United States v. King ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4228
ANDREW CARLESTA KING,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
N. Carlton Tilley, Jr., District Judge.
(CR-97-226)
Submitted: September 29, 1998
Decided: December 15, 1998
Before WILKINS and LUTTIG, Circuit Judges, and
HALL, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Bryan E. Gates, Jr., Winston-Salem, North Carolina, for Appellant.
Walter C. Holton, Jr., United States Attorney, John W. Stone, Jr.,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Andrew Carlesta King and Russell Wright robbed a bank in James-
town, North Carolina, on September 22, 1997. The next day, they
robbed another bank in Burlington, North Carolina, and were cap-
tured immediately afterward. King subsequently pled guilty to an
information charging armed robbery of the Jamestown bank, see 18
U.S.C.A. § 2113(d) (West Supp. 1998), and to Counts Two and Three
of an indictment charging armed robbery of the Burlington bank and
carrying and using a firearm during a crime of violence, see 18
U.S.C.A. § 924(c) (West Supp. 1998). King was sentenced as a career
offender to a term of 410 months imprisonment. See U.S. Sentencing
Guidelines Manual § 4B1.1 (1995). He appeals the sentence, contend-
ing that the district court erred in finding that he had not accepted
responsibility for his offense because he denied striking one of the
bank employees with the shotgun he carried during the robberies. See
USSG § 3E1.1. We affirm.
During the Jamestown bank robbery, branch manager Patricia
Scoggin was struck several times with the butt of a gun on her left
hip or buttock and once on her shoulder. She was not sure whether
all the blows had been dealt by the same robber. After his guilty plea,
King admitted in his interview with the probation officer that he car-
ried a sawed-off shotgun in both robberies. However, in his written
objections to the presentence report, King denied striking Ms. Scog-
gin. At sentencing, the district court heard testimony from Ms. Scog-
gin and Helen Rodriguez, a teller in the Jamestown bank, and
reviewed a series of bank photographs which recorded the robbery.
The court determined that it was indeed King who struck Scoggin
with the shotgun. Finding that King had frivolously objected to part
of his relevant conduct which was described in the presentence report,
the district court found that he had not accepted responsibility. The
court considered imposing a two-level enhancement for bodily injury,
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see USSG § 2B3.1(b)(3)(A) (Scoggin had been severely bruised), but
did not do so because King's career offender sentence made the
enhancement unnecessary.
A defendant has the burden of demonstrating to the district court
that he has accepted responsibility for his offense. See United States
v. Myers, 66 F.3d 1364, 1371 (4th Cir. 1995). The commentary to
USSG § 3E1.1 provides that, to earn a reduction for acceptance of
responsibility, a defendant must truthfully admit the conduct underly-
ing the offense of conviction and truthfully admit--or not falsely
deny--any additional relevant conduct for which he is accountable.
See USSG § 3E1.1, comment. (n.1(a)). A defendant need not admit
relevant conduct which is outside the offense of conviction; however,
falsely denying, or frivolously contesting, relevant conduct that the
court determines to be true is conduct "inconsistent with acceptance
of responsibility." Id. The district court's decision as to whether a
defendant has accepted responsibility is a factual determination which
we will affirm unless it is clearly erroneous. See United States v.
Curtis, 934 F.2d 553, 557 (4th Cir. 1991).
King asserts that he earned the adjustment by admitting his
involvement in the bank robberies and entering a guilty plea, and
claims that he was not required to admit anything further. He argues
that his objection to being identified as the robber who struck Ms.
Scoggin was not frivolous because "no witness was able to positively
identify which defendant struck any particular blow." We find that
King denied a portion of his relevant conduct in the face of his own
admission that he carried the shotgun and persisted in his denial
despite conclusive evidence that he used the gun to strike most, and
possibly all, of the blows to Scoggin. King's denial was frivolous and
the district court did not clearly err in finding that he had not accepted
responsibility for his offense.
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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