United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 99-1276

___________

United States of America, *

*

Appellee, *

*

v. *

*

Darrell L. Adams, *

*

Appellant. *

*

--------------------- * Appeal from the United States

* District Court for the

United States of America, * District of Nebraska.

*

Appellee, *

*

v. *

*

Darrell L. Adams, *

*

Appellant. *

___________

 Submitted: November 3, 1999

 Filed: December 3, 1999

___________

Before McMILLIAN, RICHARD S. ARNOLD, and HANSEN, Circuit Judges.

___________

PER CURIAM.
-2-

Darrell Adams was indicted in the District of Nebraska on one count of bank

fraud and in the Eastern District of Wisconsin on two counts of bank fraud, all in

violation of 18 U.S.C. § 1344. The indictments charged that Adams opened bank

accounts using false names, deposited checks drawn on closed accounts to create false

balances, and wrote checks and withdrew money from the accounts. Adams entered

into separate plea agreements with the United States Attorney’s Offices for the District

of Nebraska and the Eastern District of Wisconsin, and he agreed to transfer the

Wisconsin charges to Nebraska pursuant to Federal Rule of Criminal Procedure 20.

In the Wisconsin plea agreement, the government agreed to recommend an

adjustment for acceptance of responsibility under U.S. Sentencing Guidelines Manual

§ 3E1.1 (1998), “but only if [Adams] exhibit[ed] conduct consistent with the

acceptance of responsibility.” The agreement noted that the court would not be bound

by it, would make independent determinations regarding the application of the

Guidelines, and could impose any sentence authorized by law. Finally, Adams

acknowledged that the government could void the agreement at its discretion if he

engaged in any further criminal activity. Pursuant to the plea agreements, Adams

pleaded guilty to the Nebraska indictment and to the first count of the Wisconsin

indictment.

While on pretrial release, Adams submitted a change-of-address form to the post

office requesting that mail sent to him at a former address in Kansas City be forwarded

to him at a new Kansas City address; he opened a checking account with a $100

deposit at a Kansas City bank using the former address and a false social security

number (which he had used while living in California under the alias Darrell Green);

he deposited into that account four checks drawn on a Los Angeles account in the name

of Darrell Green, all of which were ultimately returned due to insufficient funds; and

he wrote checks which exceeded the balance in the Kansas City account. Because of

this conduct, neither the presentence report nor the government recommended that

Adams receive an acceptance-of-responsibility reduction. Over Adams’ objection, the
1The Honorable William G. Cambridge, United States District Judge for the

District of Nebraska.

-3-

district court1 denied such a reduction because Adams had engaged in illegal conduct

similar to the conduct which formed the basis of the charges against him. The court

sentenced Adams to two concurrent 71-month terms of imprisonment and five years of

supervised release.

On appeal, Adams argues that the district court erred in denying him a reduction

for acceptance of responsibility; the government breached the plea agreement by failing

to recommend the reduction; and the district court erred in failing to enforce the plea

agreement.

We conclude that the district court did not clearly err in denying Adams an

acceptance-of-responsibility reduction. See United States v. Poplawski, 46 F.3d 42,

42-43 (8th Cir.) (standard of review; denial of reduction for acceptance of

responsibility not clearly erroneous where defendant continued use of drug related to

charged offense while free on bond), cert. denied, 515 U.S. 1109 (1995). We also

conclude that the government did not breach the plea agreement because the

acceptance-of-responsibility recommendation was conditioned upon Adams exhibiting

conduct consistent with acceptance of responsibility, and the agreement reserved to the

government the discretion to void the agreement if Adams engaged in any further

criminal activity. For these reasons, we similarly conclude that the district court did not

err in not requiring the government to recommend a reduction (which would have, in

any event, been nonbinding upon the court).

Accordingly, we affirm the judgment of the district court.
-4-

A true copy.

Attest:

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