate issue of 

Dehlinger’s willfulness as an expert witness would have.

2.

Where admission of lay testimony is challenged as bordering 

on expert opinion, testimony that has no direct effect upon 

proof of the elements of the substantive offenses charged, will 

not be overturned, particularly if there is sufficient evidence 

elsewhere in the record upon which the jury could have found the 

defendant guilty. See Fed. R. Crim. P. 52(b)). 
18

Dehlinger was found guilty of three counts of willfully 

filing false income tax returns. One of the elements proved by 

the government was that Dehlinger voluntarily and intentionally 

violated a known legal duty. Cheek v. United States, 498 U.S. 

192, 201 (1991). Even discounting Priess’s testimony, there was 

sufficient evidence of willfulness. For instance, the government 

presented evidence that, in 1998, Dehlinger had accurate Form 

1040s prepared by Terry. Dehlinger, however, did not file this 

form or inform Terry that this form was incorrect. Rather, 

Dehlinger signed and filed a tax return that claimed a refund of 

all taxes paid to a AAA partner. This evidence shows that 

Dehlinger knowingly filed fraudulent tax returns. See United 

States v. Mohney, 949 F.2d 1397, 1407 (6th Cir. 1991) (“A 

taxpayer’s signature on a return does not in itself prove his 

knowledge of the contents, but knowledge may be inferred from 

the signature along with the surrounding facts and 

circumstances, and the signature is prima facie evidence that 

the signer knows the contents of the return.”) (citing United 

States v. Harper, 458 F.2d 891, 894 (7th Cir. 1971)); United 

States v. Drape, 668 F.2d 22, 26 (1st Cir. 1982) (holding that a 

defendant’s signature is sufficient to establish knowledge once 

it has been shown that the return was false). The district court 

did not abuse its discretion in refusing to grant a mistrial.
19

D.

We review a district court’s interpretation of the 

Sentencing Guidelines de novo and its factual findings for clear 

error. United States v. Osborne, 514 F.3d 377, 387 (4th Cir. 

2008), cert. denied, 128 S. Ct. 2525 (2008); United States v. 

Daughtrey, 874 F.2d 213, 217-18 (4th Cir. 1989). If a defendant 

fails to raise a timely objection during sentencing, however, we 

review the district court’s actions for plain error. See United

States v. Olano, 507 U.S. 725, 731-32 (1993); United States v. 

Uzenski, 434 F.3d 690, 711 (4th Cir. 2006); United States v. 

Lynn, Nos. 08-5125, 08-5126, 08-5132, 09-4341, _ F.3d _, 2010 WL 

322176 (4th Cir. Jan. 28, 2010).

Dehlinger claims that the district court improperly 

sentenced him when it (1) took into account three years of tax 

losses for which he was not indicted or convicted and (2) 

increased his offense level by two levels for obstruction of 

justice. As to the former issue, the district court properly 

took into account three years of tax losses for which Dehlinger 

was not indicted in calculating his base offense level. When an 

offense involves tax evasion or filing fraudulent tax returns, 

the Sentencing Guidelines calculates a defendant’s base offense 

level on the attempted tax loss, defined as “the total amount of 

loss that was the object of the offense.” U.S.S.G. § 

2T1.1(c)(1); United States v. Delfino, 510 F.3d 468, 472 (4th 
20

Cir. 2007). Tax loss is loss attributable to the offense of 

conviction and any other loss due to relevant conduct, including 

“all acts and omissions committed, aided, abetted, counseled, 

commanded, induced, procured, or willfully caused by the 

defendant . . . that occurred during the commission of the 

offense of conviction, in preparation for that offense, or in 

the course of attempting to avoid detection or responsibility 

for that offense,” U.S.S.G. § 1B1.3(a)(1), and all such acts and 

omissions that were part of the same course of conduct or common 

scheme or plan as the offense of conviction, U.S.S.G. § 

1B1.3(a)(2). “[A]ll conduct violating the tax laws should be 

considered as part of the same course of conduct or common 

scheme or plan unless the evidence demonstrates that the conduct 

is clearly unrelated.” U.S.S.G. § 2T1.1 comment (n.2); United 

States v. Ervasti, 201 F.3d 1029, 1042 (8th Cir. 2000). 

Here, the presentence investigation report recommended a 

tax loss of $363,207, which included tax loss for the six-year 

period from 1996 to 2001. During sentencing, Dehlinger did not 

object to the very inclusion of tax losses from 1996, 1997, and 

1998. Rather, Dehlinger objected to the inclusion of those tax 

losses only to the extent that they did not reflect deductions 

to which he may have been entitled. The district court did not 

err in overruling Dehlinger’s objection and including tax losses 

from 1996 to 1998 because it was shown at trial that Dehlinger 
21

used the same AAA programs and made the same types of deductions 

in those three years as the subsequent three years for which he 

was indicted and convicted. See Ervasti, 201 F.3d at 1042 (using 

"fraud loss," which defendant conceded to be $5,747,478.88, 

rather than "tax loss," to which she did not “ascribe a precise 

value,” as the basis for calculating the base offense level in a 

mail fraud case in which the defendant misappropriated impounded 

tax monies from clients of their payroll processing 

corporation); see also United States v. Hayes, 322 F.3d 792, 

801-02 (4th Cir. 2003) (vacating a sentence because the district 

court did not consider all relevant evidence in determining the 

applicable tax loss).

As to the second of Dehlinger’s sentencing issues, the 

district court did not err in increasing Dehlinger’s offense 

level by two levels for obstruction of justice. The Sentencing 

Guidelines allow a two level increase if “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 any relevant conduct.” U.S.S.G. § 3C1.1; 

United States v. Puckett, 61 F.3d 1092, 1095 (4th Cir. 1995). 

Obstruction of justice includes committing perjury at trial. 

U.S.S.G. § 3C1.1, comment (n.4(b)). A district court applying an 

enhancement based on obstruction of justice must necessarily 
22

find, by a preponderance of the evidence, that the defendant (1) 

gave false testimony, (2) concerning a material matter, (3) with 

the willful intent to deceive while under oath. United States v. 

Dunnigan, 507 U.S. 87, 92-98 (1993); United States v. Sun, 278 

F.3d 302, 314 (4th Cir. 2002) (citing United States v. Smith, 62 

F.3d 641, 646 (4th Cir. 1995)).

The district court found that Dehlinger committed perjury 

when he testified (extensively) under oath that he relied on 

others, taking advice from his accountant and financial planner, 

as well as Dr. Chari, regarding the legality and soundness of 

the AAA programs. Specifically, Dehlinger claimed that he took 

certain deductions “because Richard Marks and George Benoit said 

they were appropriate deductions.” Tr. 108. As an initial 

matter, the district court’s enhancement for perjury did not 

constitute double counting (even though Dehlinger’s crime 

constituted lying to the IRS) because the crime for which he was 

convicted was completed by the time he went on trial. Indeed, 

his crime was complete after he had filed the fraudulent tax 

returns. Lying under oath constitutes a new and different 

circumstance designed to hide the already completed crime. In 

short, the conduct underlying Dehlinger’s conviction is 

different from the conduct upon which the district court based 

its enhancement.
23

Second, the district court properly reasoned that, since 

the jury found Dehlinger guilty of all tax evasion charges, it 

must have rejected all of his testimony regarding good faith and 

lack of willfulness. During sentencing, the district court 

discussed at length its reasons for enhancing Dehlinger’s 

sentence; namely, that Dehlinger (1) gave false testimony, (2) 

concerning a material matter, (3) with the willful intent to 

deceive while under oath. The district court said, 

[Defendant’s] testimony was to say, if it is 

detrimental reliance, if that is the description, the 

proper description, it may well be; but it was more 

specific about what was going on, what I did and, 

gosh, I really did not know that this was not on the 

up and up. And it seems that the jury evaluated that 

testimony and the jury found the defendant guilty and 

ignored that testimony altogether. . . .

But [defendant] was very specific about what he had 

done and the fact that it was not bad motive or 

criminal intent by him; but the specifics were such 

that, it seems to me, there was a rejection of those 

facts. . . . But the testimony was detailed and 

specific about what happened; and he asked the jury to 

rely on his position that he did not know what was up 

in light of a lot of evidence that indicated that he 

knew some of the things that were going on simply were 

not legal, and ultimately the jury concluded they were 

criminal.

Sent. Tr. 34-38. These observations by the district court

support its determination that Dehlinger committed perjury for 

the sole purpose of deceiving the jury regarding his culpability 

and involvement with AAA. The district court therefore properly 

sentenced Dehlinger.
24

III.

For the foregoing reasons, we affirm Dehlinger’s conviction 

and sentence, without prejudice to any post conviction claim 

based on ineffective assistance of counsel that appellant may 

elect to pursue. 

AFFIRMED