Remanded by Supreme Court, February 22, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 03-4514
RICHARD DEAN WALKER, a/k/a Ricky
Walker,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 03-4515
BRADLEY DALE WALKER, a/k/a
Bradley Walker,
Defendant-Appellant.
Appeals from the United States District Court
for the Southern District of West Virginia, at Beckley.
David A. Faber, Chief District Judge.
(CR-02-260)
Submitted: April 30, 2004
Decided: June 18, 2004
Before LUTTIG, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
2 UNITED STATES v. WALKER
COUNSEL
Heather D. Foster, Jaqueline Ann Hallinan, HALLINAN LAW
OFFICES, P.L.L.C., Charleston, West Virginia; Gregory J. Campbell,
CAMPBELL LAW OFFICES, Charleston, West Virginia, for Appel-
lants. Kasey Warner, United States Attorney, John L. File, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Brothers Ricky and Bradley Walker pled guilty to aiding and abet-
ting the possession of marijuana with intent to distribute, 18 U.S.C.
§ 2 (2000), 21 U.S.C. § 841(a) (2000), after they bought twenty
pounds of marijuana from an undercover officer. Ricky was sentenced
to a term of thirty months imprisonment and Bradley received a term
of twenty-seven months imprisonment. Both Ricky and Bradley argue
on appeal that the district court clearly erred in finding that they
obstructed justice by attempting to mislead the probation officer about
the source of currency seized following their arrests and in denying
them an adjustment for acceptance of responsibility. U.S. Sentencing
Guidelines Manual §§ 3C1.1, 3E1.1 (2002). Ricky also challenges the
district court’s determination that he was ineligible for a safety valve
reduction. USSG §§ 2D1.1(b)(6), 5C1.2. We affirm.
The arresting officers seized $68,294.42 in currency, including
$22,000 in cash which the brothers paid for the marijuana. $38,000
was stored in a glass jar wrapped in electrical tape that was found
behind Ricky’s house in the outbuilding where the drug sale had been
completed. Ricky was carrying $844, Bradley was carrying $930, and
an additional $6520 was found inside Ricky’s house. During the pre-
sentence investigation, Ricky and Bradley separately told the proba-
UNITED STATES v. WALKER 3
tion officer that Ricky had received $60,000 in cash from their aunt,
Ruby Conley, who died in 1995, and that the currency seized was pri-
marily money he had received from her. Ricky also submitted a hand-
written note which stated:
I, Ricky D. Walker, received money from Ella Dameron
upon request by Ruby Conley. Ella Dameron is [sic] the
power of attorney of Ruby Conley’s estate. Ruby Conley
wanted Ricky Walker to receive $60,000 cash in hand after
her death. Today’s date is August 25, 1995.
After the probation officer contacted Ella Dameron, another aunt
who was the executor of Conley’s estate, and reviewed the court doc-
uments relating to the estate, he concluded that these were false asser-
tions intended to reduce the Walkers’ relevant conduct. Dameron told
the probation officer that Ricky did not receive $60,000 from her as
stated in the handwritten note; that she was not aware that Conley
intended to give Ricky money or any reason why she should; that the
brothers had never visited Conley when she was ill; that after Con-
ley’s death they threatened to burn Dameron’s home if they did not
receive money from Conley’s estate; that they had taken two boxes
from Conley’s house which she was later told contained money; that
after the brothers’ arrests she had refused to provide them with any
documentation to back up their claim that the seized money was a gift
from Conley; and that she could not be sure whether her signature
was on the note.
However, at Ricky’s sentencing hearing, Dameron testified that
Conley had spoken to her before her death about giving money to
Ricky because he suffered from seizures;* that she had signed the
handwritten note in August 2000 (after the brothers were arrested) to
give Ricky the proof he needed that he acquired $60,000 from Con-
ley; and that she felt an obligation to testify in Ricky’s favor. She also
said that, on the day the probation officer called her to ask about the
handwritten note, Bradley and Ricky came to her house to tell her she
would be getting a call from him.
*Ricky told the probation officer he had one seizure in 1995 for which
the cause was never determined. His sister told the probation officer that
Ricky frequently had seizures.
4 UNITED STATES v. WALKER
At Bradley’s sentencing, Dameron testified that the brothers had
not threatened to burn her house if they received nothing from Conley
although other family members made such threats; and that the broth-
ers had a close relationship with Conley before her death. She testi-
fied that Bradley and Ricky, and possibly their brother Jonathan, were
present when she was asked to sign the note in August 2000. Jonathan
Walker testified at Bradley’s sentencing hearing that he had written
the note for Ricky so that Ricky could show how he got the money
"in case of taxes and stuff," and that Bradley was not present when
he and Ricky took the note to Dameron for her signature. He testified
that he did not remember in what year the note was signed.
In sentencing Ricky, the district court determined that the money
was not a gift causa mortis from Conley to Ricky, as his attorney
maintained, because the money was not delivered before Conley’s
death, see Grace v. Klein, 147 S.E.2d 288, 291 (W. Va. 1966), and
that, if the money came from Conley’s house, Ricky had stolen it. The
court further found that the handwritten note dated 1995 but signed
in 2000 was clear evidence of an effort to obstruct justice, and that
the discrepancy between Dameron’s statements to the probation offi-
cer and her testimony indicated a possible further attempt by Ricky
to obstruct justice. The court therefore found that an adjustment for
obstruction of justice was warranted. In consequence, the court deter-
mined that an acceptance of responsibility adjustment was not appro-
priate. The court further found that Ricky had not provided truthful
information to the government and thus did not qualify for the safety
valve reduction.
In Bradley’s case, the district court noted that Dameron’s testimony
had "evolved" and was inconsistent with what she had told the proba-
tion officer, and that Jonathan’s testimony was not credible. The court
found credible Dameron’s testimony that Bradley and Ricky brought
her the note in August 2000, shortly after their arrests in June 2000,
and asked her to help them out by signing it. The court also credited
Dameron’s testimony that Bradley was with Ricky when he came to
her house to tell her she would be receiving a call from the probation
officer, and that all this evidence proved Bradley’s involvement in the
obstruction of justice. The court found that Bradley did not qualify for
acceptance of responsibility and was not eligible for the safety valve
reduction.
UNITED STATES v. WALKER 5
On appeal, Ricky and Bradley both contest the district court’s rul-
ings on obstruction of justice and acceptance of responsibility. Ricky
also contends that the court erred in finding that he was ineligible for
the safety valve reduction. All these claims are a challenge to the dis-
trict court’s determination of the credibility of Dameron’s testimony
at their sentencing hearings. The Walkers argue on appeal that the dis-
trict court clearly erred when it rejected as not credible the portions
of Ella Dameron’s testimony that supported their assertions to the
probation officer. Appellants concede that credibility determinations
are generally within the province of the fact finder and are thus not
reviewable. United States v. Feurtado, 191 F.3d 420, 424 n.2 (4th Cir.
1999) (factfinder’s decision as to weight of evidence and credibility
of witnesses entitled to great deference); United States v. Saunders,
886 F.2d 56, 60 (4th Cir. 1989) (same). They argue that their case
comes within the exception that permits appellate review if the judg-
ment or sentence is unsupported by the record. See Brady v. Thurston
Motor Lines, 726 F.2d 136, 144 (4th Cir. 1984). However, we con-
clude that the district court’s assessment of the credibility of
Dameron’s testimony was supported by the lack of court documents
indicating that Conley left money to Ricky and the inconsistencies
between Dameron’s statements to the probation officer and those por-
tions of her testimony that were favorable to Ricky’s and Bradley’s
claims at their respective sentencing hearings. We cannot find reason
to disturb the court’s decision to credit only certain portions of
Dameron’s testimony. Therefore, we necessarily conclude that the
court’s determination that the brothers had attempted to obstruct jus-
tice was not clearly erroneous.
Moreover, only in an extraordinary case may a defendant receive
both an adjustment for obstruction of justice and acceptance of
responsibility. United States v. Hudson, 272 F.3d 260, 263-64 (4th
Cir. 2001). Neither Ricky nor Bradley contend that theirs is an
extraordinary case where both adjustments could be applied. We are
satisfied that the district court did not clearly err in concluding that
neither defendant was eligible for an adjustment for acceptance of
responsibility.
Finally, we find no error in the denial of a safety valve reduction
to Ricky. If a defendant meets the five criteria set out in § 5C1.2, his
offense level may be reduced by two levels. The fifth criteria is that,
6 UNITED STATES v. WALKER
by the time of sentencing, the defendant have truthfully provided to
the government all information and evidence in his possession con-
cerning the offense. Given the district court’s determination that
Ricky had provided false information concerning the source of the
money seized on June 27, 2000, following his arrest, Ricky did not
meet all five criteria set out in § 5C1.2. Therefore, he was not eligible
for the reduction under § 2D1.1(b)(6).
We therefore affirm the sentences imposed by the district court.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED