UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-5127

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ALOYSIUS T. FOKKOUN-NGASSA,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. Claude M. Hilton, Senior

District Judge. (1:06-cr-00153)

Submitted: October 24, 2007 Decided: November 6, 2007

Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Matthew A. Wartel, LOWE, CARLO & WARTEL, LLP, Alexandria, Virginia,

for Appellant. Chuck Rosenberg, United States Attorney, Timothy D.

Belevetz, Assistant United States Attorney, Alexandria, Virginia,

for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Aloysius T. Fokkoun-Ngassa appeals his convictions and

33-month sentence imposed following the jury verdict of guilty on

twelve counts of aiding in the preparation of a false tax return,

in violation of 26 U.S.C. § 7206(2) (2000). On appeal, he

challenges the sufficiency of the evidence and the amount of loss

attributed to him at sentencing. Finding no error, we affirm.

Fokkoun-Ngassa, a tax preparer, was indicted on multiple

charges of aiding in the preparation of a false tax return. At

trial, the Government presented the testimony of seven taxpayers

for whom Fokkoun-Ngassa prepared returns. Each of them testified

that Fokkoun-Ngassa had used an incorrect filing status and/or

overstated deductions for them, resulting in an increase in the

amount of a tax refund the taxpayer would receive. The taxpayers

testified that they had not provided Fokkoun-Ngassa with any

information to support the deduction amounts.

The Government also presented evidence that employees in

Fokkoun-Ngassa’s office entered only identification information and

W-2 information into the computer-assisted tax-preparation software

used to prepare the taxpayers’ returns. Fokkoun-Ngassa was the

only person who entered deduction information and he was the only

person in the office who signed tax returns as the preparer. An

IRS special agent testified that she posed as a client and

requested that Fokkoun-Ngassa prepare her return. In doing so, he
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created deductions for mileage, gifts to charity, dry cleaning, and

professional dues and supplies, for which the agent was not

authorized, resulting in a refund of $1500 more than she was

allowed based on the information that she provided. She testified

that Fokkoun-Ngassa repeatedly stated that he would try to help

her.

Fokkoun-Ngassa presented the testimony of his brother

that office workers did, in fact, enter deduction information into

the computer system and that, given the volume of returns handled

by the office, the erroneous returns for which he was charged were

likely the result of mistakes, not willful conduct. In reviewing

sufficiency of the evidence, all credibility determinations are

resolved in favor of the Government. See United States v.

Saunders, 886 F.2d 56, 60 (4th Cir. 1989).

We find that, viewing the evidence in the light most

favorable to the Government, there was sufficient evidence to

support the jury’s verdict of guilty on the twelve charges of

aiding in the preparation of a false tax return for which FokkounNgassa was convicted. See Glasser v. United States, 315 U.S. 60,

80 (1942); United States v. Aramony, 88 F.3d 1369, 1382 (4th Cir.

1996) (providing elements of § 7206(2) offense).

Fokkoun-Ngassa also argues that his sentence was enhanced

improperly based on uncharged and acquitted conduct. However,

contrary to Fokkoun-Ngassa’s arguments, the sentencing court may
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consider uncharged and acquitted conduct in determining a sentence,

as long as the conduct is proven by a preponderance of the

evidence. See United States v. Watts, 519 U.S. 148, 151-52, 157

(1997); United States v. Bowman, 926 F.2d 380, 381-82 (4th Cir.

1991) (uncharged conduct); United States v. Isom, 886 F.2d 736, 738

(4th Cir. 1989) (acquitted conduct). This rule remains valid after

United States v. Booker, 543 U.S. 220 (2005). See United States v.

Mercado, 474 F.3d 654, 657 (9th Cir. 2007) (collecting cases),

petition for cert. filed, U.S.L.W. (U.S. Aug. 8, 2007) (No.

07-5810); see also United States v. Morris, 429 F.3d 65, 72 (4th

Cir. 2005) (holding that preponderance of the evidence standard

continues to apply after Booker), cert. denied, 127 S. Ct. 121

(2006).

We find that the sentencing court did not clearly err in

finding that the tax loss attributable to Fokkoun-Ngassa’s conduct

exceeded $200,000. See United States v. Uwaeme, 975 F.2d 1016,

1018 (4th Cir. 1992) (providing standard). Accordingly, we affirm

Fokkoun-Ngassa’s convictions and sentence. We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

AFFIRMED