USCA4 Appeal: 24-4288 Doc: 65 Filed: 09/19/2025 Pg: 1 of 31
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 24-4288
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES C. JONES, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Michael F. Urbanski, Senior District Judge. (7:20-cr-00046-MFU-1)
Argued: May 7, 2025 Decided: September 19, 2025
Before WILKINSON and KING, Circuit Judges, and Matthew J. MADDOX, United States District Judge for the District of Maryland, sitting by designation.
Affirmed in part, and vacated in part and remanded, by unpublished opinion. Judge Maddox wrote the opinion, in which Judge Wilkinson and Judge King joined.
ARGUED: Erin Margaret Trodden, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Appellant. Todd Alan Ellinwood, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Mary Maguire, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Appellant. David A. Hubbert, Deputy Assistant Attorney General, S. Robert Lyons, Chief, Criminal Appeals & Tax Enforcement Policy Section, Katie Bagley, Joseph B. Syverson, Tax Division, UNITED STATES DEPARTMENT OF USCA4 Appeal: 24-4288 Doc: 65 Filed: 09/19/2025 Pg: 2 of 31
JUSTICE, Washington, D.C.; Zachary T. Lee, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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MATTHEW MADDOX, District Judge (sitting by designation):
On August 20, 2020, James C. Jones, Jr. was indicted in the U.S. District Court for
the Western District of Virginia for tax-related offenses. An eight-count superseding
indictment was filed on September 15, 2023, charging Jones with violations of 26 U.S.C.
§§ 7201, 7206(1), and 7212(a). On November 21, 2023, Jones was convicted by a jury on
all counts of the superseding indictment. The matter proceeded to sentencing on May 7,
2024. The district court determined that Jones’s Sentencing Guidelines range was 63 to 78
months of imprisonment, based in part on two two-level increases to Jones’s offense level
under U.S.S.G. § 2T1.1(b)(1) and (b)(2), to which Jones objected. Jones was sentenced to
a total prison term of 78 months and supervised release for a total period of three years.
The district court also imposed a fine of $250,000 and ordered restitution in the amount of
$394,508.
Jones now challenges the sufficiency of the evidence in support of his convictions
and challenges application of U.S.S.G. § 2T1.1(b)(1) to compute his Sentencing Guidelines
range. Additionally, the parties agree that the district court committed a Rogers error that
warrants resentencing. For reasons stated below, we affirm Jones’s convictions as founded
upon sufficient evidence and proper application of the challenged Sentencing Guidelines
enhancement, and we vacate Jones’s sentence and remand to remedy the Rogers error.
I.
James C. Jones, Jr. was the owner and president of Lifeline Ambulance Service, Inc.
(“Lifeline”), a Subchapter S corporation in Virginia, from the late 1980s until the business
ceased operation sometime around 2010. Lifeline was required to withhold taxes from the
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wages of its employees, hold them in trust, and pay them over to the federal government.
In 2008 and 2009, Jones withheld employment taxes from the wages of Lifeline employees
and filed employment tax forms with the Internal Revenue Service (“IRS”) but did not pay
Lifeline’s employment taxes to the IRS.
In May 2009, IRS Revenue Officer Susan Meador began contacting Jones,
attempting to collect the delinquent employment taxes from Lifeline necessary to bring the
company into compliance. On May 27, 2009, Meador had a Trust Fund Recovery Penalty
(“TFRP”) interview with Jones. Jones withheld information and made false statements
about his assets in an IRS Form 433-B, Collection Information Statement for Business, and
signed this form under penalties of perjury. In June 2009, following the TRFP interview,
the IRS determined that Jones was independently liable for the unpaid trust fund taxes,1
which amounted to $186,519.55. Upon making this assessment, Meador requested
financial and other information from Jones to ascertain his ability to pay the delinquent
employment taxes and the TFRP. On October 12, 2010, Jones completed IRS Form 433-
A, Collection Information Statement for Wage Earners and Self-Employed Individuals,
which omitted the fact that he owned high-value cars and real estate, including five luxury
apartments on the Dutch Caribbean island of St. Maarten. Jones also omitted the rental
income he received from these properties and the offshore real estate holding companies
associated with them. The Form 433-A that Jones completed was contradicted by a
1 “Trust fund taxes” refers to employment taxes held from employees by the employer in trust to be paid over to the IRS. See J.A. 7515.
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statement of affairs provided to a bank in St. Maarten earlier in 2010, when he reported
assets—including his cars and real estate—which totaled over $14.5 million in value. He
also listed his holding companies on the statement of affairs.
In addition, Jones owned commercial property in Richmond, Virginia (the “Aspen
Avenue property”) and Christiansburg, Virginia (the “Bell Road property”) that he did not
report on the Form 433-A. The Bell Road property was listed on the statement of affairs
submitted to the bank in St. Maarten. Jones transferred the Aspen Avenue and Bell Road
properties out of his name while the IRS attempted to collect the unpaid employment taxes.
Jones sold the Aspen Avenue property for $1,075,000 in July 2009. He paid $599,920 of
the proceeds to Marine Holding, a St. Maarten corporation controlled by real estate
developer Luis Gioia. Jones also transferred the Bell Road property from his holding
company Falling Branch Properties, LLC (“Falling Branch”) to Marine Holding. During
the transfer of the property, Jones provided his closing attorney paperwork stating that he
borrowed $400,000 from auto dealer Dana Mecum and that Marine Holding had acquired
that loan. The paperwork indicated that Marine Holding would take ownership of the
property in satisfaction of the loan. However, Mecum never loaned Jones $400,000, and
the deed of trust presented at the closing was forged. The paperwork Jones provided—
purportedly signed by Tony Cabeceira as chief financial officer—listed an address for
Marine Holding in Miami, Florida. But Marine Holding had no Miami office, Cabeceira
was not its chief financial officer, and he never authorized or signed those documents.
Jones provided a false document concerning the transfer of the Bell Road property to IRS
Officer Meador during the agency’s collection efforts in 2010. He later gave several false
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documents to Special Agents of IRS-Criminal Investigation, including a Mecum
promissory note and false real estate documents involving Marine Holding.
In 2017, Jones was subpoenaed by a grand jury to produce records of any foreign
bank accounts that he owned or controlled within the previous five years. Jones responded
to the subpoena through his attorney stating that he did not have any records to provide.
The government even clarified to Jones that he had an obligation not only to turn over
documents in his possession, but also retrieve them from any foreign bank accounts that he
controlled. At Jones’s direction, his attorney responded by email falsely claiming that Jones
still had nothing to provide. At the time of this response, Jones owned or controlled at least
five foreign bank accounts.
In addition, Jones filed false personal tax returns for tax years 2013 through 2018.
The personal tax returns contained several falsehoods, including claimed large business
casualty and theft losses of over $2.4 million and claimed losses related to Jones’s divorce
exceeding $1.4 million, and falsely omitted rental income from his St. Maarten properties.
On September 15, 2023, a grand jury sitting in the Western District of Virginia
returned the modified superseding indictment charging Jones in eight counts: Count One,
corruptly endeavoring to obstruct the IRS in violation of 26 U.S.C. § 7212(a); Count Two,
tax evasion in violation of 26 U.S.C. § 7201; and Counts Three through Eight, filing false
individual tax returns, in violation of 26 U.S.C. § 7206(1). The matter proceeded to a jury
trial beginning on November 14, 2023. On November 21, 2023, the jury found Jones guilty
on all counts.
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II.
On appeal, Jones argues that the evidence presented at trial was insufficient to
support convictions on the eight counts of the superseding indictment. “A defendant who
challenges the sufficiency of the evidence ‘must overcome a heavy burden.’” United States
v. Robinson, 855 F.3d 265, 268 (4th Cir. 2017) (quoting United States v. Hoyte, 51 F.3d
1239, 1245 (4th Cir. 1995)). We review such challenges by determining “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.”
United States v. Collins, 412 F.3d 515, 519 (4th Cir. 2005) (quoting United States v. Fisher,
912 F.2d 728, 730 (4th Cir. 1990)). The court considers “‘all the evidence considered by
the jury, both admissible and inadmissible’ when assessing a sufficiency challenge.”
United States v. Huskey, 90 F.4th 651, 662 (4th Cir. 2024) (quoting United States v.
Simpson, 910 F.2d 154, 159 (4th Cir. 1990)). The jury’s verdict “must be upheld” if
“substantial evidence” supports it—that is, “‘evidence that a reasonable finder of fact could
accept as adequate and sufficient to support’ the defendant’s guilt.” United States v.
Banker, 876 F.3d 530, 540 (4th Cir. 2017) (quoting United States v. Young, 609 F.3d 348,
355 (4th Cir. 2010)). Witness credibility is not reviewed; and we assume that the jury
resolved all credibility disputes and testimonial contradictions in favor of the government.
See Huskey, 90 F.4th at 662. Reversal for insufficient evidence is “limited to ‘cases where
the prosecution’s failure is clear.’” United States v. Spirito, 36 F.4th 191, 200 (4th Cir.
2022) (citation omitted). A defendant who prevails on a challenge to the sufficiency of the
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evidence is “entitled to a judgment of acquittal without further proceeding.” Huskey, 90
F.4th at 662.
We shall address the sufficiency of the evidence in support of Counts Three through
Eight before proceeding to address Counts One and Two.
A.
1.
Jones first challenges the sufficiency of the evidence in support of his convictions
for filing false income tax returns, as charged in Counts Three through Eight of the
superseding indictment. These counts charge Jones with filing a false individual tax return
for each tax year from 2013 through 2018, in violation of 26 U.S.C. § 7206(1). J.A. 183–
84. Each count corresponds with a tax year for which Jones filed the false return (i.e., Count
Three for tax year 2013; Count Four for 2014; Count Five for 2015; Count Six for 2016;
Count Seven for 2017; Count Eight for 2018). Id.
An individual violates § 7206(1) if he or she “[w]illfully makes and subscribes any
return, statement, or other document, which contains or is verified by a written declaration
that it is made under the penalties of perjury, and which he does not believe to be true and
correct as to every material matter[.]” 26 U.S.C. § 7206(1). A breach of federal tax laws is
“willful” if there was a “voluntary, intentional violation of a known legal duty.” Cheek v.
United States, 498 U.S. 192, 201, 111 S. Ct. 604, 610, 112 L. Ed. 2d 617 (1991). “Intent
may be inferred from conduct, and willfulness in a criminal tax case may be established by
a consistent pattern of not reporting income or inconsistently reporting income.” United
States v. Mathews, 761 F.3d 891, 893 (8th Cir. 2014) (citation modified); see also United
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States v. Diamond, 788 F.2d 1025, 1030 (4th Cir. 1986) (“[D]irect evidence of intent . . .
is of course seldom possible and never a requisite to finding the necessary culpability of
mind beyond a reasonable doubt.”).
Jones does not contest the sufficiency of the government’s evidence at trial that his
“personal tax returns for the years 2013 through 2018 contained improper deductions and
failed to disclose income from properties in St. Maarten.” Appellant Br. At 18. Jones
focuses his challenge on the sufficiency of evidence that he acted willfully and with
knowledge that the tax returns were improper. The government argues that the trial
evidence was more than sufficient to show that Jones willfully submitted false personal tax
returns to the IRS for tax years 2013 through 2018. Appellee Br. at 19. The government
points out that the trial evidence established that Jones failed to report substantial income
from his rental properties for the charged tax years, used a nominee company director to
evade discovery that he owned the properties, falsely claimed the casualty or theft loss
from his divorce judgment, and improperly reported embezzlement losses; that his
testimony was implausible and false; and that he took affirmative acts in the years before
filing the false tax returns to evade the payment of employment taxes. Viewing the trial
evidence in its totality, we find the evidence of willfulness presented at trial to be sufficient.
First, the amount of rental income from Jones’s rental properties in St. Maarten that
he failed to disclose in each of the charged tax returns was substantial. In statements of
affairs Jones submitted to a bank in St. Maarten, which were presented at trial, Jones
reported rental income from properties in St. Maarten totaling $196,236 in 2014 and
$196,236 in 2016. J.A. 1337, 1368. In addition, the IRS determined from the available
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evidence the amounts of rental income these properties generated each year that Jones
failed to report it in his tax return. IRS agent Jennifer Maroulis testified at trial that, based
on her calculations, the properties generated between $120,000 and $170,750 in rental
income each year from 2013 through 2016, $70,100 in 2017, and $29,600 in 2018. J.A.
7523–25; S.A. 001. Thus, a substantial amount of income was generated by the St. Maarten
properties, and none of it was reported in Jones’s personal income tax returns spanning
several years. See generally J.A. 4463–5157. In sum, Jones reported substantial rental
income to the St. Maarten bank while repeatedly omitting it from his tax returns. A rational
juror could infer, from this evidence, that Jones was aware of this substantial income and
that his failure to report it in his tax returns was intentional.
Second, the government established at trial that Jones hired an offshore nominee
company director for the St. Maarten properties and took other steps that had the effect of
concealing Jones as the beneficial owner of the properties. The director, Hans Pfennings,
testified that Jones hired Pfennings and his management companies to manage the
companies through which Jones owned his real estate. Pfennings’s job as management
director of the companies was to “set up the corporation and open a bank account and
do . . . day-to-day-management, and keep the company in good standing, and file the tax
returns if required.” J.A. 6909:6–9. Pfennings, through his St. Maarten-based management
company Chartwell, managed a number of Jones’s real-estate companies, each of which
owned property in St. Maarten. J.A. 6912. Antonio Cabecceira, a St. Maarten-based
commercial banking officer and business associate of Pfennings, testified that as
“managing director [Pfennings] would have to sign for . . . anything that was done within
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the company.” J.A. 6743–44. However, Pfennings’s testimony made clear that he had no
decision-making authority respecting the properties but rather followed Jones’s
instructions. J.A. 6962–66. Trial evidence established that Jones directed Chartwell to issue
bearer shares for some of his companies. J.A. 6087, 6912, 6915, 6931. The actual owner
of bearer shares is not registered anywhere. The share is “embodied in a bearer share
certificate” such that anyone in possession of the certificate is a shareholder of the entity.
J.A. 6915. Thus, Jones’s hiring of an offshore nominee company director for the St.
Maarten properties and issuance of bearer shares both tended to conceal his identity as the
beneficial owner of the properties and, therefore, offered support for a rational finding that
he acted willfully in failing to disclose income from the properties in his tax returns.
Third, during his testimony at trial, Jones denied ownership of the properties in St.
Maarten, offered minimal explanation for documentary evidence to the contrary, and
denied signing documents that bore his signature. See, e.g., J.A. 7677, 7693–94, 7701–03.
Jones testified that other trial witnesses were lying, including Gioia, see J.A. 7758–59, who
testified that Jones had bought several St. Maarten properties from him, J.A. 6997.
Considered in light of other testimony Jones provided that was contradicted by
documentary evidence and testimony from multiple witnesses, Jones’s testimony about the
properties in St. Maarten could be found by a rational juror to be false, lending support to
a finding that Jones willfully avoided reporting his rental income from the properties. See
United States v. Burgos, 94 F.3d 849, 868 (4th Cir. 1996) (en banc) (“A defendant’s
credibility is a material consideration in establishing guilt, and if a defendant ‘take[s] the
stand . . . and denies the charges and the jury thinks he’s a liar, this becomes evidence of
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guilt to add to the other evidence.’”) (quoting United States v. Zafiro, 945 F.2d 881, 888
(7th Cir. 1991), aff’d, 506 U.S. 534, 113 S. Ct. 933, 122 L. Ed. 2d 317 (1993)).
Fourth, the government established at trial that, on IRS Form 4684 for tax year 2013,
Jones improperly reported a business casualty loss of $1,405,376 he was required to pay in
a divorce settlement. J.A. 5101. The relevant section of Form 4684, Section B, instructs
taxpayers to report the amounts of losses and damages to businesses and income-producing
property they own. The $1.4 million loss reported on Jones’s Form 4684 is listed as a loss
for his holding company Falling Branch. Id. During his testimony at trial, however, Jones
admitted that the $1.4 million loss was based on a divorce settlement or judgment against
him, which Jones admitted he never paid. J.A. 7709–10. Any rational juror could conclude,
based on their common sense, that Jones’s listing of this amount as a casualty loss to Falling
Branch on the Form 4684 was improper.
Fifth, the government established at trial that Jones improperly reported substantial
embezzlement losses to Lifeline on the same 2013 Form 4684. During the divorce
proceedings, Jones sued his ex-wife, Karen Peterson-Jones, for embezzlement. J.A. 7444.
The embezzlement suit was dismissed around August 2010. J.A. 7445. During trial in the
instant case, Petersen-Jones testified that she never embezzled money from Lifeline. Id. A
rational juror could accept this testimony as evidence that Jones never sustained losses
from embezzlement.
Further, Jones received professional advice not to claim a deduction for the alleged
embezzlement losses. Jones’s accountant Jim Patton testified that he prepared Jones’s
corporate tax returns and, during discussions with Jones, told him that he could not include
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the alleged embezzlement losses on the corporate tax return for Lifeline because, “if you
report on the cash basis, you may not take a deduction for the embezzlement of income
you have not reported.” J.A. 7255–56. Jones had other communications with Patton’s
office on the topic, including emails advising Jones that embezzlement losses are
deductible “in the year the theft is discovered[,]” J.A. 7256, and “if the amounts have
previously been reported in income[,]” J.A. 7257. In the latter email, Jones was specifically
advised that “no amount ha[d] ever been taxed which could subsequently be written off.”
Id. While Jones concedes that Patton advised him not to claim the embezzlement losses on
his corporate return, he argues that Patton did not “unequivocally” tell Jones not to claim
the losses on his personal return. Appellant Br. 18. But in another email, Jones confirmed
his understanding that he could not claim the embezzlement losses on his personal tax
return, based on a discussion with an employee in Patton’s office. J.A. 7259. Despite this
advice, Jones reported embezzlement losses of $151,578.96 for Lifeline on his personal
Form 4684 for tax year 2013, several years after discovering the alleged losses. J.A. 5101.
Any rational juror could find that Jones acted willfully in improperly listing these alleged
losses as a casualty loss based on his communications with Patton and his office.
Finally, the jury could rely on Jones’s affirmative acts to evade the payment of
employment taxes as evidence of his willfulness in filing false returns for tax years 2013
through 2018. In United States v. Abboud, the Sixth Circuit held that “evidence that
Defendants willfully violated the tax laws with respect to the payment of employees was
probative as to Defendants’ willfulness in connection with the failure to file a tax return
and the underreporting of income.” 438 F.3d 554, 582 (6th Cir. 2006); see also United
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States v. Bok, 156 F.3d 157, 165 (2d Cir. 1998) (“[A] defendant’s past taxpaying record is
admissible to prove willfulness circumstantially.”). Here, the government presented
evidence that Jones had been committing affirmative acts of tax evasion since 2009.2
Based on the totality of the foregoing evidence, any rational juror could find Jones
to have acted willfully in failing to report substantial rental income generated from his
properties in St. Maarten and claiming improper deductions in his tax returns. The
substantial amount of the unreported rental income and the fact that he reported rental
income to the bank in St. Maarten, combined with actions he took that effectively
concealed his beneficial ownership of the St. Maarten properties, support a reasonable
inference that Jones knew his omission of the income in his tax returns was false and
unlawful. The substantial size of improper deductions Jones claimed for embezzlement
losses he never sustained and a divorce settlement or judgment he never paid, combined
with Patton’s testimony that Jones was advised not to claim the embezzlement losses,
support a reasonable finding that Jones acted willfully in claiming the improper deductions.
The jury’s finding of willfulness is further bolstered by evidence of Jones’s history evading
tax obligations.
For the foregoing reasons, we conclude that sufficient evidence was presented to
support Jones’s convictions for violating 26 U.S.C. § 7206(1) as charged in Counts Three
through Eight.
2 The evidence of Jones’s affirmative acts of tax evasion that preceded his filing of false individual income tax returns is discussed in greater detail in Part II.A.2 infra.
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2.
Jones argues that the government presented insufficient evidence to show that, after
August 14, 2014 (within the six-year limitations period),3 Jones corruptly obstructed or
endeavored to obstruct an IRS proceeding in violation of 26 U.S.C. § 7212(a), as alleged
in Count One, or that he committed an affirmative act of tax evasion in violation of 26
U.S.C. § 7201, as alleged in Count Two.
Regarding Count One, an individual violates 26 U.S.C. § 7212(a) by “either 1)
‘corruptly’ or ‘by force or threats of force’ endeavoring to ‘intimidate or impede’; or by 2)
‘in any other way corruptly or by force or threats of force’ impeding administration of the
tax laws.” United States v. Bostian, 59 F.3d 474, 477 (4th Cir. 1995) (quoting 26 U.S.C. §
7212(a)). This Court has interpreted the second clause, called the “omnibus clause,”
broadly to encompass multi-faceted schemes to gain an improper benefit or advantage or
to evade payment of taxes. See United States v. Mitchell, 985 F.2d 1275, 1279 (4th Cir.
1993); Bostian, 59 F.3d at 478–79. Actions taken corruptly to impede the administration
of tax laws need not be independently unlawful to violate § 7212(a). Bostian, 59 F.3d at
478–79 (citing Mitchell, 985 F.2d at 1278).
With respect to Count Two, “[i]n order to establish a violation of 26 U.S.C.A. §
7201, the government must prove: 1) that the defendant acted willfully; 2) that the
defendant committed an affirmative act that constituted an attempted evasion of tax
3 The applicable statute of limitations for both § 7201 and § 7212(a) violations is six years. See 26 U.S.C. § 6531(2) and (6).
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payments; and 3) that a substantial tax deficiency existed.” United States v. Wilson, 118
F.3d 228, 236 (4th Cir. 1997) (citing United States v. Goodyear, 649 F.2d 226, 227–28 (4th
Cir. 1981)); see also Sansone v. United States, 380 U.S. 343, 351, 85 S. Ct. 1004, 1010, 13
L. Ed. 2d 882 (1965). A “willful attempt” to evade may be inferred from “any conduct
having the likely effect of misleading or concealing.” Wilson, 118 F.3d at 236 (quoting
Goodyear, 649 F.2d at 228); see also Spies v. United States, 317 U.S. 492, 499, 63 S. Ct.
364, 368, 87 L. Ed. 418 (1943). Evidence proving willful tax evasion
is ordinarily circumstantial, since direct proof is often unavailable. Circumstantial evidence in this context may consist of, among other things, a failure to report a substantial amount of income, a consistent pattern of underreporting large amounts of income, the spending of large amounts of cash that cannot be reconciled with the amount of reported income, or any conduct, the likely effect of which would be to mislead or to conceal.
United States v. Thompson, 518 F.3d 832, 850–51 (10th Cir. 2008) (quoting United States
v. Kim, 884 F.2d 189, 192 (5th Cir.1989)).
Throughout the period between 2009 and 2019, Jones was aware that there was a
substantial deficiency of employment taxes that Lifeline failed to pay and that the IRS was
seeking to collect those taxes. IRS Revenue Officer Meador began attempting to collect
the delinquent employment taxes in May 2009. J.A. 6231–35. Her efforts included visiting
Lifeline’s offices and conducting a TFRP interview with Jones. During the meeting,
Meador made clear that she was attempting to collect delinquent taxes “for the first, second,
and third quarter of 2008.” J.A. 6242. Further, Meador testified that Jones was aware that
the taxes were delinquent.” Id. When questioned during the interview about why the
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employment taxes were delinquent, Jones stated that he was not able to pay because
“Medicaid and Medicare payments stopped, and that it was the high price of diesel fuel.”
Id. In June 2009, the IRS eventually assessed Jones with a TFRP, which made him liable
for the unpaid taxes. J.A. 5877–80, 6251–55. Therefore, Jones was aware of the substantial
tax deficiency and the IRS’s efforts to collect the unpaid taxes.
Substantial evidence was presented at trial to support reasonable findings that,
within the applicable limitations period, Jones took several acts to evade the payment of
employment taxes the federal government sought to collect from him.
First, evidence presented at trial established that Jones directed false responses to a
grand jury subpoena he received in October 2017 seeking records of his foreign bank
accounts for the prior five years. J.A. 646–52, 7166–68, 7172–75. Through his attorney,
Jones consistently responded that he did not have any responsive bank records to provide,
even after the government clarified that he was required to retrieve responsive records from
the banks. J.A. 653, 7172–75. Jones never produced responsive records. J.A. 7175. During
trial, the government presented substantial documentary evidence and testimony that Jones
owned or controlled at least five foreign bank accounts during the relevant period. J.A.
923–26, 6044, 6061–62, 6104–05, 6149–50, 6165–66, 6172–74, 6913–14, 6934–36, 6946,
6955–56, 6961–65, 7206–11. Any rational juror could conclude from this evidence that
Jones’s statements to the government were false and made intentionally and with
knowledge of their falsity, and that they impeded the federal government’s tax collection
efforts.
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Second, as explained in Part II.A.1 supra, trial evidence established that Jones was
responsible for filing a series of false individual income tax returns for tax years 2013
through 2018, and that he did so willfully. Jones’s ownership of significant offshore assets
and receipt of rental income from properties in St. Maarten were falsely omitted from each
of these returns. A rational juror could conclude from evidence of the IRS’s efforts to
collect the unpaid employment taxes that Jones’s concealment of his foreign assets and
rental income impeded the IRS’s collection efforts. A rational juror could conclude that,
by concealing his ownership of, and rental income from, high-value properties in St.
Maarten, Jones willfully attempted to avoid payment of tax obligations that were
outstanding at the time the false tax returns were filed.
At trial, the jurors were presented substantial evidence that Jones acted willfully in
attempting to evade payment of taxes and acted corruptly in impeding the federal
government’s collection efforts. Evidence that Jones acted willfully and corruptly after
August 2014 (within the limitations period) included actions he took before August 2014
to avoid paying the tax liability and to impede the government’s collection efforts.
Shortly after the IRS began collection efforts in May 2009 and assessed Jones with
a penalty in June 2009, Jones transferred properties he owned in Virginia out of his name.
In connection with these transactions, Jones caused a fraudulent transfer of $599,920 to
Marine Holding, J.A. 7036–38, and provided false documentation that Marine Holding
acquired a $400,000 loan Jones claimed to owe to Dana Mecum, J.A. 6377–82, which
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Mecum testified never existed, J.A. 6712–13.4 The documentation listed a false address for
Marine Holding; contained a forged signature for Tony Cabeceira, which Cabeceira
testified was a forgery and misspelled his name; and identified Cabeceira as Marine
Holding’s chief financial officer, which Cabeceira testified he was not. J.A. 6713–16, 6740,
6760, 6803, 6807–13, 7053–55, 7151–61. Marine Holding’s CEO, Luis Gioia, testified that
Marine Holding was not involved in any transfers of Jones’s Virginia properties, and he
never signed or authorized any documents for these transactions. J.A. 7050–57. Jones
provided false documentation of the Bell Road and Aspen Avenue property transactions to
Meador in response to her collection efforts and, later, to Special Agents of IRS-Criminal
Investigation during their criminal investigation. J.A. 608–28, 1128–57, 1144–50, 6812–
13, 7053–55.
In October 2010, Jones completed and gave Meador an IRS Form 433-A in which
he omitted his ownership of the luxury properties in St. Maarten and the rental income he
received from the properties, as well as his ownership of high-value cars and valuable
commercial property in Virginia. J.A. 5895–900. Trial evidence established that these
omissions were false. A statement of affairs Jones provided to a St. Maarten bank in May
2010 reflected assets totaling more than $14 million, including several properties in St.
Maarten generating substantial rental income, the holdings companies through which Jones
owned these properties, and 30 cars with a total value of over $1.8 million. J.A. 1313–16.
4 Mecum, an auto dealer, testified that a wire transfer he made to Jones was not a loan but was instead part of a payment for cars Mecum sold for Jones. J.A. 6710–13.
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As explained in Part II.A.1 supra, Jones took actions that tended to conceal the fact
that he was the beneficial owner of properties and bank accounts in St. Maarten. In or
around 2007, Jones hired a nominee company director to complete all documentation and
issue bearer shares for companies through which Jones owned the St. Maarten properties,
which hid Jones’s ownership of the companies and properties while he retained control and
collected rent. J.A. 6915.
In addition, while testifying at his trial, Jones continued to deny ownership of the
companies, properties, and bank accounts in St. Maarten, claimed that he paid Lifeline’s
employment taxes, denied owning a collection of high-value cars, and denied signing the
documents reflecting his ownership of various assets, J.A. 7677–78, 7685, 7689, 7693–95,
7701–03, all in the face of substantial testimony and documentary evidence to the contrary,
see J.A. 1313–16, 1666–69, 6061, 6766–69, 6913–14, 6946–47, 6952. Considering all of
the documentary evidence and testimony from other witnesses that tended to disprove
Jones’s testimony, a rational juror could conclude that Jones’s testimony was false and
given intentionally to impede the administration of tax laws.
In its totality, the foregoing evidence reflects a pattern of deceptive, clandestine, and
obstructive conduct by Jones in response to the IRS’s efforts to collect a tax liability for
which he was responsible. Any rational juror could conclude from this evidence that Jones
acted willfully and corruptly in support of a scheme to evade payment of Lifeline’s unpaid
employment taxes. We conclude, therefore, that the trial evidence was sufficient to support
Jones’s conviction on Counts One and Two of the superseding indictment.
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III.
Next, Jones challenges his sentence as procedurally unreasonable, arguing that the
district court improperly increased his offense level pursuant to U.S.S.G. § 2T1.1(b)(1).
“In reviewing whether a sentencing court properly applied the Guidelines, this Court
‘reviews the [sentencing] court’s factual findings for clear error and its legal conclusions de
novo.’” United States v. Henderson, 88 F.4th 534, 536 (4th Cir. 2023) (quoting United
States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006)). “Improper calculation of [the] advisory
sentencing range under the Guidelines constitutes significant procedural error, making
[the] sentence procedurally unreasonable” and subject to vacatur. United States v. Clay,
627 F.3d 959, 970 (4th Cir. 2010). “The government bears the burden of establishing the
applicability of a sentencing enhancement by the preponderance of the evidence.”
Henderson, 88 F.4th at 536.
To determine Jones’s Sentencing Guidelines range, the district court grouped all
counts of conviction pursuant to U.S.S.G. § 3D1.2(b). J.A. 7919. The district court began
with a base offense level of 22 pursuant to §§ 2T1.1(a)(1) and 2T4.1(I) because the offenses
involved tax evasion and the filing of false tax returns, and the total tax loss, which included
the unpaid employment taxes and the fraudulent deductions, was more than $1.5 million
but not more than $3.5 million. J.A. 7832, 7919. Over Jones’s objection, the district court
then applied a two-level increase pursuant to § 2T1.1(b)(2) based upon a finding that the
offenses involved sophisticated means. J.A. 7832–33. The district court also applied a two-
level increase pursuant to § 2T1.1(b)(1) over Jones’s objection, having found that Jones
failed to report and pay taxes withheld from Lifeline employees and instead “ke[pt] that
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money for himself.” J.A. 7833–34. Additionally, the district court applied a two-level
increase pursuant to § 3C1.1 for obstruction of justice and a two-level decrease pursuant to
§ 4C1.1(a) because Jones was a zero-point offender who satisfied the criteria for that
provision. J.A. 7834–35. The resultant total offense level was 26. J.A. 7835. Because
Jones’s criminal history category was I, his Sentencing Guidelines range was determined
to be 63 to 78 months of imprisonment. Id. In consideration of the 18 U.S.C. § 3553(a)
factors, the district court ultimately imposed a prison sentence of 78 months, comprised of
concurrent 36-month sentences for Counts One and Three through Eight and a consecutive
42-month sentence for Count Two. J.A. 7854.
Jones argues that the district court erred in imposing the two-level adjustment under
U.S.S.G. § 2T1.1(b)(1).
Section 2T1.1(b)(1) provides a two-level increase in a defendant’s offense level “[i]f
the defendant failed to report or to correctly identify the source of income exceeding
$10,000 in any year from criminal activity.” U.S.S.G. § 2T1.1(b)(1). The Application
Notes define “[c]riminal activity” as “any conduct constituting a criminal offense under
federal, state, local, or foreign law.” U.S.S.G. § 2T1.1 cmt. 4. The Background of § 2T1.1
states that “[f]ailure to report criminally derived income is included as a factor for
deterrence purposes.”
Here, the district court applied the § 2T1.1(b)(1) enhancement based on its
determination that “[i]t was plainly criminal activity for the defendant to take—to withhold
the moneys from his employees’ salaries and never pay that to the government[,]” and that
Jones kept the funds he withheld for himself. J.A. 7834. The district court’s factual findings
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are supported by a preponderance of the evidence adduced at trial. During all four quarters
of 2008 and 2009, Jones withheld more than $10,000 from wages earned by employees of
Lifeline as employment taxes but never paid these amounts to the government. It was not
clear error for the district court to conclude that Jones kept more than $10,000 of these
funds for himself. The funds Jones withheld totaled $186,519. J.A. 7913.
Furthermore, the district court did not err in concluding that Jones engaged in
“criminal activity” under § 2T1.1(b)(1) when he withheld funds from wages of Lifeline’s
employees and retained those funds for himself instead of holding them in trust for the
government and paying them over. This precise conduct constitutes a felony under the
Internal Revenue Code and is punishable by imprisonment and fine:
Any person required under this title to collect, account for, and pay over any tax imposed by this title who willfully fails to collect or truthfully account for and pay over such tax shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both, together with the costs of prosecution.
26 U.S.C. § 7202.5 As the president and owner of Lifeline, Jones was a “person” required
to collect employment taxes from the wages of Lifeline employees, hold them in trust for
5 We recognize that Jones was neither charged nor convicted of any 26 U.S.C. § 7202 violation, but “criminal activity” for purposes of U.S.S.G. § 2T1.1(b)(1) is not restricted to crimes of which the defendant has been convicted. See U.S.S.G § 1B1.3(a) (providing, as a general matter, that “specific offense characteristics . . . in Chapter Two . . . shall be determined” based, in part, on “all acts and omissions” by the defendant “that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense;” “all harm that resulted from” or “was the object of” those “acts and omissions;” and “any other information specified in the applicable guideline.”); United States v. McKinney, 686 (Continued) 23 USCA4 Appeal: 24-4288 Doc: 65 Filed: 09/19/2025 Pg: 24 of 31
the United States, and pay them over to the government. See 26 U.S.C. § 7343 (defining
“person” to include “an officer . . . of a corporation . . . , who as such officer . . . is under a
duty to perform the act in respect of which the violation occurs”); 26 U.S.C. § 3402
(requiring employers who pay wages to “deduct and withhold” taxes from those wages);
26 U.S.C. § 7501 (requiring that withheld taxes to be held “in trust for the United States”).
Jones’s willful retention of the taxes he withheld and failure to pay them over to the
government constituted a criminal violation of 26 U.S.C. § 7202 and therefore “criminal
activity” under U.S.S.G. § 2T1.1(b)(1). The money Jones criminally withheld from
employees of Lifeline and retained was “income” that he “failed to report” to the IRS.
U.S.S.G. § 2T1.1(b)(1). We conclude, therefore, that the district court did not err in
applying the two-level enhancement in § 2T1.1(b)(1).
The district court found support for its application of § 2T1.1(b)(1) in United States
v. Heard, 709 F.3d 413 (5th Cir. 2013). In Heard, the defendant was convicted of a
conspiracy to defraud the United States and two counts of tax evasion. 709 F.3d at 418.
The Fifth Circuit affirmed application of § 2T1.1(b)(1) based on the defendant having
“stole[n] from the IRS by withholding in excess of $10,000 in employment taxes . . . and
F.3d 432, 434–37 (7th Cir. 2012) (upholding enhancement for defendant’s failure to report income from uncharged mortgage fraud); United States v. Barakat, 130 F.3d 1448, 1453 (11th Cir. 1997) (“Although the jury found that the government had not proven the mail fraud conspiracy count beyond a reasonable doubt, the district court did not clearly err in finding that a preponderance of the evidence proved Barakat had received the unreported income from criminal activity.”).When Sentencing Guidelines provisions are restricted to offenses of conviction, they use exactly that term: “offense of conviction.”
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not paying the money to the IRS.” Heard, 709 F.3d at 423. The § 2T1.1(b)(1) enhancement
in the instant case is founded upon precisely the same conduct.
Jones offers several arguments in an effort to distinguish Heard. He argues that “the
criminal activity underlying Mr. Heard’s § 2T1.1(b)(1) enhancement was not tax evasion
but conspiracy to defraud the United States,” i.e., “a separate offense from that on which
the defendant faced sentencing under § 2T1.1.” Appellant Br. 24. In the instant case, Jones
argues, his retention of employment taxes—the conduct on which his § 2T1.1(b)(1)
enhancement is based—is part of the same tax evasion upon which his base offense level
was determined pursuant to §§ 2T1.1(a)(1) and 2T4.1. Id. at 25. Because the stolen
employment taxes treated as “income” under § 2T1.1(b)(1) were also counted as part of
the total tax loss used to determine his base offense level, Jones argues that applying the
two-level enhancement in § 2T1.1(b)(1) “improperly double counts the value of the unpaid
employee withholding[.]” Id. at 27.
We are not persuaded by any of these arguments. First, the crimes for which Jones
was charged and convicted are not the same crime the district court identified as grounds
for applying § 2T1.1(b)(1). Jones was convicted of corruptly endeavoring to obstruct the
IRS, in violation of 26 U.S.C. § 7212(a); tax evasion, in violation of 26 U.S.C. § 7291; and
six counts of filing false tax returns, in violation of 16 U.S.C. §7206(1). Although the
district court did not specifically cite any statute when it applied § 2T1.1(b)(1), the crime
described by the court is clearly reflected in 26 U.S.C. § 7202—that is, the defendant’s
failure to pay over employment taxes he was required by statute to collect and account for
as president and owner of Lifeline.
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Second, as Jones acknowledges, double counting is not generally proscribed by the
Sentencing Guidelines. See United States v. Hampton, 628 F.3d 654, 664 (4th Cir. 2010)
(“[T]here is a presumption that double counting is proper where not expressly prohibited
by the [G]uidelines.”). And there is nothing in the text of § 2T1.1(b)(1) or the broader
structure of § 2T1.1 to suggest that the unreported and criminally sourced income that
supports a § 2T1.1(b)(1) enhancement cannot include tax losses. What matters for purposes
of applying § 2T1.1(b)(1) is that the money at issue is “income,” that it exceeded $10,000
in any year, that it was derived from “criminal activity,” and that the defendant “failed to
report” it or “correctly identify” its source. The two-level enhancement imposed when
these conditions are met is intended to deter drawing substantial “income” “from criminal
activity.” In this way, the § 2T1.1(b)(1) enhancement serves a purpose separate from that
served by the tax loss assessed in §§ 2T1.1(a)(1) and 2T4.1. Those sections primarily assess
culpability based on loss to the government and, secondarily, gain to the defendant,
irrespective of whether the gain was criminally derived. 6 We are not persuaded that it is
improper to double count amounts of money that a defendant both denied the government
as tax losses and, in the same instance, criminally procured as income for himself. See
Heard, 709 F.3d at 424 (rejecting defendant’s double-counting argument).
6 See U.S.S.G. §§ 2T1.1, Background (“This guideline relies most heavily on the amount of loss that was the object of the offense. Tax offenses, in and of themselves, are serious offenses; however, a greater tax loss is obviously more harmful to the Treasury and more serious than a smaller one with otherwise similar characteristics. Furthermore, as the potential benefit from the offense increases, the sanction necessary to deter also increases.”).
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Jones is mistaken in his argument that, under our reading of § 2T1.1(b)(1), “any
case with a tax loss of more than $10,000 that could be considered ‘income’ would merit
an enhancement.” Appellant Br. 27. Only unreported “income exceeding $10,000 in any
year from criminal activity” merits the two-level increase. U.S.S.G. § 2T1.1(b)(1)
(emphasis added). Under our reading of § 2T1.1(b)(1), a defendant who only evades
payment of taxes by retaining income from lawful activity would not receive this
enhancement. Here, in contrast, the § 2T1.1(b)(1) enhancement was predicated upon
income Jones obtained criminally by taking it from Lifeline employees’ wages and keeping
it for himself rather than causing Lifeline to hold it in trust and pay it over to the federal
government. We agree with the district court: “This is not a case where it’s a simple failure
of Mr. Jones to pay his own taxes. That would not implicate 2T1.1(b)(1) . . . . This is his
failure to pay other people’s taxes and keep that money for himself, and that implicates
2T1.1(b)(1).” J.A. 7834 (citing United States v. Kearney, No. CR 19-2848 JB, 2024 WL
1112184 (D.N.M. Mar. 14, 2024)). The “criminal activity” through which Jones stole
employment taxes is a characteristic of his offense conduct that makes it more culpable
than simple evasion of taxes due on lawfully obtained income, and it is appropriate for the
two-level increase provided in § 2T1.1(b)(1).
In Heard, the Fifth Circuit rejected the defendant’s argument that the employment
taxes he stole from the IRS was “legitimate income” he earned from his security business.
709 F.3d at 423–24. The stolen tax money was “derived” from a criminal conspiracy
through which “Heard’s companies failed to pay to the IRS millions of dollars in
employment taxes.” Id. at 424. “[T]he illegality of the funds [was] demonstrated by
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Heard’s other tax convictions, which concern interference with the IRS’s collection of
these employment taxes.” Id. Similarly here, the “income” at issue was employment taxes
Jones derived from the crime of withholding it from Lifeline employees’ wages and
keeping it for himself instead of holding it in trust for the federal government and paying
it over. From there, like Heard, Jones interfered with the IRS’s collection of the unpaid
taxes and criminally continued to evade payment. The portion of the total tax loss in this
case attributable to Jones’s criminal failure to pay over employment taxes justified
application of § 2T1.1(b)(1), as long as it “exceed[ed] $10,000 in any year[,]” which it did.
Jones argues, in the alternative, that the rule of lenity should apply and forbid
imposing § 2T1.1(b)(1) enhancement in this case. The rule of lenity “favor[s] a more
lenient interpretation of a criminal statute ‘when, after consulting traditional canons of
statutory construction, we are left with an ambiguous statute.’” Kasten v. Saint-Gobain
Performance Plastics Corp., 563 U.S. 1, 16, 131 S. Ct. 1325, 1336, 179 L. Ed. 2d 379
(2011) (quoting United States v. Shabani, 513 U.S. 10, 17, 115 S. Ct. 382, 130 L. Ed. 2d
225 (1994)) (emphasis added). This rule “applies to the interpretation of the Sentencing
Guidelines in the same manner as it applies to the interpretation of criminal statutes.”
United States v. Blackburn, 940 F.2d 107, 109 (4th Cir. 1991). But we perceive no
ambiguity in § 2T1.1(b)(1). It plainly provides for a two-level enhancement in tax evasion
cases where the defendant has “failed to report or to correctly identify the source of income
exceeding $10,000 in any year from criminal activity,” as Jones failed to do in this case.
Thus, in this case, § 2T1.1(b)(1) applies, and the rule of lenity does not.
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IV.
The parties agree that a discrepancy between Jones’s orally pronounced sentence of
supervised release and his written judgment constitutes a sentencing error under United
States v. Rogers, 961 F.3d 291 (4th Cir. 2020), requiring a remand of the case for
resentencing. Rule 43(a)(3) of the Federal Rules of Criminal Procedure requires a criminal
defendant to be present at sentencing. “Because a defendant has a right to be present when
he is sentenced, a district court must orally pronounce all non-mandatory conditions of
supervised release at the sentencing hearing.” United States v. Singletary, 984 F.3d at 344
(4th Cir. 2021) (citing Rogers, 961 F.3d at 296–99). This requirement “is not a meaningless
formality[.]” Id. at 346 (quoting Rogers, 961 F.3d at 300). It is “a critical part of the
defendant’s right to be present at sentencing[,]” id. (quoting Rogers, 961 F.3d at 300)
(citation modified), because the defendant can only have an opportunity to object to a
discretionary condition of supervised release if she or he is present when the condition is
imposed, id. (citing Rogers, 961 F.3d at 298). A district court errs when it fails to pronounce
orally at sentencing all discretionary supervised release conditions subsequently imposed
in the written judgment. Rogers, 961 F.3d at 300. A Rogers error also occurs when there is
“a material discrepancy between a discretionary condition as pronounced and as detailed
in a written judgment . . . .” United States v. Mathis, 103 F.4th 193, 197 (4th Cir. 2024)
(citation omitted). For a material discrepancy constituting a Rogers-Singletary error, there
is “only one option—vacate and remand for a full resentencing.” Id. at 199–200.
Here, both parties agree that there is at least one material discrepancy between the
district court’s oral pronouncement of discretionary conditions of supervised release at
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sentencing and its written judgment. During Jones’s sentencing, the district court orally
pronounced as a discretionary condition of supervised release that Jones must “submit to
warrantless search and seizure to ensure compliance with these conditions of your person,
your home, your vehicle, your residence, your property, upon reasonable suspicion that the
probation officer believes there is a violation of the terms of this supervision.” J.A. 7858–
59. This condition is listed in the written judgment, but the judgment also requires Jones to
“warn any other occupants that the premises may be subject to searches pursuant to this
condition.” J.A. 7865. Specifically, the district court did not orally pronounce this condition
at sentencing. This omission constitutes an error under Rogers and Singletary that warrants
resentencing.
Indeed, the discrepancy between the supervised release conditions as orally
pronounced and those listed in the written judgment in this case is similar to that examined
in Mathis. In that case, the district court orally imposed a warrantless search requirement
on a defendant at the sentencing hearing and then added an additional requirement in the
written judgment that the defendant “warn other occupants that the premises may be subject
to searches[.]” Mathis, 103 F.4th at 198. On appeal, this Court concluded that the added
warning requirement was “inconsistent with the oral pronouncement and constitutes
reversible error . . . .” Bound by Rogers and Singletary, this Court recognized that the
Court’s “only option” was to “vacate and remand for a full resentencing.” Id. at 200. Our
precedents mandate the same outcome here.
We note that one material discrepancy between discretionary supervised release
conditions as orally pronounced and as written in the judgment is sufficient to vacate the
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sentence and remand for resentencing. See id. at 198 (“[U]nder our Rogers-Singletary
jurisprudence, one rotten apple spoils the whole barrel.”); Singletary, 984 F.3d at 346
(declining to address additional claims of sentencing error after detecting a reversible
sentencing error). Therefore, we need not examine the other potential grounds for Rogers
error asserted by Jones in this appeal.
For the reasons stated, Jones’s sentence shall be vacated and the case remanded to
the district court for resentencing.
For the reasons given above, the judgment of the district court is affirmed in part
and vacated in part, and the case is remanded for resentencing.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED