United States v. Hosea Atravis Perry ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4301
HOSEA ATRAVIS PERRY,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Anderson.
Margaret B. Seymour, District Judge.
(CR-98-305)
Submitted: September 21, 1999
Decided: October 5, 1999
Before MURNAGHAN, HAMILTON, and TRAXLER,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
David W. Plowden, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. J. Rene Josey, United States Attorney,
David C. Stephens, Assistant United States Attorney, Greenville,
South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Hosea Atravis Perry pled guilty to one count of bank fraud, see 18
U.S.C. § 1344 (1994), and received a sentence of twenty-four months
imprisonment. Appealing this sentence, Perry contends that the dis-
trict court erred in finding that he had not accepted responsibility
because he did not admit certain actions which were not relevant con-
duct. See U.S. Sentencing Guidelines Manual§ 3E1.1 (1998). We
affirm.
In the course of his guilty plea, his subsequent interview with the
probation officer, and his sentencing, Perry admitted forging checks
that belonged to an acquaintance, Mary Cunningham, depositing the
checks in his own accounts at several banks and in an account he
opened for his daughter, and withdrawing money before the checks
were dishonored. However, Perry gave conflicting accounts about
Cunningham's involvement, variously stating that he stole the checks
from her, that they hatched the scheme together, and that she gave
him the checks to use in paying his bills without telling him that there
was not enough money in the account to cover the checks he wrote.
Before Perry was sentenced, the prosecutor received a letter, purport-
edly from Cunningham, which stated that she knew about Perry's use
of the checks. However, in a telephone interview, Cunningham denied
writing the letter. At sentencing, Perry argued that he was entitled to
an offense level reduction under § 3E1.1 because he admitted the
facts of the offense even though it was never conclusively established
how the checks came into his possession. The district court disagreed.
Perry renews his argument on appeal.
While a defendant need not admit relevant conduct outside the
scope of the offense of conviction to qualify for an acceptance of
responsibility adjustment, see USSG § 3E1.1, comment. (n.1(a)), the
district court may deny the adjustment to a defendant who has pled
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guilty and admitted all relevant conduct if his conduct otherwise is
inconsistent with acceptance of responsibility. See USSG § 3E1.1,
comment. (n.3). A defendant may thus lose the adjustment by being
"less than forthright with authorities" about conduct related to the
offense, even if that conduct does not increase the offense level. See
United States v. Choate, 12 F.3d 1318, 1320 (4th Cir. 1993). Here, we
cannot say that the district court clearly erred in denying Perry the
adjustment.
We therefore affirm the sentence. 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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