United States v. Holeston ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4231
CRAIG WAYNE HOLESTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-99-181)
Submitted: September 20, 2000
Decided: October 5, 2000
Before WILKINS and WILLIAMS, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Gregory M. Courtright, COLLINS & COURTRIGHT, Charleston,
West Virginia, for Appellant. Rebecca A. Betts, United States Attor-
ney, Steven I. Loew, Assistant United States Attorney, Charleston,
West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Craig Wayne Holeston appeals the 84-month sentence imposed
upon his guilty plea to damaging an energy facility, in violation of 18
U.S.C. § 1366(a) (1994). Because the district court did not clearly err
in finding that Holeston committed the offense in an attempt to con-
ceal another crime and that Holeston was not entitled to a reduction
in his offense level for acceptance of responsibility, we affirm.
In the early hours of August 23, 1999, Holeston stole candy from
a vending machine in the office building at the Arch Coal Hobet 21
coal mine site. He then set fire to the building, causing approximately
$4,500,000 in damage. At his Fed. R. Crim. P. 11 proceeding, the
prosecutor stated that Holeston burned the building in an attempt to
conceal the theft. Holeston told the judge that what the prosecutor had
said was correct.
The district court found that Holeston's base offense level plus
adjustments for special offense characteristics totaled 21 points. See
U.S. Sentencing Guidelines Manual §§ 2B1.3(c), 2K1.4(a)(4),
2B1.3(b)(1), 2B1.1(a), 2B1.1(b)(1)(P) (1998). Two levels were added
because the district court determined that Holeston committed the
offense in an attempt to conceal another offense. See USSG
§ 2K1.4(b)(1). The district court declined to reduce Holeston's
offense level for acceptance of responsibility. See USSG § 3E1.1.
With a resulting offense level of 23 and a criminal history category
of IV, Holeston's guideline range was 70-87 months. The court
imposed an 84-month sentence.
Holeston contends that the district court erred in finding that he had
committed the crime in an attempt to conceal the candy theft. He
claims that he was under the influence of alcohol and Xanax and was
not thinking clearly enough to have been able to formulate such a
2
scheme. Additionally, he told authorities that he did not know why he
had set the fire. Holeston maintains that the government simply had
no evidence that he started the fire in an effort to conceal another
crime.
The United States bears the burden of proving by a preponderance
of the evidence that the enhancement of 2K1.4(b)(1) applies. See gen-
erally United States v. Urrego-Linares, 879 F.2d 1234, 1239 (4th Cir.
1989). We review the district court's factual findings for clear error.
See United States v. Dawkins, 202 F.3d 711, 714 (4th Cir.), cert.
denied, ___ U.S. ___, 68 U.S.L.W. 3712 (U.S. May 15, 2000) (No.
99-9011). Here, Holeston agreed at his guilty plea proceeding with
the prosecutor's statement that Holeston set the fire to conceal the
theft. Further, there was testimony at sentencing that Holeston had
admitted to investigators that on the night of the building fire he also
had set fire to a vehicle to cover-up any evidence of his earlier break-
in of the vehicle. Additionally, investigators who went to Holeston's
home after the fire learned from Holeston's grandfather that Holeston
had placed a large amount of snacks and candy in the refrigerator and
then had burned them. Wrappers recovered from the scene of that fire
were consistent with items stolen from the vending machine. Finally,
there was evidence that Holeston's cousin had warned him--
erroneously--that a surveillance camera at the building would record
any crimes he might commit. Given these facts, the district court did
not clearly err in concluding that Holeston set fire to the building in
an attempt to conceal--indeed to destroy all evidence that he had
committed--another crime.
Holeston also contends that the district court should have reduced
his offense level for acceptance of responsibility. We review the dis-
trict court's denial of an adjustment for acceptance of responsibility
for clear error. See United States v. Holt, 79 F.3d 14, 17 (4th Cir.
1996). "The sentencing judge is in a unique position to evaluate a
defendant's acceptance of responsibility, [and its determination] . . .
is entitled to great deference on review." USSG§ 3E1.1, comment.
(n.5); see United States v. White, 875 F.2d 427, 430-31 (4th Cir.
1989). In light of Holeston's arrest for possession of marijuana in
December 1999, his threatening his grandparents, his failure to pro-
vide urine specimens five times while on bond, and his failure to
attend drug treatment on three occasions while on bond, the district
3
court did not clearly err in determining that this behavior was incon-
sistent with a finding that Holeston had accepted responsibility for his
crime.
We accordingly affirm the sentence. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
4
i