United States v. Wright ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4785
ALFRED C. WRIGHT, a/k/a Zulu,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge;
Solomon Blatt, Jr., Senior District Judge.
(CR-95-883)
Submitted: November 30, 1998
Decided: January 12, 1999
Before LUTTIG and KING, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Dale L. DuTremble, Charleston, South Carolina, for Appellant. J.
Rene Josey, United States Attorney, Stanley D. Ragsdale, Assistant
United States Attorney, Columbia, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Upon his guilty plea, Alfred C. Wright was convicted of one count
of money structuring in violation of 31 U.S.C. § 5324(a)(3), (c)(2)
(1994). He appeals his conviction and sentence. Wright's attorney has
filed a brief certifying the following three issues as nonmeritorious
pursuant to Anders v. California, 386 U.S. 738 (1967): (1) whether
conduct not part of the offense of conviction was improperly used as
relevant conduct for purposes of sentencing; (2) whether Wright's
offense level was improperly enhanced based upon his role in the
offense; and (3) whether Wright was entitled to a downward depar-
ture. Wright's attorney also contends that the court's denial of a
reduction in offense level for acceptance of responsibility was in con-
flict with the Sentencing Guidelines. Wright was informed of his right
to file a pro se supplemental brief and has not done so. Finding no
reversible error, we affirm.
In a superseding indictment, Wright was charged with forty-six
gambling and money laundering offenses. According to the Govern-
ment, Wright was the leader of an extensive illegal gambling opera-
tion in South Carolina and New York. On the date scheduled for trial,
Wright waived indictment and pled guilty to a superseding informa-
tion charging one count of money structuring, a count not charged in
the superseding indictment. The specific transaction forming the basis
for the count was a $5000 deposit into one of Wright's bank accounts.
As part of the plea agreement, Wright and the Government agreed
that his base offense level under the Sentencing Guidelines would be
13. The base offense level was arrived at by totaling the amount of
funds detailed in Wright's superseding indictment charging him with
money laundering.
As relevant conduct, the presentence investigation report described
a series of structured bank deposits totaling over $180,000 and deter-
2
mined that a base offense level of 13 was proper. At sentencing,
despite the plea agreement, Wright objected to the use of other trans-
actions as relevant conduct to arrive at his base offense level, con-
tending that he only pled guilty to one transaction. The court rejected
the argument and Wright moved to withdraw his guilty plea. Sentenc-
ing was rescheduled for consideration of Wright's motion. At the res-
cheduled sentencing hearing, Wright withdrew his motion to
withdraw the guilty plea. The court sentenced him to thirty months'
imprisonment.
In reviewing challenges to sentencing, we accept findings of fact
unless clearly erroneous. Questions regarding the legal interpretation
of the guidelines are reviewed de novo. See United States v. Romer,
148 F.3d 359, 371 (4th Cir. 1998).
We find there was no error in computing Wright's base offense
level. Wright can be held accountable for committing similar acts of
money structuring. See U.S. Sentencing Guidelines Manual
§ 1B1.3(a)(1), (2) (1995). He "need not be convicted of the charges
constituting relevant conduct for him still to be held accountable for
them." United States v. Jones, 31 F.3d 1304, 1316 (4th Cir. 1994)
(defendant held accountable for similar acts of embezzling registered
mail).
The court imposed a four-level sentencing enhancement because it
found Wright was a leader or organizer of criminal activity that
involved five or more persons. See USSG§ 3B1.1(a). Wright
objected on the basis that the court should only look at the offense of
conviction and accordingly, there was no evidence that Wright's ille-
gal money structuring involved five persons. The court properly
found that an adjustment for role in the offense is not limited to con-
duct embodied in the offense of conviction. Rather, it may be based
upon the entirety of the defendant's relevant conduct. See United
States v. Fells, 920 F.2d 1179, 1184 (4th Cir. 1990). Thus, Wright's
objection was without merit and the court properly considered all of
Wright's criminal conduct, including his leadership of an extensive
gambling operation, before imposing the four-level enhancement. We
find that the court did not commit clear error when it found that
Wright's criminal enterprise involved five or more persons.
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Wright moved for a downward departure from the Sentencing
Guidelines range based upon successive state and federal prosecu-
tions. See USSG § 5K2.0. The court denied Wright's motion, finding
that Wright's situation was not sufficient for a downward departure.
We will not review this decision because appellate review of a district
court's discretionary denial of a motion for downward departure is
unavailable. See United States v. Davis, 98 F.3d 141, 145 (4th Cir.
1996), cert. denied, ___ U.S. #6D6D 6D#, 65 U.S.L.W. 3630 (U.S. Mar. 17,
1997) (No. 96-7755).
The court denied Wright's motion for a two-level reduction in
offense level for acceptance of responsibility. See USSG § 3E1.1(a).
The court stated three reasons for denying the motion: (1) the lateness
of Wright's decision to plead guilty; (2) Wright's failure to provide
complete financial information to the probation office and the clerk
of court; and (3) Wright's attempt to withdraw his guilty plea. The
court found that Wright "in no sense of the word . . . clearly accepted
responsibility," but rather, only "grudgingly accepted" his responsibil-
ity.
Wright contends that the timeliness of his guilty plea should not be
a factor in determining a two-level reduction for acceptance of
responsibility. He asserts that it is more properly used as a factor in
determining whether the defendant is entitled to an additional one-
level reduction under USSG § 3E1.1(b)(2). Furthermore, Wright con-
tends that his accountant was at fault for the delay in delivering finan-
cial information to the probation office and the court. Finally, Wright
contends that his motion to withdraw his guilty plea is not a relevant
factor in determining acceptance of responsibility because he was
challenging a sentencing enhancement.
Wright has the burden of establishing by a preponderance of the
evidence his entitlement to the two-level reduction for acceptance of
responsibility. See United States v. Harris, 882 F.2d 902, 907 (4th
Cir. 1989). A guilty plea does not automatically entitle the defendant
to a reduction. See id. at 905-06; see also United States v. Nale, 101
F.3d 1000, 1005 (4th Cir. 1996). A guilty plea is, of course, evidence
of acceptance of responsibility, "[h]owever, this evidence may be out-
weighed by conduct of the defendant that is inconsistent with such
acceptance of responsibility. A defendant who enters a guilty plea is
4
not entitled to an adjustment under this section as a matter of right."
USSG § 3E1.1, comment. (n.3).
Contrary to Wright's assertion, the timeliness of a guilty plea is a
relevant consideration under § 3E1.1(a). See USSG § 3E1.1, com-
ment. (n.1(h)). In this instance, Wright pled guilty on the day trial was
to commence and after a jury was selected. The Government was pre-
pared to present testimony, having gathered ten witnesses, some from
out-of-town, for the first day of trial. Wright's sister and son were
prepared to testify against him. "A last minute guilty plea is not usu-
ally evidence of a heart full of remorse." United States v. Ewing, 129
F.3d 430, 436 (7th Cir. 1997) (two-level reduction was properly
denied when defendant pled guilty one business day before trial was
to begin). The last-minute guilty plea more likely demonstrates a cal-
culated move to escape greater punishment. See United States v.
Akindele, 84 F.3d 948, 957 (7th Cir. 1996). Wright faced a possible
twenty-year sentence if convicted of the crimes charged in the indict-
ment.
Wright's failure to provide complete financial information to the
probation office and clerk of court is also a proper basis in which to
deny a reduction for acceptance of responsibility. We find that
Wright's refusal to disclose certain financial information is inconsis-
tent with his acceptance of responsibility because it demonstrates a
continued effort on his part to hide certain information. See United
States v. Brigman, 953 F.2d 906, 909 (5th Cir. 1992) (no two-level
reduction for acceptance of responsibility because, in part, defendant
refused to disclose financial information to probation officer); see
also United States v. Corral-Ibarra, 25 F.3d 430, 440 (7th Cir. 1994)
(refusal to discuss circumstances of offense with probation office con-
stitutes failure to accept responsibility); United States v. Cianscewski,
894 F.2d 74, 83 (3d Cir. 1990) (same).
Wright's attempt to withdraw his guilty plea is also a proper basis
for finding that he had not accepted responsibility. See United States
v. McCarty, 99 F.3d 383, 387 (11th Cir. 1996). He attempted to with-
draw his plea at sentencing despite the presentence investigation
report recommending the same base offense level as stipulated in the
plea agreement. He contended that he was not aware of the factors
that determined the base offense level. At the plea hearing, however,
5
Wright stated that he understood the terms of the agreement and how
the Sentencing Guidelines would be applied in his case. Based on the
foregoing, we find that the court did not err in denying Wright a two-
level reduction for acceptance of responsibility.
Pursuant to the requirements of Anders, this court has reviewed the
record for potential error and has found none. Therefore, we affirm
Wright's conviction and sentence. This court requires that counsel
inform his client, in writing, of his right to petition the Supreme Court
of the United States for further review. If the client requests that a
petition be filed, but counsel believes that such a petition would be
frivolous, then counsel may move this court for leave to withdraw
from representation. Counsel's motion must state that a copy thereof
was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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