United States v. Maloney ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5396
ALFONZIA MALONEY, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-94-755)
Submitted: January 11, 1996
Decided: February 2, 1996
Before RUSSELL, HALL, and WILKINSON, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Langdon D. Long, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. J. Preston Strom, Jr., United States
Attorney, John M. Barton, Assistant United States Attorney, Colum-
bia, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Alfonzia Maloney, Jr., pled guilty to bank robbery, 18 U.S.C.A.
§ 2113(a), (d) (West Supp. 1995), and received a sentence of 142
months imprisonment. He contends on appeal that the district court
clearly erred in denying him a reduction for acceptance of responsibil-
ity, United States Sentencing Commission, Guidelines Manual,
§ 3E1.1 (Nov. 1994), and in enhancing his sentence for obstruction of
justice. USSG § 3C1.1. Finding no clear error, we affirm the sentence.
A lone gunman robbed the South Carolina National Bank in
Columbia, South Carolina, on November 15, 1993. Nearly a year
later, Maloney was arrested for the robbery. The demand note had
been written on Maloney's electric power bill and his fingerprints
were on it. Bank photographs of the robbery resembled Maloney, who
was recovering from facial burns at the time of the robbery. The tell-
ers all described the robber as having lumps or scars on one side of
his face. However, when he entered his guilty plea, Maloney told the
district court that he was not the man who entered the bank. Rather,
he said he had driven the getaway car for Wadell Patterson, who had
actually robbed the bank. The district court accepted Maloney's plea,
finding that he was guilty as an aider and abettor even if his version
of events were accepted. Wadell Patterson was never located, nor was
his existence confirmed.
Maloney persisted in his story when he was interviewed by the pro-
bation officer and at his sentencing hearing. The district court found
that Maloney was the person who had entered and robbed the bank
and that he had lied under oath when he denied that fact at the Fed.
R. Crim. P. 11 hearing. As a result, the court found that Maloney had
not earned an acceptance of responsibility reduction and that an
adjustment for obstruction of justice was appropriate.
Maloney argues first that he accepted responsibility for his actual
conduct, entered a timely guilty plea, and cooperated with the govern-
ment thereafter. However, the most important factor which the court
considers in determining acceptance of responsibility is the defen-
dant's truthful admission of the conduct comprising the offense and
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any relevant conduct which the court determines to be true. USSG
§ 3E1.1, comment. (n.1(a)). The district court found that Maloney
was the sole person responsible for the robbery, a fact Maloney did
not admit. In this circumstance, we cannot say the district court's
finding that Maloney had not accepted responsibility for his offense
was clearly erroneous.
Second, Maloney contends that the district court erred in enhancing
his sentence for obstruction of justice without making the finding
required under United States v. Dunnigan, 507 U.S. 87 (1993), that
he had willfully testified falsely concerning a material matter. Unlike
the defendant in Dunnigan, who perjured herself testifying on her
own behalf at trial, Maloney's enhancement was based on a false
statement given first during his guilty plea and later to the probation
officer and to the sentencing court. His right to testify at trial was not
implicated. However, the district reviewed Dunnigan and found that
a false statement to the court in the course of a guilty plea was equally
deserving of sanction. See USSG § 3C1.1, comment. (n.3(f), (h))
(enhancement applies to materially false statement to judge or to pro-
bation officer in respect to presentence report).
The question is whether the court made an adequate finding con-
cerning the materiality of Maloney's false statement. A materially
false statement would, if believed, "tend to influence or affect the
issue under consideration." USSG § 3C1.1, comment. (n.5). The dis-
trict court's very brief finding on obstruction of justice followed a
long discussion among the parties about Maloney's statement, during
which the court suggested that Maloney may have made it initially in
the belief that an accomplice would be sentenced more leniently than
a principal. A finding of materiality is implicit in the court's observa-
tion. The false statement was also germane to the determination of
whether Maloney had accepted responsibility for his conduct. In light
of these factors, we find that the district court's findings were ade-
quate and that the court was not clearly erroneous in concluding that
the enhancement for obstruction of justice should apply.
Accordingly, the sentence imposed by the district court is affirmed.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED
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