The Honorable Henry Woods, United States District Judge for the Eastern

1

District of Arkansas. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-3849

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United States of America, *

Appellee, *

v. * District Court for the

Matthew Gregg Carman, *

Appellant. *

*

* Appeal from the United States

* Eastern District of Arkansas.

* [UNPUBLISHED]

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 Submitted: May 28, 1997

 Filed: June 2, 1997

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Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.

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PER CURIAM.

Matthew Gregg Carman appeals the 24-month sentence imposed by the District Court after he pleaded 1

guilty to violating 18 U.S.C. § 4 (1994) (misprision of felony) by knowingly concealing a violation of 18 U.S.C.

§ 1957 (1994) (prohibiting monetary transactions that exceed $10,000 and involve proceeds of “specified

unlawful activity” if defendant knows that funds are criminally derived). We affirm.
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Carman was president of M.A.T.T. Enterprises; M.A.T.T.’s vice-president and secretary-treasurer was

Alica Ives. Ives, who was also chief financial officer for Fleming Electric, Inc., embezzled $471,100 from

Fleming by forging checks made payable to M.A.T.T. On August 12, 1995, after Fleming officials discovered

the embezzlement and confronted her, Ives closed M.A.T.T.’s bank account, receiving a $108,000 cashier’s check

which she turned over to Fleming. That night, Carman and Ives met with an attorney to sever their business

relationship. Ives received M.A.T.T. (the corporation), and Carman received M.A.T.T.’s property. On August

14, 1995, Carman wrote a $100,000 check on M.A.T.T.’s closed bank account and deposited the check in an

account he had opened that day. By the time the bank discovered the mistake, it had suffered a $36,500 loss.

Ives was later convicted of mail fraud.

Carman argues for the first time on appeal that the District Court erred in calculating his sentence by

imposing a two-level increase applicable if the defendant knew that the funds were "not merely criminally derived,

but were in fact the proceeds of a specified unlawful activity." U.S. Sentencing Guidelines Manual

§ 2S1.2(b)(1)(B) commentary n.1 (1995). Carman admits that the funds were derived from the specified

unlawful activity of mail fraud, see U.S. Sentencing Guidelines Manual § 2S1.2 commentary n.1 (1995) (stating

that “specified unlawful activity” is defined to include racketeering offenses, drug offenses, and most other

serious federal crimes), but contends that the government did not prove that he knew the funds were proceeds of

mail fraud. We conclude that plain error did not occur as Ives testified at sentencing that she told Carman how

she obtained the money during their August 12 meeting. See United States v. Fritsch, 891 F.2d 667, 668 (8th

Cir. 1989) (standard of review).

We also conclude that the District Court did not clearly err when it imposed a three-level increase based

on the value of the funds. See U.S. Sentencing Guidelines Manual § 2S1.2(b)(2) (1995). Ives deposited

$471,100 of Fleming’s money into M.A.T.T.’s bank account and, after learning that the money was illegally

obtained, Carman kept all of M.A.T.T.’s assets, which had been purchased with this money. See
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id. (referencing § 2S1.1(b)(2) which provides for three-level enhancement if value of funds exceeds $350,000);

United States v. Leahy, 82 F.3d 624, 637 (5th Cir. 1996) (standard of review).

Furthermore, we conclude that the District Court did not err when it imposed a two-level increase for

obstructing justice as there was evidence presented at sentencing from which the District Court could conclude

that Carman threatened a witness during the official investigation. See U.S. Sentencing Guidelines Manual

§ 3C1.1 commentary nn.3(a), 6 (1995) (stating that threatening witness is conduct warranting obstruction

enhancement); United States v. Sykes, 4 F.3d 697, 699 (8th Cir. 1993) (per curiam) (standard of review). We

further conclude that the District Court did not abuse its discretion in basing this decision on the threatened

individual’s hearsay statements. See United States v. Cassidy, 6 F.3d 554, 557 (8th Cir. 1993) (noting that court

may consider relevant hearsay testimony at sentencing provided testimony has sufficient indicia of reliability to

support its probable accuracy; standard of review).

Finally, we conclude that the District Court did not clearly err by denying Carman an acceptance-ofresponsibility reduction. See United States v. Nguyen, 52 F.3d 192, 194 (8th Cir. 1995) (standard of review);

see also U.S. Sentencing Guidelines Manual § 3E1.1 commentary n.4 (1995) (noting that conduct resulting in

obstruction enhancement “ordinarily indicates that the defendant has not accepted responsibility for his criminal

conduct”).

Accordingly, the judgment is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.