UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 95-30110 Summary Calendar _______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SAMUEL HENRY THOMAS,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Western District of Louisiana (94-CR-30015) _________________________________________________________________

January 16, 1996

Before JOLLY, JONES and STEWART, Circuit Judges.

PER CURIAM:*

Appellant Thomas, an attorney, pled guilty to two counts

of evading or defeating the payment of income taxes in violation of

. He was sentenced to imprisonment for 12 months

and, as a condition of the plea, was ordered to make restitution in

the amount of $108,000. He has filed a pro se appeal challenging

numerous particulars of the district court's evaluation of the loss

to the government by Thomas's failure to report and pay taxes for

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. a number of years. He also challenges the district court's use of

non-charged civil tax violations in calculating the amount of tax

loss and the court's order of restitution. We find no error and

affirm.

The district judge conscientiously evaluated Thomas's

evidence objecting to the presentence report in a hearing that

lasted two days. At the conclusion of the hearing, the court fully

explained his reasons for assessing a loss to the government of

over $120,000. We have considered Thomas's objections carefully in

light of the evidence produced by his experts and by the special

agent who testified for the government, and we do not find clear

error in the court's factual determinations.

Further, the court did not err in taking into account the

amount of self-employment tax, employers' annual federal

unemployment tax, and employers quarterly federal taxes, which also

went unpaid during the period in question, but which were not the

subject of criminal prosecution. Including those amounts, without

any civil penalties, fully accords with the specific language of

U.S.S.G. § 2T1.1, comment (n.2). Although Thomas cites the Daniel

case as supporting the exclusion of those amounts, see United

States v. Daniel,

(6th Cir. 1992), Daniel should not

be read as broadly as he asserts and is factually distinguishable.

See United States v. Pierce,

(6th Cir. 1994).

Finally, because the plea agreement specifically called

for restitution to the victim for tax years 1986-1989, the amount

2 and method of payment to be handled in the discretion of the court,

that provision was plainly enforceable.

The judgment and the sentence of the district court are

AFFIRMED.

3