United States of America v. Thomas Browning

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4172
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS BROWNING,
Defendant - Appellant.
No. 10-4173
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICKY NICHOLS,
Defendant - Appellant.
Appeals from the United States District Court for the Southern
District of West Virginia, at Beckley. Irene C. Berger,
District Judge. (5:09-cr-00065-1; 5:09-cr-00065-3)
Submitted: November 4, 2010 Decided: December 10, 2010
Before NIEMEYER, AGEE, and WYNN, Circuit Judges.

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Affirmed by unpublished per curiam opinion.
Derrick W. Lefler, GIBSON, LEFLER & ASSOCIATES, Princeton, West
Virginia; J. Steve Hunter, STEVE HUNTER ASSOCIATES, L.C.,
Lewisburg, West Virginia, for Appellants. R. Booth Goodwin II,
United States Attorney, Thomas C. Ryan, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Thomas Browning and Ricky Nichols (“Appellants”) pled
guilty, pursuant to a plea agreement, to one count of conspiracy
to damage railroad property, in violation of 18 U.S.C. § 371
(2006). The district court sentenced each Appellant to a term
of sixty months’ imprisonment. On appeal, Appellants allege
that they should each have received a downward adjustment for
acceptance of responsibility, pursuant to U.S. Sentencing
Guidelines Manual (“USSG”) § 3E1.1 (2008). For the following
reasons, we affirm.
Whether an individual has accepted responsibility for
his crime is a factual question, which this court reviews for
clear error. United States v. Dugger, 485 F.3d 236, 239 (4th
Cir. 2007). “A finding is ‘clearly erroneous’ when although
there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction
that a mistake has been committed.” Id. (quoting United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). The
district court’s decision to grant or deny an acceptance of
responsibility reduction is accorded great deference. Id.
(citing USSG § 3E1.1, cmt. n.5).
Pursuant to USSG § 3E1.1, a defendant may be given a
two- or three-level reduction in his offense level if he clearly
demonstrates that he has accepted responsibility for the

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offense. In order to receive such a reduction, “the defendant
must prove by a preponderance of the evidence that he has
clearly recognized and affirmatively accepted personal
responsibility for his criminal conduct.” United States v. May,
359 F.3d 683, 693 (4th Cir. 2004) (internal quotation marks
omitted). Although a guilty plea reflects some level of
acceptance of responsibility, it does not automatically entitle
a defendant to the reduction. USSG § 3E1.1, cmt. n.3; May, 359
F.3d at 693. To qualify for a reduction, a defendant must
truthfully admit “the conduct comprising the offense of
conviction” and admit, or not falsely deny, any relevant conduct
for which he is accountable under USSG § 1B1.3. See USSG
§ 3E1.1, cmt. n.1(a).
The district court did not clearly err in finding
Appellants attempted to minimize their respective roles in the
offense, and consequently, in denying them a two-point reduction
for acceptance of responsibility. Moreover, the district court
made adequate findings to underpin this conclusion, and those
findings are supported by the record. We therefore affirm the
judgment of the district court. 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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