United States of America v. Bruce Gregory Harrison, Iii

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4819
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BRUCE GREGORY HARRISON, III,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
District Judge. (1:10-cr-00411-JAB-1)
Submitted: September 26, 2013 Decided: October 3, 2013
Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James B. Craven, III, Durham, North Carolina, for Appellant.
Kathryn Keneally, Assistant Attorney General, Frank P. Cihlar,
Chief, Criminal Appeals & Tax Enforcement Policy Section,
Gregory Victor Davis, Damon W. Taaffe, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Bruce Gregory Harrison, III, was tried and convicted on 63
counts of violating federal tax laws. Following his conviction,
the district court sentenced Harrison to 144 months imprisonment
and three years of supervised release. The court also ordered
Harrison to pay restitution in the amount of $43,207,976 as a
condition of supervised release. Harrison now appeals, and we
affirm.
Harrison owned and operated several temporary staffing
agencies from offices in Greensboro, North Carolina. Although
Harrison employed a large workforce, he failed to file required
Internal Revenue Service (IRS) forms and failed to collect and
withhold, inter alia, payroll taxes. Harrison also failed to
file personal tax returns for 2004, 2005, and 2006. In late
2006, Harrison sold the staffing companies to two employees.
While those employees operated the companies, the payroll taxes
were paid and employment tax returns were filed. In 2008,
Harrison reacquired the companies and again stopped paying
payroll taxes. Harrison used these withheld payments to fund
his lifestyle, including the purchase of a luxury beach house
and the production of two motion pictures, National Lampoon’s
Pucked, featuring Jon Bon Jovi, and Home of the Giants.
For these actions, as well as efforts made to conceal his
criminal activities, a federal grand jury indicted Harrison on

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one count of corruptly endeavoring to obstruct the
administration of the internal revenue laws, in violation of 26
U.S.C. § 7212(a), 59 counts of failing to account for and pay
payroll taxes, in violation of 26 U.S.C. § 7202, and 3 counts of
willfully failing to file income tax returns, in violation of 26
U.S.C. § 7203. After a three-week trial, the jury convicted
Harrison on all counts. Following trial, the probation office
prepared a Pre-Sentence Report (PSR). The PSR calculated the
total tax loss as $43,951,921; this number included the withheld
payroll taxes, personal income taxes Harrison failed to pay for
2004, 2005, and 2006, and additional losses caused by the
staffing companies. The PSR calculated Harrison’s base offense
level as 28 and, with several enhancements, arrived at a total
offense level of 36 and a guidelines range of 188 to 235 months
imprisonment. The district court adopted the PSR and sentenced
Harrison to a below-guidelines sentence of 144 months
imprisonment. The court also ordered Harrison to pay
restitution of $43,207,976.1
On appeal, Harrison argues that the Government
constructively amended the indictment by presenting evidence
that he failed to pay federal unemployment tax returns, and that
1 The restitution order differed from the tax loss because
the tax loss included loss to the State of North Carolina, while
the restitution order included loss only to the IRS.

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restitution was not authorized in this case or, in any event,
was capped at $15.9 million. We reject both contentions.2
First, there was no constructive amendment in this case.
“A constructive amendment, also known as a ‘fatal variance,’
happens when the government, through its presentation of
evidence or its argument, or the district court, through its
instructions to the jury, or both, broadens the bases for
conviction beyond those charged in the indictment.” United
States v. Roe, 606 F.3d 180, 189 (4th Cir. 2010) (internal
quotation marks omitted). Harrison contends such an amendment
occurred in this case because the Government presented evidence
that he also failed to pay an unemployment tax that was not
charged in the indictment. This evidence, however, was
admitted—without objection—simply to show that Harrison’s
staffing agencies were still in operation in the years he failed
to submit payroll taxes. Likewise, the district court’s
instructions to the jury reinforced that Harrison was charged
“only for the actual conduct alleged in the indictment and not
anything else” (J.A. 2205), and specified repeatedly that
2 Harrison also challenges the sufficiency of the evidence
on Count 62, which charged him with failing to file a tax return
in 2005, and the district court’s imposition of a two-level
enhancement under U.S.S.G. § 2T1.1(b)(1). We have reviewed
these claims and find them to be without merit.

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Harrison was charged with 59 counts of failing to “pay over
payroll taxes.” (J.A. 2214).
Second, the restitution order is appropriate. Harrison
contends that offenses under Title 26 do not authorize
restitution and that, even assuming otherwise, any restitution
is capped at $15.9 million, the amount of unpaid taxes, rather
than the $43,207,976 million in tax loss caused by his scheme.
Harrison did not raise these challenges below and we thus review
them for plain error. See United States v. Engle, 676 F.3d 405,
424 (4th Cir. 2012). To establish plain error, Harrison must
show “that an error occurred, that the error was plain, and that
the error affected his substantial rights.” United States v.
Thompson, 554 F.3d 450, 454 (4th Cir. 2009). Even if Harrison
makes this showing, we retain the discretion to notice the error
and should do so only if the error “seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings.” United States v. Marcus, 560 U.S. 258, 130 S.Ct.
2159, 2164 (2010) (internal quotation marks omitted).
Because Harrison cannot show that the district court
committed error, let alone plain error, his claim must fail. To
begin with, the court was authorized to award restitution in
this case. Harrison argues that none of the restitution
statutes, including 18 U.S.C. § 3663 (the Victim and Witness
Protection Act), and 18 U.S.C. § 3663A (the Mandatory Victims

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Restitution Act), authorize restitution for violations of Title
26. While Harrison is correct, he overlooks the fact that the
court issued its restitution order as a term of Harrison’s
supervised release. Under 18 U.S.C. § 3583(d), a court may, as
a condition of supervised release, impose any condition of
probation listed in § 3563(b). That section authorizes
restitution to the “victim of the offense.” 18 U.S.C.
§ 3563(b)(2). Thus, it is well-settled that “the Supervised
Release Statute, together with the Probation Statute,
unambiguously authorizes federal courts to order restitution . .
. for any criminal offense, including one under Title 26.”
United States v. Batson, 608 F.3d 630, 635 (9th Cir. 2010). See
also United States v. Perry, 714 F.3d 570, 577 (8th Cir. 2013)
(“many circuits have noted [that] Congress has explicitly
granted district courts discretionary authority to make
restitution to a victim of the offense a condition of supervised
release, without regard to whether the defendant committed an
offense enumerated” in § 3663 and § 3663A) (internal quotation
marks omitted); United States v. Hassebrock, 663 F.3d 906, 923-
24 (7th Cir. 2011) (same).
Harrison’s alternative contention, that the restitution is
capped at $15.9 million, the identified tax loss on Counts 2-63,
fares no better. Harrison correctly notes that restitution is
limited to “the offense of conviction and [is] not for other

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related offenses of which the defendant was not convicted,”
Batson, 608 F.3d at 636, but overlooks his conviction on Count
One, for interference with the administration of the internal
revenue laws, in violation of 26 U.S.C. § 7212(a). This count
covered a broader swath of conduct and amply supports the full
restitution award. See United States v. Scheuneman, 712 F.3d
372, 380 (7th Cir. 2013) (holding that restitution order could
encompass losses “directly attributable” to a § 7212
conviction).
Accordingly, we affirm Harrison’s conviction and sentence.
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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