USCA4 Appeal: 22-4258 Doc: 35 Filed: 07/31/2023 Pg: 1 of 17

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4258

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JEFFREY M. REED,

Defendant – Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Bluefield. David A. Faber, Senior District Judge. (1:20-cr-00066-1)

Argued: March 10, 2023 Decided: July 31, 2023

Before WILKINSON, HARRIS, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Rushing wrote the opinion, in which Judge Wilkinson and Judge Harris joined.

ARGUED: David Robert Bungard, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Erik S. Goes, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF: Wesley P. Page, Federal Public Defender, Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. William S. Thompson, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. USCA4 Appeal: 22-4258 Doc: 35 Filed: 07/31/2023 Pg: 2 of 17

RUSHING, Circuit Judge:

A jury convicted Jeffrey M. Reed of two crimes arising out of an elaborate ploy to

intimidate an Internal Revenue Service (IRS) agent into halting her efforts to collect his

delinquent tax debt. On appeal, Reed challenges the validity of both convictions along

with three enhancements the district court imposed at sentencing. We affirm.

I.

Reed owed the IRS a substantial amount in past-due taxes. After the IRS’s ordinary

collection efforts failed, the agency transferred Reed’s case to its Abusive Tax Avoidance

Transactions division, a specialized unit that handles difficult cases involving tax avoiders

and repeat offenders. An IRS agent using the agency-approved pseudonym T.L. Blake was

assigned to pursue Reed’s case. Initially, Blake sent Reed a collection letter and attempted

to visit him at home, but to no avail. Blake also sent a notice of levy to Reed’s employer,

the Holiday Lodge & Conference Center in Oak Hill, West Virginia, directing the hotel to

garnish Reed’s wages. When the Holiday Lodge did not respond, Blake traveled to West

Virginia and visited the hotel. There, she served a final notice of levy directing the hotel

to begin garnishing Reed’s wages or risk facing a penalty.

The hotel’s owner, Sara Nelson, decided to comply with Blake’s directive and

garnish Reed’s wages. When Nelson told Reed her intentions, Reed became upset and

tried to convince Nelson to send a letter on his behalf, written by him, challenging the

garnishment. In one of Reed’s draft letters, he included a thinly veiled threat to sue Nelson

if she garnished his wages. Nelson declined to send a letter for Reed, garnished his wages,

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and soon fired him because of his hostility toward her and threat to sue her. She garnished

approximately $600 from one of Reed’s paychecks.

Around the same time, Reed mailed back to the IRS copies of documents Blake had

served on the hotel and mailed to Reed. In an accompanying letter, Reed claimed the

documents were instruments good for the value of his debt. Frivolous avoidance tactics

like this were not new to Reed. Years prior, in 2013, the IRS sent Reed a letter warning

him against such conduct. Blake referred the mailing to the IRS’s Frivolous Return Unit,

which handles such correspondence.

In response to Blake’s attempts to collect his taxes, Reed filed a lien and various

related documents against Blake and Nelson with the Mercer County, West Virginia clerk

alleging the two owed him nearly $5 million arising from 165 constitutional violations they

supposedly committed against him. Reed then recorded financing statements purporting

to perfect security interests in the lien. The financing statements listed Nelson and Blake

as lien debtors and asserted that Reed, as the creditor, had a security interest in their real

and personal property because of the supposed debt. Reed recorded one financing

statement against Blake in Maryland and one against Nelson in West Virginia, the latter of

which he twice amended. Before he filed the lien and related documents, Reed sent

“courtesy notices” of some of these documents to IRS officials on at least three occasions

to apprise them of “the legal action” he was taking against Blake. J.A. 460. He also sent

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letters to insurance commissioners in several States complaining that Blake and Nelson

had not provided bonding information to cover the amount alleged in the lien. 1

When Blake learned of the financing statement Reed had filed against her, she

referred it to the Treasury Inspector General for Tax Administration, which investigated

the filing. As part of the investigation, two officers interviewed Reed, who voluntarily

spoke with them at his home. Reed admitted creating and filing the lien and financing

statement against Blake, acknowledged receiving the 2013 letter warning him against

frivolous tax-avoidance tactics, and initialed each document. Reed explained he developed

the strategy to file a lien and financing statement by “talk[ing] to individuals and

research[ing] it on the internet and that [he] had concluded that this was going to be the

only way he could get the IRS to leave him alone.” J.A. 151. Although Reed disclaimed

an intention to try to enforce the lien, he told the officers he could enforce it “at any time”

and that the filings “would not go away without him signing off, or making them go away,

that they would exist continuously”; he also acknowledged that the filings could impact

Blake’s credit score and ability to obtain credit. J.A. 152.

Although Reed never attempted to enforce the lien, his filings negatively impacted

both Blake and Nelson. When Blake tried to purchase a home, she had to list her

pseudonym as an alias on her mortgage application. The lender then found Reed’s lien,

requiring Blake to undertake significant efforts to clear up the matter to complete her

1 Reed also sent Blake and two other IRS officials a notice alleging Blake had violated a copyright Reed supposedly owns in his name and owed him $9 million in damages. 4 USCA4 Appeal: 22-4258 Doc: 35 Filed: 07/31/2023 Pg: 5 of 17

purchase. As for Nelson, she perceived the lien and financing statement to be a serious

threat to her business and was afraid Reed would try to take the hotel from her. She later

reemployed Reed as an independent contractor when she needed additional maintenance

staff, reasoning that repairing their relationship might convince him to void the lien.

In May 2020, a grand jury charged Reed with filing or attempting to file a false lien

or encumbrance against a federal employee in violation of

. Reed moved

to dismiss, arguing that because he filed the lien against the IRS agent’s pseudonym, T.L.

Blake, he did not file it against an “individual” as required under Section 1521. The district

court denied the motion, concluding the indictment was sufficient and Reed’s arguments

on the merits were premature. The grand jury later returned a superseding indictment that

maintained the Section 1521 charge (Count 1) and added a charge for attempting to

interfere with the administration of internal revenue laws in violation of

(a) (Count 2), and the case proceeded to trial.

When the Government concluded its case-in-chief, Reed moved for a judgment of

acquittal. The district court reserved ruling on the motion, and the jury convicted Reed on

both counts. At sentencing, the court denied Reed’s motion for acquittal and explained the

decision in a written order. The court overruled Reed’s objections to various sentencing

enhancements and sentenced Reed to 60 months’ imprisonment on Count 1 and 36 months’

imprisonment on Count 2, to run concurrently, followed by 3 years of supervised release.

Reed appealed, and we have jurisdiction under

.

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II.

Reed contests the sufficiency of the evidence supporting his convictions on both

counts. Viewing the evidence in the light most favorable to the Government, we will

uphold a conviction if substantial evidence supports the jury’s verdict. See United States

v. Mathis,

(4th Cir. 2019). “Substantial evidence is evidence that a

reasonable finder of fact could accept as adequate and sufficient to support a conclusion of

a defendant’s guilt beyond a reasonable doubt.” United States v. Hackley,

(4th Cir. 2011) (internal quotation marks omitted). We do not “assess witness

credibility,” and we presume “that the jury resolved any conflicting evidence in the

prosecution’s favor.” United States v. Savage,

(4th Cir. 2018) (internal

quotation marks omitted). A defendant “bears a heavy burden” to justify reversal under

this standard.

(internal quotation marks omitted).

A.

Count 1 of the superseding indictment charged Reed with filing and attempting to

file a false lien or encumbrance against Blake in retaliation for her efforts to collect his

past-due taxes. At trial, the Government rested on the theory that Reed attempted to file a

false lien against the IRS agent who was working to collect his overdue taxes and only

failed to complete the crime because he used Blake’s pseudonym instead of her real name

on the lien. The jury accepted that argument. On appeal, Reed contends that his attempt

conviction is invalid because he filed the lien against a pseudonym, and so he did not

attempt to file it against an “individual,” as required under Section 1521. We disagree.

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Section 1521 of Title 18 makes it unlawful to “file[], attempt[] to file, or conspire[]

to file, in any public record . . . , any false lien or encumbrance against the real or personal

property of an individual described in section 1114, on account of the performance of

official duties by that individual, knowing or having reason to know that such lien or

encumbrance is false or contains any materially false, fictitious, or fraudulent statement or

representation.” An “individual described in section 1114” includes “any officer or

employee of the United States or of any agency in any branch of the United States

Government (including any member of the uniformed services)” as well as “any person

assisting such an officer or employee.”

(a). Congress enacted Section

1521 to prevent attempts to harass and intimidate federal employees in the exercise of their

official duties by filing false liens or encumbrances. See United States v. Neal,

(9th Cir. 2015); United States v. Reed,

(8th Cir. 2012).

Because Section 1521 covers attempts and conspiracies, “the statute is not confined

to completed acts” and “can be violated without completed conduct.” Neal,

; see United States v. Jordan,

, 397–398 (5th Cir. 2017). To obtain a

conviction on an attempt theory, the Government had to prove that (1) Reed “had culpable

intent to commit the crime” and (2) “he took a substantial step towards completion of the

crime that strongly corroborates that intent.” United States v. Engle,

, 419–

420 (4th Cir. 2012).

The evidence against Reed on Count 1 was overwhelming. Reed admitted to

Treasury Department investigators that he developed his scheme as “retaliation for the

[IRS] going after him” and with the intent “to get the IRS to leave him alone.” J.A. 151,

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182. He then took steps to carry out his plan by filing a lien and related financing statement

against Blake, a federal IRS agent, alleging a nearly $5 million debt. Reed candidly

admitted to investigators that he was responsible for these filings and acknowledged that

they could harm Blake’s credit score and ability to obtain credit. The allegations Reed

included in the lien itself leave no doubt he created and recorded the instrument in

retaliation for Blake’s enforcement actions. And the jury could conclude that Reed knew

or had reason to know the lien was fraudulent, given the arbitrariness of the debt

calculation, the absence of any credible support for it, and Blake’s testimony that she owed

Reed nothing.

Despite this evidence against him, Reed argues that he did not attempt to file a false

lien or encumbrance against an “individual” within the meaning of Section 1521 because

he filed the lien against “T.L. Blake,” the IRS agent’s pseudonym. According to Reed, the

statute does not apply to fictitious persons and his mistake about Blake’s real name

precludes criminal liability.

We agree with the district court that Reed’s argument misses the mark because he

attempted to file the lien against the property of a real federal employee. Even accepting

Reed’s definitions of “individual” for the sake of argument—“a single human being” or “a

private or natural person”—Blake’s use of a pseudonym does not make her any less an

“individual described in section 1114.” Opening Br. 17–18 (internal quotation marks

omitted). Blake was a federal employee and a “natural person” who testified at trial. She

used a pseudonym while on the job pursuant to a statute and IRS rules allowing her to do

so. See IRS Restructuring & Reform Act of 1998, Pub. L. No. 105–206, § 3706,

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685, 778 (1998); see also Haber v. United States,

, 755 n.6 (2d Cir. 2016);

Sanders v. United States,

(Table),

, at *1 (10th Cir. 1995).

The pseudonym was a constant feature of her employment as a revenue officer. And it

identified her specifically—for example, it was the name on her badge and business cards.

Indeed, the pseudonym so identified Blake that she felt compelled to list it as a known alias

on a personal mortgage application. Blake did not hide from Reed her identity as an IRS

agent or that she was attempting to enforce federal tax laws against him. She hid only her

real name.

The use of a pseudonym is fundamentally different from the creation of a wholly

fictitious persona. For example, Reed relies on United States v. Haas,

(4th

Cir. 2021), which concerned information about nonexistent children used to lure a suspect

during a sex-trafficking investigation. See

, 479–480. Interpreting a provision of

the Sentencing Guidelines, we noted that “the term ‘individual’” as used there did not

“unambiguously include[] fictitious victims.”

at 479 n.6. The problem for Reed, aside

from the different statutory context, is that Blake is a real person—and a real IRS agent—

working under an alias. She is no more fictitious than George Eliot or Mark Twain.

At best, Reed’s argument amounts to a factual impossibility defense, which “exists

where the objective is proscribed by the criminal law but a factual circumstance unknown

to the actor prevents him from bringing it about.” United States v. Hamrick,

(4th Cir. 1995) (internal quotation marks omitted). Reed doesn’t dispute on appeal

that he attempted to file a false lien against the IRS agent who was working to collect his

overdue taxes; he simply argues that his mistake about her real name prevented him from

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completing the crime. But factual impossibility is not a defense to an attempt charge. See

United States v. Williams,

(2008); Engle,

; Hamrick,

. So Reed’s argument fails. 2

Because the Government presented ample evidence to convict Reed of attempting

to file a retaliatory false lien against Blake, we affirm his conviction on Count 1.

B.

The jury also convicted Reed on Count 2, which charged a violation of the so-called

“Omnibus Clause” of

(a). Specifically, the superseding indictment

charged Reed with “corruptly . . . endeavor[ing] to obstruct or impede[] the due

administration of” the Internal Revenue Code.

(a). Reed argues his

conviction cannot be squared with the Supreme Court’s interpretation of the Omnibus

Clause in Marinello v. United States,

(2018). Again, we disagree.

Under Marinello, the Government had to prove that a “nexus” existed “between

[Reed’s] conduct and a particular administrative proceeding.”

. This is because

the phrase “due administration of [the Tax Code]” in the Omnibus Clause,

(a), does not include “routine, day-to-day work carried out in the ordinary course by

the IRS, such as the review of tax returns,” Marinello,

. Rather, the

clause reaches specific interference with “targeted governmental tax-related proceedings,

2 Reed asserts his argument is one of legal impossibility, but we are unconvinced. That defense “is available where the defendant’s acts, even if fully carried out as intended, would not constitute a crime.” Hamrick,

. Reed intended to file a false lien against the IRS agent who was attempting to collect his delinquent taxes. If carried out as intended, that conduct would certainly fall within Section 1521. 10 USCA4 Appeal: 22-4258 Doc: 35 Filed: 07/31/2023 Pg: 11 of 17

such as a particular investigation or audit” or “other targeted administrative action.” Id. at

1104, 1109; see United States v. Prelogar,

, 533–534 (8th Cir. 2021)

(discussing Marinello); United States v. Graham,

, 1258–1259 (11th Cir.

2020) (same).

Reed argues only that Blake’s actions were routine IRS work and not the kind of

targeted administrative action that Marinello requires. He does not contest the jury’s

finding that he corruptly endeavored to obstruct or impede Blake’s administration of

federal tax law. Nor does he challenge the jury instructions articulating the elements of the

crime. We conclude that substantial evidence supported the jury’s finding that Blake’s

enforcement efforts were a “particular administrative proceeding” such as “an investigation

or audit” and not “routine day-to-day work carried out in the ordinary course of business

by the IRS.” J.A. 385–386 (jury instructions).

By the time Blake was assigned to Reed’s case, the IRS’s regular collection efforts

had already failed, and the IRS had transferred Reed’s case to a specialized division. In

fact, the IRS had been trying to collect taxes from Reed for years. After being assigned to

Reed’s case, Blake completed “an analysis of the case,” “[i]ssued correspondence to

[Reed],” and “[t]ried to make field contact” by visiting Reed at home. J.A. 209. She then

issued a notice of levy to Reed’s employer, and when that produced no response, she

traveled to West Virginia and personally visited the Holiday Lodge to serve a final demand

that the hotel garnish Reed’s wages. These efforts were far from routine IRS work carried

out in the ordinary course and instead were a targeted investigation into and enforcement

action against Reed’s persistent refusal to pay taxes. See Graham,

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(upholding Section 7212(a) conviction for obstructing targeted IRS collection efforts that

included assigning revenue officers to the case, issuing notices of levies, and seizing the

defendant’s property for resale).

In response, Reed raises several unpersuasive arguments. First, he contends Blake’s

work was routine because she did no investigation to determine “the nature or amount of

the delinquency.” Opening Br. 25. But the jury heard that Blake inherited Reed’s case

from other revenue officers who had made unsuccessful collection attempts for years. And

Blake testified that she completed “a normal investigation” that included undertaking “an

analysis of the case and all the actions that had taken place prior to [her] assignment.” J.A.

209. Her analysis of the case and subsequent efforts to collect these past-due amounts can

qualify as targeted administrative action without necessitating a recalculation of the

delinquency. Second, Reed relies on Blake’s trial testimony that garnishing wages was a

part of her “day-to-day duties” and her “normal course of business.” J.A. 268. Yet what

constitutes routine work for an officer in a specialized division that handles difficult cases

and repeat tax avoiders does not define what is routine for the whole agency.

Third, Reed cites data indicating that in 2020 and 2021, the IRS sent several hundred

thousand notices of levy annually and argues this shows that garnishing wages is a routine,

day-to-day IRS action. See IRS, Internal Revenue Service Data Book, 2021 59 (2022).

However, data from the same years also shows the IRS received over 157 million

individual income tax returns in 2020 and over 167 million such returns in 2021. See

at 4–5. The vast disparity between the total numbers of individual returns and notices of

levy rebuts Reed’s argument that garnishments are akin to “routine administrative

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procedures that are near-universally applied to all taxpayers.” Marinello,

. Finally, Reed points out that the IRS did not seize any of his property for resale.

But neither Marinello nor the jury instructions in this case require such a seizure in order

to bring an administrative action within the Omnibus Clause of Section 7212(a).

Accordingly, we affirm Reed’s conviction on Count 2.

III.

Reed also challenges his sentence on appeal, disputing the district court’s

application of three sentencing enhancements. In assessing whether a sentence is

procedurally unreasonable because of a misapplication of the Guidelines, we review the

district court’s legal conclusions de novo and factual findings for clear error. See United

States v. Morehouse,

(4th Cir. 2022). “‘Where a Guidelines application

involves a mixed question of law and fact, the applicable standard turns on the nature of

the circumstances at issue.’” United States v. Dodd,

(4th Cir. 2014)

(quoting United States v. Adepoju,

(4th Cir. 2014)). “If the application

turns on a question of fact, the clear error standard applies; if it turns on a legal

interpretation, de novo review is appropriate.” Id.; see Adepoju,

(“If the

application is ‘essentially factual,’ we apply the clearly erroneous standard.” (quoting

United States v. Daughtrey,

(4th Cir. 1989))).

Reed first argues the district court erroneously applied a six-level enhancement to

Count 1 under U.S.S.G. § 2A6.1(b)(1). That Guideline, which applies to “threatening or

harassing communications,” “hoaxes,” and “false liens,” calls for a six-level increase “[i]f

the offense involved any conduct evidencing an intent to carry out such threat.” U.S.S.G.

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§ 2A6.1(b)(1). The word “threat” in Section 2A6.1(b)(1) has “the same meaning” as in

“statutes criminalizing threats.” United States v. Spring,

(4th Cir. 2002).

“The pivotal inquiry” for application of the enhancement “is into the defendant’s intent and

the likelihood that the defendant would carry out the threat,” as evidenced by “any acts”

demonstrating such an intent. United States v. Worrell,

(4th Cir. 2002)

(internal quotations marks and brackets omitted); see United States v. Spencer,

(4th Cir. 2015). Relevant conduct includes “both conduct that occurred

prior to the offense and conduct that occurred during the offense; however, conduct that

occurred prior to the offense must be substantially and directly connected to the offense,

under the facts of the case taken as a whole.” U.S.S.G. § 2A6.1 cmt. n.1. 3

The district court applied Section 2A6.1(b)(1) because Reed sent “courtesy notices”

to various IRS officials advising them of legal action he was initiating against Blake and

demonstrated his intent to carry out those threats by actually filing the false lien and related

financing statement. In support, the court relied on United States v. Jordan, in which the

Fifth Circuit upheld application of the same enhancement to a conviction under Section

1521 for filing false liens against a judge and prosecutor after threatening to do so. 851

F.3d at 395–396, 401–402.

3 Citing United States v. Campbell,

(4th Cir. 2022), Reed claims this commentary is inconsistent with the Guideline’s text and therefore inapplicable. But we considered and rejected a similar argument in United States v. Worrell,

, 877– 878 (4th Cir. 2002). Reed does not cite Worrell, much less explain why we should deviate from that decision here. 14 USCA4 Appeal: 22-4258 Doc: 35 Filed: 07/31/2023 Pg: 15 of 17

We find no clear error in the district court’s essentially factual determination that

Reed’s actions justified the enhancement. Reed’s “courtesy notices” to IRS officials

arguably constituted threats to initiate legal action against Blake to attempt to take her

property. And Reed’s public filing of the lien and financing statement were overt acts that

demonstrated his intent to carry out the threat if Blake did not halt her collection efforts

against him. As Reed told the Treasury Department investigators, he believed “he could

enforce [the lien] at any time” and that it “would not go away without him signing off or

making [it] go away.” J.A. 152. Reed’s counterargument that he was not convicted for

making threats is unpersuasive because, as the Guideline commentary explains, the

enhancement includes “prior acts of threatening the victim that have a substantial and direct

connection to the offense.” U.S.S.G. § 2A6.1 cmt. n.1.

Next, Reed contends the district court erred by applying an eight-level enhancement

to Count 2 for “causing or threatening to cause physical injury to a person, or property

damage, in order to obstruct the administration of justice.” U.S.S.G. § 2J1.2(b)(1)(B). The

Sentencing Commission included “property damage” in the enhancement “to address cases

in which property damage is caused or threatened as a means of intimidation or retaliation.”

Id. § 2J1.2 cmt. n.5. The district court determined that the lien Reed filed against Blake

and Nelson threatened “property damage” under the Guideline because the lien purported

to create a property right adverse to their ownership of their real and personal property in

order to interfere with and obstruct Blake’s enforcement of the tax laws. See Reed,

. On appeal, Reed asserts that a lien does not damage property, especially

where, as here, it does not actually encumber particular property.

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We find no reversible error in the district court’s analysis. Although Section

2J1.2(b)(1)(B) requires any personal injury to be “physical,” the Guideline does not limit

the term “property damage” in the same way. And the Guideline explicitly encompasses

“threatening” to cause property damage. Thus, we will not disturb the district court’s

determination that, by filing a lien against Blake’s and Nelson’s property, Reed “caus[ed]

or threaten[ed] to cause” damage to their property. See Permanent Mission of India to the

United Nations v. City of New York,

(2007) (“[A] lien has an immediate

adverse effect upon the amount which could be received on a sale, constituting a direct

interference with the property.” (internal quotation marks, brackets, and ellipses omitted));

United States v. Small,

(7th Cir. 2015) (reasoning that a threat to

file a lien was “an expressed intent to harm property”).

Finally, Reed contends the district court erred by applying a two-level enhancement

to Count 2 for conduct “otherwise extensive in scope, planning, or preparation.” U.S.S.G.

§ 2J1.2(b)(3)(C). Several factors may be relevant to that assessment, “‘including the length

and scope of the criminal activity as well as the number of persons involved.’” United

States v. Pegg,

, 860 (11th Cir. 2020) (quoting United States v. Holland,

(11th Cir. 1994)). The district court relied on Reed’s efforts to

convince Nelson not to garnish his wages, his numerous frivolous legal filings in multiple

States, and his “campaign of serving notarized documents on Blake” purporting to show

she “personally wronged him” and owed him “millions of dollars.” J.A. 557–558.

Although Reed cites cases suggesting his conduct was less extensive than some other

defendants who received the same enhancement, the district court’s reasoning does not

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leave us with a “definite and firm conviction that a mistake has been committed.” United

States v. Harvey,

(4th Cir. 2008) (internal quotation marks omitted). 4

Thus, we affirm the district court’s application of the challenged sentencing enhancements.

IV.

Upon review, we find no reason to disturb the jury’s verdict in this case or the

district court’s application of the Sentencing Guidelines. Accordingly, the judgment of the

district court is

AFFIRMED.

4 We also note that, because we affirm the Section 2J1.2(b)(1)(B) enhancement, any error under subsection (b)(3)(C) is harmless. Removing the two-level enhancement would still leave Reed’s Guidelines range on Count 2 above the statutory maximum and therefore not call into question his statutory-maximum sentence on that count. See United States v. Kobito,

(4th Cir. 2021) (holding that the proper application of one enhancement rendered any error in the application of another harmless “because, even without that enhancement, the statutory maximum would cap the Guidelines range”). 17