Opinion
No. 08-4066.
Submitted: May 29, 2008.
Decided: June 20, 2008.
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).
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.
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
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 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.