US v. Thomas Browning


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:09-cr-00065-1 Copies to all parties and the district court/agency. [998482890] [10-4172, 10-4173]

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US v. Thomas Browning Doc. 0 Case: 10-4172 Document: 36 Date Filed: 12/10/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4172 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. THOMAS BROWNING, Defendant - Appellant.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: December 10, 2010 Before NIEMEYER, AGEE, and WYNN, Circuit Judges. Case: 10-4172 Document: 36 Date Filed: 12/10/2010 Page: 2 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 2 Case: 10-4172 Document: 36 Date Filed: 12/10/2010 Page: 3 PER CURIAM: Thomas Browning and Ricky Nichols ("Appellants") pled guilty, pursuant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 On appeal, Appellants allege of sixty months' imprisonment. that they should each have received a downward adjustment for acceptance Guidelines of responsibility, pursuant to U.S. Sentencing Manual ("USSG") 3E1.1 (2008). 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. Cir. 2007). United States v. Dugger, 485 F.3d 236, 239 (4th "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 U.S. has Gypsum been Co., committed." 333 U.S. Id. 364, 395 an (quoting (1948)). acceptance United The of Id. States v. district court's decision to is grant or deny great responsibility reduction accorded deference. (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 Case: 10-4172 Document: 36 Date Filed: 12/10/2010 Page: 4 offense. must In order to receive such a reduction, "the defendant by a preponderance and of the evidence that he has prove clearly recognized affirmatively accepted personal responsibility for his criminal conduct." 359 F.3d 683, 693 (4th a Cir. guilty 2004) plea United States v. May, quotation some marks of (internal reflects omitted). Although level 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 "the conduct comprising the offense of admit 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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