UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4785

ALFRED C. WRIGHT, a/k/a Zulu,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Charleston.

David C. Norton, District Judge;

Solomon Blatt, Jr., Senior District Judge.

(CR-95-883)

Submitted: November 30, 1998

Decided: January 12, 1999

Before LUTTIG and KING, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Dale L. DuTremble, Charleston, South Carolina, for Appellant. J.

Rene Josey, United States Attorney, Stanley D. Ragsdale, Assistant

United States Attorney, Columbia, South Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Upon his guilty plea, Alfred C. Wright was convicted of one count

of money structuring in violation of 31 U.S.C. § 5324(a)(3), (c)(2)

(1994). He appeals his conviction and sentence. Wright's attorney has

filed a brief certifying the following three issues as nonmeritorious

pursuant to Anders v. California, 386 U.S. 738 (1967): (1) whether

conduct not part of the offense of conviction was improperly used as

relevant conduct for purposes of sentencing; (2) whether Wright's

offense level was improperly enhanced based upon his role in the

offense; and (3) whether Wright was entitled to a downward departure. Wright's attorney also contends that the court's denial of a

reduction in offense level for acceptance of responsibility was in conflict with the Sentencing Guidelines. Wright was informed of his right

to file a pro se supplemental brief and has not done so. Finding no

reversible error, we affirm.

In a superseding indictment, Wright was charged with forty-six

gambling and money laundering offenses. According to the Government, Wright was the leader of an extensive illegal gambling operation in South Carolina and New York. On the date scheduled for trial,

Wright waived indictment and pled guilty to a superseding information charging one count of money structuring, a count not charged in

the superseding indictment. The specific transaction forming the basis

for the count was a $5000 deposit into one of Wright's bank accounts.

As part of the plea agreement, Wright and the Government agreed

that his base offense level under the Sentencing Guidelines would be

13. The base offense level was arrived at by totaling the amount of

funds detailed in Wright's superseding indictment charging him with

money laundering.

As relevant conduct, the presentence investigation report described

a series of structured bank deposits totaling over $180,000 and deter-

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mined that a base offense level of 13 was proper. At sentencing,

despite the plea agreement, Wright objected to the use of other transactions as relevant conduct to arrive at his base offense level, contending that he only pled guilty to one transaction. The court rejected

the argument and Wright moved to withdraw his guilty plea. Sentencing was rescheduled for consideration of Wright's motion. At the rescheduled sentencing hearing, Wright withdrew his motion to

withdraw the guilty plea. The court sentenced him to thirty months'

imprisonment.

In reviewing challenges to sentencing, we accept findings of fact

unless clearly erroneous. Questions regarding the legal interpretation

of the guidelines are reviewed de novo. See United States v. Romer,

148 F.3d 359, 371 (4th Cir. 1998).

We find there was no error in computing Wright's base offense

level. Wright can be held accountable for committing similar acts of

money structuring. See U.S. Sentencing Guidelines Manual

§ 1B1.3(a)(1), (2) (1995). He "need not be convicted of the charges

constituting relevant conduct for him still to be held accountable for

them." United States v. Jones, 31 F.3d 1304, 1316 (4th Cir. 1994)

(defendant held accountable for similar acts of embezzling registered

mail).

The court imposed a four-level sentencing enhancement because it

found Wright was a leader or organizer of criminal activity that

involved five or more persons. See USSG§ 3B1.1(a). Wright

objected on the basis that the court should only look at the offense of

conviction and accordingly, there was no evidence that Wright's illegal money structuring involved five persons. The court properly

found that an adjustment for role in the offense is not limited to conduct embodied in the offense of conviction. Rather, it may be based

upon the entirety of the defendant's relevant conduct. See United

States v. Fells, 920 F.2d 1179, 1184 (4th Cir. 1990). Thus, Wright's

objection was without merit and the court properly considered all of

Wright's criminal conduct, including his leadership of an extensive

gambling operation, before imposing the four-level enhancement. We

find that the court did not commit clear error when it found that

Wright's criminal enterprise involved five or more persons.

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Wright moved for a downward departure from the Sentencing

Guidelines range based upon successive state and federal prosecutions. See USSG § 5K2.0. The court denied Wright's motion, finding

that Wright's situation was not sufficient for a downward departure.

We will not review this decision because appellate review of a district

court's discretionary denial of a motion for downward departure is

unavailable. See United States v. Davis, 98 F.3d 141, 145 (4th Cir.

1996), cert. denied, ___ U.S. #6D6D 6D#, 65 U.S.L.W. 3630 (U.S. Mar. 17,

1997) (No. 96-7755).

The court denied Wright's motion for a two-level reduction in

offense level for acceptance of responsibility. See USSG § 3E1.1(a).

The court stated three reasons for denying the motion: (1) the lateness

of Wright's decision to plead guilty; (2) Wright's failure to provide

complete financial information to the probation office and the clerk

of court; and (3) Wright's attempt to withdraw his guilty plea. The

court found that Wright "in no sense of the word . . . clearly accepted

responsibility," but rather, only "grudgingly accepted" his responsibility.

Wright contends that the timeliness of his guilty plea should not be

a factor in determining a two-level reduction for acceptance of

responsibility. He asserts that it is more properly used as a factor in

determining whether the defendant is entitled to an additional onelevel reduction under USSG § 3E1.1(b)(2). Furthermore, Wright contends that his accountant was at fault for the delay in delivering financial information to the probation office and the court. Finally, Wright

contends that his motion to withdraw his guilty plea is not a relevant

factor in determining acceptance of responsibility because he was

challenging a sentencing enhancement.

Wright has the burden of establishing by a preponderance of the

evidence his entitlement to the two-level reduction for acceptance of

responsibility. See United States v. Harris, 882 F.2d 902, 907 (4th

Cir. 1989). A guilty plea does not automatically entitle the defendant

to a reduction. See id. at 905-06; see also United States v. Nale, 101

F.3d 1000, 1005 (4th Cir. 1996). A guilty plea is, of course, evidence

of acceptance of responsibility, "[h]owever, this evidence may be outweighed by conduct of the defendant that is inconsistent with such

acceptance of responsibility. A defendant who enters a guilty plea is

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not entitled to an adjustment under this section as a matter of right."

USSG § 3E1.1, comment. (n.3).

Contrary to Wright's assertion, the timeliness of a guilty plea is a

relevant consideration under § 3E1.1(a). See USSG § 3E1.1, comment. (n.1(h)). In this instance, Wright pled guilty on the day trial was

to commence and after a jury was selected. The Government was prepared to present testimony, having gathered ten witnesses, some from

out-of-town, for the first day of trial. Wright's sister and son were

prepared to testify against him. "A last minute guilty plea is not usually evidence of a heart full of remorse." United States v. Ewing, 129

F.3d 430, 436 (7th Cir. 1997) (two-level reduction was properly

denied when defendant pled guilty one business day before trial was

to begin). The last-minute guilty plea more likely demonstrates a calculated move to escape greater punishment. See United States v.

Akindele, 84 F.3d 948, 957 (7th Cir. 1996). Wright faced a possible

twenty-year sentence if convicted of the crimes charged in the indictment.

Wright's failure to provide complete financial information to the

probation office and clerk of court is also a proper basis in which to

deny a reduction for acceptance of responsibility. We find that

Wright's refusal to disclose certain financial information is inconsistent with his acceptance of responsibility because it demonstrates a

continued effort on his part to hide certain information. See United

States v. Brigman, 953 F.2d 906, 909 (5th Cir. 1992) (no two-level

reduction for acceptance of responsibility because, in part, defendant

refused to disclose financial information to probation officer); see

also United States v. Corral-Ibarra, 25 F.3d 430, 440 (7th Cir. 1994)

(refusal to discuss circumstances of offense with probation office constitutes failure to accept responsibility); United States v. Cianscewski,

894 F.2d 74, 83 (3d Cir. 1990) (same).

Wright's attempt to withdraw his guilty plea is also a proper basis

for finding that he had not accepted responsibility. See United States

v. McCarty, 99 F.3d 383, 387 (11th Cir. 1996). He attempted to withdraw his plea at sentencing despite the presentence investigation

report recommending the same base offense level as stipulated in the

plea agreement. He contended that he was not aware of the factors

that determined the base offense level. At the plea hearing, however,

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Wright stated that he understood the terms of the agreement and how

the Sentencing Guidelines would be applied in his case. Based on the

foregoing, we find that the court did not err in denying Wright a twolevel reduction for acceptance of responsibility.

Pursuant to the requirements of Anders, this court has reviewed the

record for potential error and has found none. Therefore, we affirm

Wright's conviction and sentence. This court requires that counsel

inform his client, in writing, of his right to petition the Supreme Court

of the United States for further review. If the client requests that a

petition be filed, but counsel believes that such a petition would be

frivolous, then counsel may move this court for leave to withdraw

from representation. Counsel's motion must state that a copy thereof

was served on the client.

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

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