United States v. Eugene Osuala

553 F. App'x 80

• Court: Court of Appeals for the Second Circuit
• Decided: February 3, 2014
• Docket: 12-3573
• Status: Unpublished

Opinion

SUMMARY ORDER

Eugene Osuala, proceeding pro se, appeals from an August 30, 2012 judgment of conviction, entered following a jury trial, for one count of obstructing and impeding the due administration of the internal revenue laws, in violation of 26 U.S.C. § 7212(a), two counts of subscribing to false and fraudulent income tax returns, in violation of 26 U.S.C. § 7206(1), and forty counts of aiding and assisting in the preparation of false and fraudulent United States individual income tax returns, in violation of 26 U.S.C. § 7206(2). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

Osuala challenges his conviction on the ground that certain counts of the Indictment were barred by the applicable six-year statute of limitations, 26 U.S.C. §§ 6513, 6531. Because Osuala failed to raise this argument in the District Court, it is waived. 1 See, e.g., United States v. Kelly, 147 F.3d 172, 177 (2d Cir.1998). In any event, the claim fails on the merits. For the counts based on fraudulent tax returns, the limitations period runs from the filing deadline for the relevant tax return, not the date on which the return was actually submitted. 26 U.S.C. § 6513(a); see also United States v. Habig, 390 U.S. 222, 225-26, 88 S.Ct. 926, 19 L.Ed.2d 1055 (1968). Under this calculation, none of the returns on which the conviction was based were time barred. Count One, which alleged a scheme to obstruct administration of the tax laws, is within the limitations period if any act integral to the scheme occurred within that period, as was the case here.

Osuala also claims that his sentence of 42 months was unreasonable because the District Court considered tax returns that were not a basis for his conviction, or were outside the statute of limitations, in calculating “tax loss” for sentencing purposes. Osuala’s sentence is reviewed for reasonableness. United States v. Chu, 714 F.3d 742, 746 (2d Cir.2013). We review the District Court’s interpretation and application of the Guidelines de novo, and its findings of fact for clear error. United States v. Zagari, 111 F.3d 307, 323 (2d Cir.1997).

Section 2Tl.l(c)(l) of the Guidelines defines “tax loss” as “the total amount of loss that was the object of the offense.” Application Note 2 to this Guideline notes that “all 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.” Thus, the District Court properly considered uncharged conduct and conduct that fell outside the relevant statute of limitations. See United States v. Silkowski, 32 F.3d 682, 688 (2d Cir.1994) (“relevant conduct ... include[s]: conduct for which the defendant was acquitted, conduct that predates that charged in the indictment, and conduct not charged in the indictment.” (internal citations omitted)). Therefore, Osuala has not shown that his sentence was unreasonable.

CONCLUSION

We have reviewed the arguments on appeal, and find them to be without merit for the reasons set forth above. Accordingly, we AFFIRM the August 30, 2012 judgment of the District Court.

1 . The parties dispute whether Osuala raised his statute of limitations claim below. A review of the trial and sentencing transcripts reveals that no motion to dismiss was filed or objection lodged to any count based on a claim that it fell outside the statute of limitations period.