UNPUBLISHED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.
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 crossexamination, 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 
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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 
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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. 
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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