UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 23-4700

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TYSHA S. HOLMES,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at 

Columbia. Timothy M. Cain, Chief District Judge. (3:21-cr-00193-TMC-1)

Submitted: May 13, 2024 Decided: June 21, 2024

Before WILKINSON, AGEE, and RUSHING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Jeremy A. Thompson, Assistant Federal Public Defender, OFFICE OF THE 

FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Adair F. 

Boroughs, United States Attorney, Andrea G. Hoffman, Assistant United States Attorney, 

OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Tysha S. Holmes appeals her convictions and five-month sentence imposed for one 

count of embezzlement, in violation of 18 U.S.C. § 641 (“Count One”), and one count of 

making a false statement to obtain workers’ compensation benefits, in violation of 18 

U.S.C. § 1920 (“Count Three”). Holmes first asserts that the district court erroneously 

instructed the jury regarding “willful blindness” because such an instruction should only 

be given in rare circumstances and the Government failed to present evidence justifying 

that the court issue the instruction. Holmes also asserts that the district court erroneously 

calculated the restitution amount Holmes was ordered to pay because the amount included 

loss resulting from her conduct underlying a § 1920 offense charged in a count of which 

she was acquitted (“Count Two”). Finding no reversible error, we affirm.

As Holmes failed to object to the district court’s decision to issue the willful 

blindness instruction and did not object to the restitution amount in her presentence report 

(“PSR”) or at sentencing, we review for plain error. See United States v. Smithers, 92 F.4th 

237, 246 (4th Cir. 2024) (“[A] waived or forfeited objection [to a jury instruction] is 

analyzed under plain error.”); United States v. Stone, 866 F.3d 219, 225 (4th Cir. 2017) 

(“[W]hen, as here, the defendant fails to object to the restitution order, we review for plain 

error.”). “Under that standard, [Holmes] may not obtain relief unless: (a) the error was 

plain; (b) the error affected substantial rights, meaning that there is a reasonable probability 

that, but for the error, the outcome of the proceeding would have been different; and (c) 

the error had a serious effect on the fairness, integrity or public reputation of judicial 

proceedings.” United States v. Heyward, 42 F.4th 460, 465 (4th Cir. 2022) (internal 

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quotation marks omitted). “This standard is difficult to satisfy.” Id. (internal quotation 

marks omitted). 

Regarding the willful blindness instruction, “[§] 1920 of the criminal code makes it 

unlawful to knowingly and willfully make a false, fictitious, or fraudulent statement or 

representation in connection with the application for or receipt of compensation or other 

benefit or payment under a federal program.” United States v. Catone, 769 F.3d 866, 872 

(4th Cir. 2014) (cleaned up). The parties conceded in the district court, to prove Holmes 

violated § 1920, the Government had to establish that (1) Holmes knowingly and willfully 

made a false statement; (2) the statement was material; (3) the statement was made to obtain 

OWCP benefits; and (4) Holmes received more than $1,000. 

As to the false statement element, the Government had the burden to establish that 

Holmes “acted knowingly and willfully with the specific intent to deceive.” United States 

v. Schnabel, 939 F.2d 197, 203 (4th Cir. 1991). In this regard, “[i]t is well established that 

where a defendant asserts that he did not have the requisite mens rea to meet the elements 

of the crime but evidence supports an inference of deliberate ignorance, a willful blindness 

instruction to the jury is appropriate.” United States v. Miller, 41 F.4th 302, 314 (4th Cir. 

2022) (cleaned up). “Evidence supports an inference of deliberate ignorance if it tends to 

show that (1) the defendant subjectively believes that there is a high probability that a fact 

exists and (2) the defendant took deliberate actions to avoid learning of that fact.” Id.

(cleaned up). We have explained that “[t]he willful blindness instruction allows the jury 

to impute the element of knowledge to the defendant if the evidence indicates that [s]he 

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purposely closed h[er] eyes to avoid knowing what was taking place around h[er].” 

Schnabel, 939 F.2d at 203.

Holmes is correct that “caution must be exercised in giving a willful blindness 

instruction,” which “is appropriate only in rare circumstances.” United States v. Ali, 735 

F.3d 176, 187 (4th Cir. 2013). This is so “because the instruction presents the danger of 

allowing the jury to convict based on an ex post facto theory (he should have been more 

careful) or to convict on a negligence theory (the defendant should have known his conduct 

was illegal).” United States v. Lighty, 616 F.3d 321, 378 (4th Cir. 2010). Holmes therefore 

asserts that, because there was no evidence she took affirmative action to avoid learning of 

her obligations to correctly report her income, the district court’s instruction provided an 

avenue for the jury to convict her based on mere recklessness or negligence.

We conclude that the district court did not commit plain error in issuing the willful 

blindness instruction. First, the Government’s evidence established that Holmes was aware 

of her obligation to report any employment in the 15 months preceding her completion of 

the 1032 Forms underlying the charged § 1920 offenses. The 1032 Forms also contained 

a warning, in all capital letters, that failure to accurately report all work activities could 

result in severe penalties, including criminal prosecution, and Holmes received the cover 

letters and 1032 Forms containing these instructions and warnings multiple times between 

2012 and 2017. 

Holmes correctly argues that to justify issuance of a willful blindness instruction,

this court has looked to affirmative conduct a defendant has taken to avoid discovering a 

legal obligation. See, e.g., United States v. Ravenell, 66 F.4th 472, 491 (4th Cir. 2023) 

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(concluding that evidence of defendant’s “machinations to maintain plausible deniability,” 

including testimony that the defendant instructed an associate of a drug dealer “not to give 

him cash from drug proceeds and instead to give him checks and money orders,” 

demonstrated deliberate avoidance), cert. denied, No. 23-638, 2024 WL 1607762 (U.S. 

Apr. 15, 2024). But we conclude that the evidence presented at trial, including Holmes’ 

testimony that her husband had to complete the 1032 Form underlying Count Three 

because of stress and medical conditions she was experiencing at the time, justified the 

district court’s willful blindness instruction. Id. Moreover, although Holmes does not 

challenge the substance of the district court’s willful blindness instruction, the court’s 

instruction carefully tracked the applicable standard and explained that the jury could not 

infer knowledge if the only proof established that Holmes was negligent or mistaken 

regarding her reporting obligations. We presume that the jury followed the court’s 

instruction, see United States v. Johnson, 587 F.3d 625, 631 (4th Cir. 2009), especially 

since it acquitted Holmes of providing false statements on the 1032 Forms underlying the 

§ 1920 charges of which Holmes was acquitted.

Turning our attention to the district court’s restitution order, the Mandatory Victims 

Restitution Act (“MVRA”), codified at 18 U.S.C. § 3663A, requires “defendants convicted 

of certain crimes to pay their victims restitution.” Lagos v. United States, 584 U.S. 577, 

580 (2018). These crimes include “any offense committed by fraud or deceit,” 

§ 3663A(c)(1)(A)(ii), and “in which an identifiable victim . . . has suffered a . . . pecuniary 

loss,” § 3663A(c)(1)(B). Thus, the statute “authorizes an award of restitution only for the 

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loss caused by the specific conduct that is the basis of the offense of conviction.” United 

States v. Blake, 81 F.3d 498, 506 (4th Cir. 1996) (cleaned up). 

Holmes’ PSR expressly indicated that $18,649.39 in restitution should be ordered 

to be paid to OWCP since that amount was required under the MVRA. As Holmes made 

no objections to the PSR, the district court was entitled to rely upon the “undisputed 

portion” of the PSR in determining restitution. See Fed. R. Crim. P. 32(i)(3)(A); United 

States v. Roy, 88 F.4th 525, 533 (4th Cir. 2023) (A district court may “accept any 

undisputed portion of the presentence report as a finding of fact.”). 

Moreover, Holmes was convicted of Count Three and embezzlement as alleged in 

Count One. Count One charged Holmes with embezzling more than $1,000 of money from 

2015 through the date of the indictment, which was originally filed on July 20, 2021. The 

timeframe for the embezzlement amount therefore included May 2016, which is when 

Holmes executed the 1032 Form underlying Count Two. 

And reviewing the district court’s factual findings regarding the appropriate amount 

of loss caused by Holmes’ crimes in conjunction with the evidence and argument presented 

during her trial and at sentencing, we conclude that the district court did not commit clear 

error in finding—by a preponderance of the evidence—that OWCP was entitled to 

$18,649.39 in restitution for Holmes’ embezzlement. Cf. United States v. Seignious, 757 

F.3d 155, 163 (4th Cir. 2014) (explaining that, to determine—on plain error review—

whether district court erroneously calculated loss amount, the court must first determine 

whether the district court committed clear error in finding that loss amount was supported 

by a preponderance of the evidence). Indeed, although Holmes had the burden to refute 

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the Government’s evidence establishing the amount of restitution she owed, see United 

States v. Underwood, 95 F.4th 877, 894 (4th Cir. 2024) (“[O]nce the Government has 

satisfied its burden to offer evidence supporting its restitution calculation, the burden shifts 

to the defendant to dispute that amount with [her] own evidence” (cleaned up)), Holmes 

conceded at trial that the Government correctly calculated the amount she owed and that 

she received an overpayment of approximately $18,000 for her failure to report her 

employment during the relevant years.

As support for her argument that the district court committed plain error when it 

ordered her to pay restitution for conduct underlying Count Two, Holmes primarily relies 

on the Supreme Court’s decision in Hughey v. United States, 495 U.S. 411, 416 (1990)

(“[R]estitution as authorized by [18 U.S.C. § 3579(a)(1)] is intended to compensate victims 

only for losses caused by the conduct underlying the offense of conviction.” (emphasis 

added)), as well as this court’s decision in United States v. Llamas, 599 F.3d 381 (4th Cir. 

2010), and the Court of Appeals for the Seventh Circuit’s decision in United States v. Kane, 

944 F.2d 1406 (7th Cir. 1991). In both Llamas and Kane, however, the defendants 

challenged restitution ordered for convictions for conspiracy offenses that were supported 

by expressly alleged overt acts of which defendants were acquitted. See Kane, 944 F.2d at 

1414; see also United States v. Llamas, No. 3:05-cr-00400-FDW-4 (W.D.N.C., PACER 

No. 84 at 5-11). 

Here, Holmes was ordered to pay the challenged restitution amount because she was 

convicted of a substantive embezzlement charge that, rather than alleging overt acts as 

support, generally alleged a timeframe during which the embezzlement occurred. Thus, 

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the cases upon which Holmes relies are not determinative of the issue Holmes raises on 

appeal. See United States v. Bailey, 975 F.2d 1028, 1033-34 (4th Cir. 1992) (finding 

restitution order permissible under § 3663(a)(1) and Hughey where “[t]he central 

difference between the ‘offense’ in Bailey’s case and that in Hughey is that Bailey’s offense 

was defined broadly in the indictment” and observing that “[c]ases following Hughey have 

reversed restitution orders mainly where the trial court orders restitution for acts of which 

the defendant was not convicted”); see also Rosales-Mireles v. United States, 585 U.S. 

129, 134 (2018) (reiterating that for an error to be “plain” it must be “clear or obvious”). 

We therefore conclude that the district court committed no plain error in calculating the 

restitution amount for which Holmes was responsible. 

Based on the foregoing, we affirm the criminal judgment. 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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