United States v. Kevin Lealand McClure A/K/A Dave, 960 F.2d 147, 4th Cir. (1992)
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Scribd Government DocsUnited States v. Kevin Lealand McClure A/K/A Dave, 960 F.2d 147, 4th Cir. (1992)
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Scribd Government Docs960 F.
2d 147
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of
unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
Kevin Lealand MCCLURE, a/k/a Dave, Defendant-Appellant.
No. 91-5614.
United States Court of Appeals,
Fourth Circuit.
Submitted: April 6, 1992
Decided: April 16, 1992
G. Ernest Skaggs, Fayetteville, West Virginia, for Appellant. Michael W.
Carey, United States Attorney, John C. Parr, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.
Before ERVIN, Chief Judge, and MURNAGHAN and WILLIAMS,
Circuit Judges.
PER CURIAM:
OPINION
1
Kevin Lealand McClure pled guilty to conspiring to distribute crack cocaine
(21 U.S.C. 846 (1988)). He appeals the sentence imposed and we affirm.
After his guilty plea, McClure was released on bond. He failed to appear for
sentencing or to testify before a grand jury as agreed and, as a consequence, at
his sentencing after his apprehension the district court added two offense levels
to the base offense level for obstruction of justice. The court decided not to
reduce the offense level for acceptance of responsibility, finding that McClure's
conduct was inconsistent with acceptance of responsibility.
3
Counsel for McClure has filed an appellate brief contesting the addition of two
offense levels for obstruction of justice, but represents in his motion to
withdraw that there are, in his opinion, no arguable issues of merit. We have
therefore treated this appeal as filed under Anders v. California, 386 U.S. 738
(1967). McClure has been notified of his right to file a supplemental brief and
has done so; he also challenges the obstruction of justice adjustment and claims
that the district court erred in failing to award him a reduction for acceptance of
responsibility, given that he pled guilty and apologized for his conduct at the
sentencing hearing.
Flight before trial or sentencing is conduct to which the obstruction of justice
guideline applies. See United States Sentencing Commission, Guidelines
Manual, 3C1.1, comment. (n.3(e)) (Nov. 1990). We find no error in the
district court's decision to make the adjustment here. The district court's factual
finding on whether a defendant has accepted responsibility for his criminal
conduct is reviewed for clear error. United States v. White, 875 F.2d 427, 431
(4th Cir. 1989). A guilty plea does not automatically entitle a defendant to the
reduction. Id. We do not find the district court's decision not to give the
reduction in this case to be clearly erroneous.
In accordance with the requirements of Anders, we have examined the entire
record in this case and find no other non-frivolous issues for appeal. We
accordingly affirm the judgment of the district court.
Pursuant to the plan adopted by the Fourth Circuit Judicial Council in
implementation of the Criminal Justice Act of 1964 (18 U.S.C. 3006A), this
Court requires that counsel inform his client, in writing, of his right to petition
the Supreme Court for further review. Counsel's motion to withdraw is
therefore denied. If requested by his client to do so, counsel should prepare a
timely petition for a writ of certiorari.
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
