United States v. Richard Fleming ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-2164
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Richard Fleming, *
* [UNPUBLISHED]
Appellant. *
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Submitted: January 16, 2008
Filed: April 1, 2008
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Before BYE, BEAM, and GRUENDER, Circuit Judges.
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PER CURIAM.
Richard Fleming appeals the 210 month sentence he received for enticing a
minor to engage in prostitution in violation of 18 U.S.C. § 2422(b). He argues the
district court1 erred when it included a two-level enhancement for obstruction of
justice pursuant to United States Sentencing Guidelines (U.S.S.G.) § 3C1.1 in
calculating his sentencing range under the advisory guidelines, and erred in denying
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
a downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1.2 The
district court applied an obstruction enhancement after finding he testified falsely at
his sentencing hearing by denying he attempted to recruit a fellow inmate to kill the
victim involved in the enticing charge. The district court also determined a reduction
for acceptance of responsibility was inconsistent with his conduct in attempting to
recruit a fellow inmate to kill the victim. The inmate he attempted to recruit also
testified at the sentencing hearing; the district court credited such testimony and
discredited Fleming's.
The determinations regarding both the obstruction enhancement and the denial
of acceptance of responsibility turn on the district court's credibility determinations,
an issue "that is virtually unreviewable on appeal." United States v. Craft, 478 F.3d
899, 902 (8th Cir. 2007) (quoting United States v. Behler, 14 F.3d 1264, 1273 (8th
Cir. 1994)). Where there are two permissible views of the evidence, as there were
here, the district court's choice of one over the other cannot be clear error. United
States v. Bolanos, 409 F.3d 1045, 1048 (8th Cir. 2005). We therefore affirm.
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2
In a supplemental brief, Fleming argues the government breached the plea
agreement by advocating for the obstruction enhancement and failing to move for a
reduction for acceptance of responsibility. That argument is without merit as the plea
agreement specifically allowed the government "to contest this adjustment [for
acceptance of responsibility] should the defendant subsequently . . . provid[e] false
information to the court."
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