United States v. Lewis , 282 F. App'x 254 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4066
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WALTER LEWIS, JR., a/k/a Skeet,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
Senior District Judge. (5:07-cr-00005-FPS-JES-1)
Submitted: May 29, 2008 Decided: June 20, 2008
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Franklin W. Lash, Wheeling, West Virginia, for Appellant. Sharon
L. Potter, United States Attorney, John C. Parr, Assistant United
States Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Walter Lewis, Jr., pled guilty to possession with intent
to distribute more than five grams of cocaine base. He failed to
appear at his original sentencing hearing and was arrested
approximately seven weeks later in Ohio. At his rescheduled
sentencing hearing, the district court gave Lewis a two-level
sentencing enhancement for obstruction of justice for his failure
to appear under U.S. Sentencing Guidelines Manual (“USSG”) § 3C1.1
(2007), comment. (n.4(e)) and, for the same reason, declined to
credit him with acceptance of responsibility under USSG § 3E1.1,
comment. (n.4). On appeal, Lewis argues that the district court
erred by declining to give him credit for acceptance of
responsibility given his decision to plead guilty. For the reasons
that follow, we affirm.
It is the defendant’s burden to demonstrate by a
preponderance of the evidence that he has accepted responsibility
for his offense, United States v. Harris, 882 F.2d 902, 906-07 (4th
Cir. 1989), and the district court’s determination of the matter is
reviewed for clear error. United States v. Kise, 369 F.3d 766, 771
(4th Cir. 2004). A defendant who receives an adjustment for
obstruction of justice generally may not receive an adjustment for
acceptance of responsibility, absent extraordinary circumstances
not present in the instant appeal. USSG § 3E1.1, comment. (n.4);
United States v. Hudson, 272 F.3d 260, 263-64 (4th Cir. 2001). We
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find no clear error in the district court’s decision to deny Lewis
credit for acceptance of responsibility. Id. at 263.
Accordingly, we affirm. 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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