United States v. Puntney , 260 F. App'x 579 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4695
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHRISTOPHER ALLEN PUNTNEY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:06-cr-00857-CMC)
Submitted: December 19, 2007 Decided: January 7, 2008
Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Langdon D. Long, Assistant Federal Public Defender, Columbia, South
Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, Dean A. Eichelberger, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Allen Puntney pled guilty to one count of
wire fraud, 18 U.S.C.A. § 1343 (West Supp. 2007), and was sentenced
to thirty months imprisonment. He appeals his sentence, contending
that the district court clearly erred in finding that he had not
accepted responsibility for his offense. U.S. Sentencing
Guidelines Manual § 3E1.1 (2006). We affirm.
At the sentencing hearing, the government presented
evidence that Puntney was involved in two incidents of criminal
activity in Indiana after he was charged with the instant offense,
while he was free on bond. One occurred on February 28, 2007, two
weeks before Puntney’s guilty plea on March 14, 2007. The second
occurred on March 20, 2007. The government showed a store video of
the February 28 incident, alleging that it showed Puntney, Jeremy
Stone, and Ken Selner using fraudulent credit cards to purchase
Apple Ipods and a Sony Playstation. A K-Mart video of the March
20, 2007 incident showed Mark Batti and Ken Selner, who were
arrested there after they used fraudulent credit cards to purchase
electronics. The government provided the court with transcripts of
interviews with Batti and Stone, who identified Puntney as a
participant in both incidents. Although Puntney was not present at
the K-Mart on March 20, Batti said he used fraudulent cards he
obtained from Puntney the day before.
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Puntney did not testify, but he denied through counsel
that he was one of the three people in the video of the February 28
incident. Puntney also took the position that Batti’s
identification of him as one of the participants shown in the
February 28 video was not reliable and that Batti and Stone were
lying when they said Puntney was involved in both incidents. The
court considered the store videos and the transcripts of Batti’s
and Stone’s interviews with law enforcement officers, concluded
that Puntney was involved in both incidents, and overruled his
objection to the presentence report.
On appeal, Puntney argues that the district court clearly
erred by denying him the adjustment based on pending state court
charges which he contested. A defendant may receive an adjustment
for acceptance of responsibility under § 3E1.1 if he demonstrates
“by a preponderance of the evidence that he has clearly recognized
and affirmatively accepted personal responsibility for his criminal
conduct.” United States v. May, 359 F.3d 683, 693 (4th Cir. 2004)
(quoting United States v. Nale, 101 F.3d 1000, 1005 (4th Cir.
1996)). A guilty plea alone is insufficient to entitle a defendant
to the adjustment. May, 359 F.3d at 693; USSG § 3E1.1, comment.
(n.3) (a guilty plea is significant evidence of acceptance of
responsibility, but is not dispositive). Continued criminal
conduct may be a basis for denial of the adjustment. United States
v. Dugger, 485 F.3d 236, 240-41 (4th Cir. 2007). The district
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court’s determination that a defendant has accepted responsibility
is reviewed for clear error. Id. at 239.
Puntney does not challenge the district court’s findings
on any specific point, but seems to contend only that the court
erred in accepting the “hearsay allegations” of Batti and Stone
concerning charges on which Puntney had not been yet convicted.
However, their allegations were supported by the store video of the
February 28 incident and by information about Puntney supplied by
Batti in his post-arrest police interview. The court viewed the
video in which Puntney allegedly appeared and determined that he,
not Batti, was the third participant on February 28. We conclude
that the district court had sufficient evidence to find, by a
preponderance of the evidence, that Puntney was involved in the two
incidents in Indiana. Therefore, the court’s determination that he
had not accepted responsibility was not clearly erroneous.
Accordingly, we affirm the sentence imposed by the
district court. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED
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