UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5396

ALFONZIA MALONEY, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Dennis W. Shedd, District Judge.

(CR-94-755)

Submitted: January 11, 1996

Decided: February 2, 1996

Before RUSSELL, HALL, and WILKINSON, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Langdon D. Long, Assistant Federal Public Defender, Columbia,

South Carolina, for Appellant. J. Preston Strom, Jr., United States

Attorney, John M. Barton, Assistant United States Attorney, Columbia, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Alfonzia Maloney, Jr., pled guilty to bank robbery, 18 U.S.C.A.

§ 2113(a), (d) (West Supp. 1995), and received a sentence of 142

months imprisonment. He contends on appeal that the district court

clearly erred in denying him a reduction for acceptance of responsibility, United States Sentencing Commission, Guidelines Manual,

§ 3E1.1 (Nov. 1994), and in enhancing his sentence for obstruction of

justice. USSG § 3C1.1. Finding no clear error, we affirm the sentence.

A lone gunman robbed the South Carolina National Bank in

Columbia, South Carolina, on November 15, 1993. Nearly a year

later, Maloney was arrested for the robbery. The demand note had

been written on Maloney's electric power bill and his fingerprints

were on it. Bank photographs of the robbery resembled Maloney, who

was recovering from facial burns at the time of the robbery. The tellers all described the robber as having lumps or scars on one side of

his face. However, when he entered his guilty plea, Maloney told the

district court that he was not the man who entered the bank. Rather,

he said he had driven the getaway car for Wadell Patterson, who had

actually robbed the bank. The district court accepted Maloney's plea,

finding that he was guilty as an aider and abettor even if his version

of events were accepted. Wadell Patterson was never located, nor was

his existence confirmed.

Maloney persisted in his story when he was interviewed by the probation officer and at his sentencing hearing. The district court found

that Maloney was the person who had entered and robbed the bank

and that he had lied under oath when he denied that fact at the Fed.

R. Crim. P. 11 hearing. As a result, the court found that Maloney had

not earned an acceptance of responsibility reduction and that an

adjustment for obstruction of justice was appropriate.

Maloney argues first that he accepted responsibility for his actual

conduct, entered a timely guilty plea, and cooperated with the government thereafter. However, the most important factor which the court

considers in determining acceptance of responsibility is the defendant's truthful admission of the conduct comprising the offense and

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any relevant conduct which the court determines to be true. USSG

§ 3E1.1, comment. (n.1(a)). The district court found that Maloney

was the sole person responsible for the robbery, a fact Maloney did

not admit. In this circumstance, we cannot say the district court's

finding that Maloney had not accepted responsibility for his offense

was clearly erroneous.

Second, Maloney contends that the district court erred in enhancing

his sentence for obstruction of justice without making the finding

required under United States v. Dunnigan, 507 U.S. 87 (1993), that

he had willfully testified falsely concerning a material matter. Unlike

the defendant in Dunnigan, who perjured herself testifying on her

own behalf at trial, Maloney's enhancement was based on a false

statement given first during his guilty plea and later to the probation

officer and to the sentencing court. His right to testify at trial was not

implicated. However, the district reviewed Dunnigan and found that

a false statement to the court in the course of a guilty plea was equally

deserving of sanction. See USSG § 3C1.1, comment. (n.3(f), (h))

(enhancement applies to materially false statement to judge or to probation officer in respect to presentence report).

The question is whether the court made an adequate finding concerning the materiality of Maloney's false statement. A materially

false statement would, if believed, "tend to influence or affect the

issue under consideration." USSG § 3C1.1, comment. (n.5). The district court's very brief finding on obstruction of justice followed a

long discussion among the parties about Maloney's statement, during

which the court suggested that Maloney may have made it initially in

the belief that an accomplice would be sentenced more leniently than

a principal. A finding of materiality is implicit in the court's observation. The false statement was also germane to the determination of

whether Maloney had accepted responsibility for his conduct. In light

of these factors, we find that the district court's findings were adequate and that the court was not clearly erroneous in concluding that

the enhancement for obstruction of justice should apply.

Accordingly, the sentence imposed by the district court is affirmed.

We dispense with oral argument because the facts and legal

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contentions are adequately presented in the materials before the court

and argument would not aid the decisional process.

AFFIRMED

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