United States v. Thomas-Ingram ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4279
WILLIE MAE THOMAS-INGRAM, a/k/a
Willie Mae White, a/k/a Poochie
Thomas,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, Chief District Judge.
(CR-96-83-V)
Submitted: April 30, 1998
Decided: May 18, 1998
Before HAMILTON, LUTTIG, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Randolph Marshall Lee, Charlotte, North Carolina, for Appellant.
Mark T. Calloway, United States Attorney, Thomas G. Walker, Assis-
tant United States Attorney, Charlotte, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Willie Mae Thomas-Ingram appeals the sixty-three month sentence
she received after pleading guilty to bank fraud and aiding and abet-
ting bank fraud. Thomas-Ingram contends that the district court's fac-
tual findings at the sentencing hearing were erroneous because the
court accepted the Government's hearsay evidence over her own testi-
mony in determining to impose certain Guidelines 1 enhancements and
deny certain reductions. For the reasons that follow, we affirm.
We review a district court's factual findings underlying sentencing
for clear error. See 18 U.S.C.A. § 3742(e) (West Supp. 1998). The
statute directs appellate courts to give "due deference" to a court's
application of the Guidelines to the facts of each case. Id. "Due defer-
ence" is a phrase of flexible interpretation, ranging from clear error
review for factual findings to de novo review for legal determinations.
United States v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir. 1989). In
determining facts relevant to sentencing, courts are not limited to con-
sideration of evidence which would be admissible at trial. See 18
U.S.C. § 3661 (1994). Thus, the sentencing court may even consider
uncorroborated hearsay, so long as the defendant is provided an
opportunity to rebut or explain it. See United States v. Falesbork, 5
F.3d 715, 722 (4th Cir. 1993). Section 6A1.3(a) of the Guidelines,
which provides that otherwise inadmissible evidence may be consid-
ered so long as the information contains "sufficient indicia of reliabil-
ity to support its probable accuracy," does not restrict the court's
ability to consider reliable hearsay. See United States v. Bowman, 926
F.2d 380, 381 (4th Cir. 1991). For sentencing purposes, judges may
consider any reliable information. Id. (finding reliable uncorroborated
testimony of confidential informant).
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1 U.S. Sentencing Guidelines Manual, ("U.S.S.G. or Guidelines")
(1995).
2
Thomas-Ingram, pursuant to the recommendation of the presen-
tence report ("PSR"), received a 4-level enhancement as an organizer
and a 2-level enhancement for obstructing justice, see USSG
§§ 3B1.1(a), 3C1.1, and was denied a reduction for being a minor or
minimal participant. See USSG § 3B1.2. She alleges that the district
court erred in denying her objection to the PSR based upon its flawed
credibility determinations at the sentencing hearing. At the hearing,
a Secret Service agent testified based upon statements made to him
by Thomas-Ingram's co-conspirators and other evidence gathered in
the investigation. According to the agent's testimony, Thomas-Ingram
was the instigator and organizer of the bank fraud scheme. She
encouraged her co-conspirators to open the various fraudulent
accounts, supplied fraudulent checks to deposit in these accounts, and
divided the ill-gotten funds between the co-conspirators. Despite her
counsel's cross-examination of the agent and Thomas-Ingram's testi-
mony to the contrary, the sentencing judge accepted the Govern-
ment's evidence and imposed sentence accordingly. 2 The credibility
of Thomas-Ingram's testimony is best resolved by the trial judge, and
we will not second guess the court's findings of fact under these cir-
cumstances. See Bowman, 926 F.2d at 381.
Accordingly, we affirm Thomas-Ingram's sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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2 Thomas-Ingram alleges no error in the court's interpretation or appli-
cation of the Guidelines other than its factual findings at the sentencing
hearing.
3