United States of America, Appellee, v. Kevin Funches, Appellant, 946 F.2d 1567 (D.C. Cir. 1991)

This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs and oral arguments of counsel. The court is satisfied, after reviewing the parties' presentations, that appropriate disposition of the case does not call for a further opinion. See D.C. Cir. R. 14(c).

Appellant's unsuccessful effort to defraud the District Court did not constitute a "fair and just" reason for permitting him to withdraw his guilty plea. See Fed. R. Crim. P. 32(b). Moreover, the District Court acted within its broad discretion in penalizing appellant for the attempted fraud by enhancing his sentence. See Sentencing Guidelines p 3C1.1. The District Court also acted within its discretion in denying him a two-point credit for acceptance of responsibility. See Sentencing Guidelines p 3E1.1.

Finally, we reject appellant's constitutional challenge to the sentencing guidelines. The statutory authorization for the guidelines creates no liberty interest in "individualized sentencing" that the guidelines themselves violate. Congress merely authorized the Sentencing Commission to determine which individualized criteria should be relevant to sentencing decisions. See generally United States v. Doe, 90-3027, slip op. (D.C. Cir. May 24, 1991); see also United States v. Ortez, 902 F.2d 61 (D.C. Cir. 1990).