UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4828

NANCY MUSIC,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Charleston.

Solomon Blatt, Jr., Senior District Judge.

(CR-96-661-9-8)

Submitted: May 26, 1998

Decided: September 1, 1998

Before NIEMEYER, WILLIAMS, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

L. J. Rosintoski, Charleston, South Carolina, for Appellant. J. Rene

Josey, United States Attorney, Sean Kittrell, Assistant United States

Attorney, Charleston, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Nancy Music appeals her sentence imposed after a plea of guilty

to conspiracy to traffic in and use unauthorized access devices in

order to obtain money, goods, and services in excess of $1000, in violation of 18 U.S.C. § 1209(a)(2) (1994); using or possessing electronic benefit transfer cards (EBT cards) valued in excess of $5000

in violation of 7 U.S.C. Ch. 51 (1994) (the Food Stamp Program); and

money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(I),

(a)(1)(B)(I) (1994). Finding no error, we affirm.

Music worked as a check-out clerk at Dobbs Market in Burton,

South Carolina, which participated in the Food Stamp Program (FSP).

In November 1993, the United States Department of Agriculture

(USDA) in conjunction with the United States Secret Service (USSS)

began an investigation into Dobbs Market after receiving information

that it was engaged in food stamp fraud. Several undercover sales

were conducted over the course of several months beginning in June

1993, wherein a confidential informant presented food stamp coupons

to a sales clerk at Dobbs Market, and received $.70 on the dollar in

cash in return. No food was purchased during these transactions. An

agent from the USSS discussed the investigation with an Assistant

United States Attorney in March 1994, and the USDA prepared a

written report on the results of the investigation which was sent to the

United States Attorney's office in Columbia, South Carolina in June

1994.

In August 1995, USSS agents interviewed Eva Gadsen, another

clerk at Dobbs Market, who agreed to cooperate with the investigation. Gadsen related that over the past ten years Solon Dobbs, the

owner of Dobbs Market, had directed her to purchase food stamp coupons for $.70 on the dollar. On two occasions in the next few months,

Gadsen worked undercover and conducted several fraudulent EBT

transactions. The Government did not arrange any more undercover

sales during this time. However, it obtained statements from witnesses identifying several clerks, including Music, as participants in

the fraudulent EBT scheme.

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On December 12, 1995, search warrants were served on Dobbs

Market, resulting in the seizure of ledgers on which sales clerks

recorded the fraudulent EBT transactions. These ledgers showed that

from January 1994 through November 1995, Dobbs Market redeemed

approximately $290,000 in food stamps and EBT transactions. Of

that, $145,163.33 was traceable to fraudulent food stamp and EBT

transactions.

The presentence investigation report (PSR) recommended that

Music's base offense level be set at six under U.S. Sentencing Guidelines Manual § 2F1.1 (1995). The PSR also recommended that, based

on the total loss of $145,163.33, Music's base offense level be

increased by seven levels under USSG § 2F1.1(b)(1).

During the sentencing hearing in September 1997, Music objected

to the PSR's calculation of the loss for purposes of determining the

seven level increase under USSG § 2F1.1(b)(1). Music argued that

she should not be held responsible for the full $145,163.33 attributable to fraudulent food stamp and EBT transactions over the entire

course of the investigation through November 1995. Rather, she

argued that she should only be held responsible for the amount of the

loss from the period of June 1993, when the first undercover sale was

made, to December 1994, when she contends that the Government

had sufficient information to prosecute the case. Music contended that

because the Government let the criminal activity continue until

December 1995, the amount of the loss was higher than it would have

been had the Government decided to prosecute earlier, thus increasing

her offense level under USSG § 2F1.1(b)(1).

The district court denied the motion, noting that the Government

did not encourage the criminal conduct and simply let it continue, and

Music could not complain that the Government did not stop her from

engaging in criminal conduct. The court set Music's total offense

level at thirteen in accordance with the PSR, and sentenced her to

twelve months' imprisonment.

On appeal, Music contends that her base offense level was

increased because the Government failed to prosecute the case in

December 1994 when it had sufficient information to do so. Music

contends that the Government's delay in prosecuting resulted in an

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increased base offense level under § 2F1.1(b)(1) and thus an

increased sentence in violation of her due process rights under the

Fifth Amendment.

Music's contention is essentially a "sentencing manipulation" argument. See United States v. Jones, 18 F.3d 1145, 1154 (4th Cir. 1994).

In Jones, this Court held that even were sentencing manipulation a

recognized theory in this court, it was not outrageous government

conduct warranting a departure from the guidelines for the Government to continue to buy narcotics from willing sellers even after the

level of drugs relevant for sentencing purposes was sold. See Jones,

18 F.3d at 1155; see also United States v. Shepard, 4 F.3d 647, 649

(8th Cir. 1993); United States v. Connell, 960 F.2d 191, 194-96 (1st

Cir. 1992). The Government's conduct in this case, simply letting

fraudulent transactions continue, does not amount to outrageous conduct resulting in a due process violation. See Jones, 18 F.3d at 1155;

Connell, 960 F.2d at 194.*

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*Music cites United States v. Lovasco, 431 U.S. 783 (1977), and

United States v. Marion, 404 U.S. 307 (1971), in support of her argument

that the Government's delay resulted in a due process violation because

it worked to increase her base offense level. These cases hold that in

order to establish a due process violation resulting from an investigative

preindictment delay, a defendant must show that he was actually prejudiced by the delay, and that the government intentionally delayed the

indictment for the purpose of gaining a tactical advantage. See Marion,

404 U.S. at 324; Jones v. Angelone, 94 F.3d 900, 905-07 (4th Cir. 1996).

These cases do not deal with the effect preindictment delay has on a

defendant's sentence. Rather, these cases are concerned with the effect

that undue delay may have on a defendant's actual defense at trial, such

as the ability to locate witnesses; the cases are inapplicable here. See

Lovasco, 431 U.S. at 785, 796; Marion, 404 U.S. at 324; Jones v.

Angelone, 94 F.3d at 906-10; United States v. Automated Medical Labs.,

770 F.2d 399, 404 (4th Cir. 1985).

Even were the test set out in these cases applicable, because Music

fails to show that the Government intentionally delayed prosecuting the

case to gain an unfair advantage or for some other bad faith motive,

Music fails to show a due process violation. See Jones v. Angelone, 94

F.3d at 905.

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We affirm Music's sentence. 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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