US v. Thomas Browning, No. 10-4172 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4172 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. THOMAS BROWNING, Defendant - Appellant. No. 10-4173 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RICKY NICHOLS, Defendant - Appellant. Appeals from the United States District Court for the Southern District of West Virginia, at Beckley. Irene C. Berger, District Judge. (5:09-cr-00065-1; 5:09-cr-00065-3) Submitted: November 4, 2010 Decided: Before NIEMEYER, AGEE, and WYNN, Circuit Judges. December 10, 2010 Affirmed by unpublished per curiam opinion. Derrick W. Lefler, GIBSON, LEFLER & ASSOCIATES, Princeton, West Virginia; J. Steve Hunter, STEVE HUNTER ASSOCIATES, L.C., Lewisburg, West Virginia, for Appellants. R. Booth Goodwin II, United States Attorney, Thomas C. Ryan, Assistant United States Attorney, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Thomas Browning and Ricky Nichols ( Appellants ) pled guilty, pursuant to a plea agreement, to one count of conspiracy to damage railroad property, in violation of 18 U.S.C. § 371 (2006). The district court sentenced each Appellant to a term of sixty months imprisonment. On appeal, Appellants allege that they should each have received a downward adjustment for acceptance of responsibility, pursuant to Guidelines Manual ( USSG ) § 3E1.1 (2008). U.S. Sentencing For the following reasons, we affirm. Whether an individual has accepted responsibility for his crime is a factual question, which this court reviews for clear error. United States v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007). A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has States v. U.S. district court s responsibility Gypsum been committed. Co., decision reduction 333 to is U.S. grant 364, or accorded (quoting Id. 395 deny great an United (1948)). acceptance deference. The of Id. (citing USSG § 3E1.1, cmt. n.5). Pursuant to USSG § 3E1.1, a defendant may be given a two- or three-level reduction in his offense level if he clearly demonstrates that he has accepted 3 responsibility for the offense. must In order to receive such a reduction, the defendant prove clearly by a preponderance recognized and of the evidence affirmatively responsibility for his criminal conduct. 359 F.3d 683, omitted). 693 (4th Although a Cir. 2004) guilty accepted he has personal United States v. May, (internal plea that reflects quotation some marks level of acceptance of responsibility, it does not automatically entitle a defendant to the reduction. F.3d at 693. truthfully USSG § 3E1.1, cmt. n.3; May, 359 To qualify for a reduction, a defendant must admit the conduct comprising the offense of conviction and admit, or not falsely deny, any relevant conduct for which he is accountable under USSG § 1B1.3. See USSG § 3E1.1, cmt. n.1(a). The district court did not clearly err in finding Appellants attempted to minimize their respective roles in the offense, and consequently, in denying them a two-point reduction for acceptance of responsibility. Moreover, the district court made adequate findings to underpin this conclusion, and those findings are supported by the record. We therefore affirm the judgment of the district court. 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 4
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