*The HONORABLE JAMES M. ROSENBAUM, United States

District Judge for the District of Minnesota, sitting by

designation.

 The Honorable Harry Barnes, United States District Judge for

the Western District of Arkansas.

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No. 96-1065

___________

United States of America, *

 *

Appellee, *

 * Appeal from the United States

v. * District Court for the

 * Western District of Arkansas

Milton Gary Marshall, *

 *

Appellant. *

___________

Submitted: June 11, 1996

Filed: August 19, 1996 ___________

Before MORRIS SHEPPARD ARNOLD and FLOYD R. GIBSON, Circuit Judges,

and ROSENBAUM,* District Judge. ___________

ROSENBAUM, District Judge.

Milton Gary Marshall was convicted, in August, 1995, of

preparing fraudulent tax returns. He appeals the district court’s

denial of his motion for judgment of acquittal and the court’s

calculation of his base offense level under the United States

Sentencing Guidelines. We affirm the judgment of the district

court.1
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I.

On June 14, 1995, a federal grand jury returned a 60-count

indictment charging Marshall with aiding or assisting in the

preparation of false or fraudulent income tax returns. See 26

U.S.C. § 7206(2). During the five-day trial, the government moved

to dismiss 18 counts of the indictment. On August 18, 1995, a jury

found Marshall guilty of 17 counts. The jury was unable to reach

a verdict on the remaining 25 counts, which were subsequently

dismissed at the time of sentencing.

On December 8, 1995, the district court sentenced Marshall to

51 months imprisonment under the federal Sentencing Guidelines,

based on a total tax loss of $2,004,961.00. This calculation was

based on government exhibit 17-1, which summarized all tax returns

bearing Marshall’s tax preparer number filed between 1991 and 1993.

Exhibit 17-1 was not admitted at trial because it included tax

returns prepared by two of Marshall’s employees. The exhibit was,

however, accepted for sentencing purposes after the district court

found it reflected Marshall’s relevant conduct.

II.

A.

Marshall appeals the denial of his motion for judgment of

acquittal. He argues the evidence was insufficient to convict, the

individual taxpayers who testified against him were not credible,

and the verdict was equivocal.

Evidence is sufficient to sustain a conviction if, viewed in

the light most favorable to the government, it offers substantial

support for the verdict. Glasser v. United States, 315 U.S. 60, 80

(1942); United States v. Marin-Cifuentes, 866 F.2d 988, 992 (8th

Cir. 1989). It is axiomatic that we do not "pass upon the

credibility of witnesses or the weight to be given their

testimony." United States v. Witschner, 624 F.2d 840, 843 (8th

Cir. 1980) (citing Stanley v. Henderson, 597 F.2d 651, 653 (8th
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Cir. 1979)). Further, this court will not upset a conviction

merely because the jury’s verdict may have been inconsistent.

United States v. Finch, 16 F.3d 228, 230-31 (8th Cir. 1994).

The evidence here was sufficient to convict Marshall of

preparing fraudulent tax returns. Fourteen individual taxpayers

testified concerning Marshall’s preparation of their returns.

Based on their testimony, the jury could well find that Marshall

listed fictitious dependants, improperly reported filing status, or

improperly claimed earned income or health care credits for one or

another taxpayer. The taxpayers testified they did not see their

returns before filing and were unaware of the inaccuracies.

Finally, the taxpayers testified that Marshall paid them their

refunds in cash, and, as such, they did not know their refunds were

larger than the sum they received. 

This evidence is sufficient to sustain the jury’s verdict.

Marshall’s own testimony that he did not know the returns were

false was clearly rejected. Such rejection is not subject to

review. Witschner, 624 F.2d at 843.

Marshall further claims that the taxpayers’ testimony cannot

sustain his verdict because they were not criminally charged. This

contention is merely an attack on the witnesses’ credibility and

provides no ground for reversing Marshall’s conviction. See id.

Finally, Marshall’s argument that the jury improperly convicted on

some counts, but reached no verdict on others, is simply a claim

that the verdict was inconsistent. Such inconsistency, of course,

is not a basis for reversal. See Finch, 16 F.3d at 230-31.

Accordingly, we uphold Marshall’s conviction.
 Because the PSR calculated a loss in excess of $1,500,000.00,

Marshall’s base offense level was 20. See U.S.S.G. §§ 2T1.4(a)(1)

and 2T4.1(O). Marshall contends the amount of loss should have

been $90,122.00, producing a base offense level of 14. See

U.S.S.G. §§ 2T1.4(a)(1) and 2T4.1(I).

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B.

Marshall challenges the use of government exhibit 17-1 to

enhance his sentence. He alleges the district court improperly

relied on the presentence report ("PSR") which, based on exhibit

17-1, determined the tax loss to be $2,004,961.00.2

Marshall claims the district court should have held an

evidentiary hearing regarding the amount of loss, relying on United

States v. Hammer, 3 F.3d 266 (8th Cir. 1993), cert. denied sub nom.

Walkner v. United States, 114 S. Ct. 1121 (1994). Hammer teaches

that, in resolving contested issues of fact, a sentencing court may

not rely on statements contained in a PSR. 3 F.3d at 272. Rather,

the government must produce "evidence sufficient to convince the

Court by a preponderance of the evidence that the fact in question

exists." Id. at 272-73 (quoting United States v. Streeter, 907

F.2d 781, 791-92 (8th Cir. 1990)). A sentencing court, however,

need not hold an evidentiary hearing to resolve factual objections

where, as here, the sentencing judge presided over the trial. In

such a case, the court may base its findings of fact on the trial

record. United States v. Jones, 875 F.2d 674, 676 (8th Cir.),

cert. denied, 493 U.S. 862 (1989).

Here, the trial record amply supports the district court’s tax

loss determination. See Jones, 875 F.2d at 676. Marshall admitted

he prepared more than 1,200 tax returns, and testified that all

employees in his tax preparation business were under his control.

The trial evidence showed that the returns listed in exhibit 17-1

contained the same types of discrepancies as those returns for

which Marshall was convicted -- improper claims of earned income

and health care credits and incorrect filing status. Based on this
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evidence, the Court could have found by a preponderance of the

evidence that Marshall caused, either directly or through employees

under his control, the tax losses reflected in exhibit 17-1.

Hammer, 3 F.3d at 272-73. Accordingly, we affirm the sentence

imposed by the district court.

III.

The judgment of the district court is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.