United States of America v. Lynell Bassfield

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4125
LYNELL BASSFIELD,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-97-239)
Submitted: February 10, 2000
Decided: March 9, 2000
Before WIDENER, NIEMEYER, and LUTTIG, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Robert L. Fax, FLAX & STOUT, Richmond, Virginia, for Appellant.
Helen Fahey, United States Attorney, Sara E. Flannery, Special Assis-
tant United States Attorney, Richmond, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Following a bench trial, Lynell Bassfield was convicted of two
counts of mail fraud, in violation of 18 U.S.C.§§ 2, 1341 (1994); ten
counts of bank fraud, in violation of 18 U.S.C.§ 1344 (1994); one
count of credit card fraud, in violation of 18 U.S.C.A. § 1029(a)(2)
(West Supp. 1999); and three counts of social security fraud, in viola-
tion of 42 U.S.C. § 408(a)(7)(B) (1994). He was sentenced to a term
of twenty-four months' imprisonment on each count, with all sen-
tences to run concurrently. Bassfield appeals, alleging there was
insufficient evidence to convict him of the bank fraud and social
security fraud and that the district court erred by denying him a down-
ward departure for acceptance of responsibility. We affirm.
Bassfield alleges the evidence was insufficient to show that he used
a fraudulently obtained credit card to make cash withdraws at the Cit-
izen Bank and Trust automated teller machine in Blackstone, Vir-
ginia. This Court reviews sufficiency of the evidence deferentially,
sustaining the verdict if taking the view most favorable to the govern-
ment, there is substantial evidence to support it. See Glasser v. United
States, 315 U.S. 60, 80 (1942). In bench trials,"the judge weighs the
evidence, determines the credibility of the witnesses, and finds the
facts[,]" and "may select among conflicting inferences to be drawn
from the testimony." United States v. Bales , 813 F.2d 1289, 1293 (4th
Cir. 1987) (citations omitted).
In this case, the district court was in the unique position of examin-
ing photographs introduced into evidence that were made from sur-
veillance video tapes of the bank's ATM. Further, a police officer
testified that on June 3, 1996, he observed Bassfield drive up to the
ATM wearing a ski mask, insert a fraudulently obtained credit card
into the machine, and run from the officer when he tried to make an
arrest. All ten ATM transactions charged were for the same amount
and all were at the same ATM. It is also relevant that Bassfield was
found guilty of fraudulently obtaining the credit card used at the ATM
through a mail-in application, which underpins the credit card fraud
and mail fraud convictions that Bassfield does not contest on appeal.
We find therefore, that the Government produced sufficient evidence
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to support the finding of guilt on the nine other charges of bank fraud
occurring at the same ATM machine and involving the same fraudu-
lently obtained credit card. See United States v. Jackson, 863 F.2d
1168, 1173 (4th Cir. 1989) (finding circumstantial evidence should be
treated no differently than direct evidence and may be sufficient to
support a guilty verdict even though it does not exclude every reason-
able hypothesis consistent with innocence).
Bassfield also contends there was insufficient evidence to prove he
represented the social security numbers of John Carson and Kim
Tucker to be his own. The social security fraud statute Bassfield was
charged with violating prohibits anyone from representing, for any
purpose, a social security account number to be the social security
account number assigned by the Commissioner to him when he
knows it is not his number. See 42 U.S.C.§ 408(a)(7)(B). Bassfield
argues that because he used Carson's name on the credit card applica-
tion along with Carson's social security number, he did not represent
that the number was his. We find this argument unpersuasive.
Bassfield's use of Carson's name with Carson's social security
number does not ameliorate his use of someone else's social security
number for a deceptive purpose. In fact, using Carson's name with his
social security number facilitated Bassfield's deception that someone
else's vital statistics were his own in order to obtain a credit card and
then use the card to obtain cash. Likewise, when Bassfield applied for
the post office box with a fake identification card containing Tucker's
name and social security number, with Bassfield's photo, he repre-
sented that Tucker's name and social security number were his own.
Accordingly, we find sufficient evidence to support Bassfield's con-
victions of bank fraud and social security fraud when the evidence is
viewed in the light most favorable to the Government.
Bassfield next argues that he should have received a reduction in
sentence for acceptance of responsibility because he stipulated to
nearly every piece of documentary evidence presented by the Govern-
ment at trial.
To receive a reduction under U.S. Sentencing Guidelines Manual
§ 3E1.1, a defendant must prove by a preponderance of the evidence
that he has clearly recognized and affirmatively accepted personal
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responsibility for his criminal conduct. See United States v. Martinez,
901 F.2d 374, 377 (4th Cir. 1990). The district court is in a unique
position to evaluate a defendant's acceptance of responsibility, and its
determination is entitled to great deference on review. See U.S.S.G.
§ 3E1.1, comment. (n.5); United States v. White, 875 F.2d 427, 430-
31 (4th Cir. 1989). The adjustment is not meant to apply to one who
puts the government to its burden of proof at trial by denying the
essential factual elements of guilt, is convicted, and only then admits
guilt and expresses remorse. See U.S.S.G.§ 3E1.1, comment. (n.2).
In rare cases, one who goes to trial may still have demonstrated
acceptance of responsibility, for example if one goes to trial to pre-
serve issues unrelated to factual guilt. See id. In such cases, however,
a determination that a defendant has accepted responsibility will be
based primarily upon pre-trial statements and conduct. See id. This
court reviews the district court's findings as to acceptance of respon-
sibility for clear error. See United States v. Gordon, 895 F.2d 932,
937 (4th Cir. 1990).
The record reflects that Bassfield proceeded to trial for the sole
purpose of contesting his factual guilt, regardless of his numerous
documentary stipulations. Further, Bassfield's pre-trial conduct (fail-
ing to appear for his first scheduled trial, going through three court
appointed attorneys, and entering a guilty plea and then withdrawing
it on the day of sentencing) does not demonstrate acceptance of
responsibility for criminal conduct. See U.S.S.G. § 3E1.1, comment.
(n.2). We therefore find no clear error in the court's denial of a reduc-
tion in sentence for acceptance of responsibility. We likewise find the
court did not err in denying Bassfield a sentence reduction under
United States v. Koon, 518 U.S. 81, 99-100 (1996). Bassfield fails to
demonstrate his case is "atypical" or that the stipulations he entered
into before his second trial take his case outside the "heartland" so as
to warrant a downward departure on a basis not considered by the
Sentencing Guidelines. See Koon, 518 U.S. at 100.
We therefore affirm Bassfield's convictions and sentence. We dis-
pense 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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