Filed: January 31, 2006
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4626
(CR-04-158)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICKIE CORNELIUS LEWIS,
Defendant - Appellant.
O R D E R
The court amends its opinion filed January 13, 2006, as
follows:
On page 6, line 5 -- the final word “fraud” is corrected to
read “perjury.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4626
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICKIE CORNELIUS LEWIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Walter D. Kelley, Jr.,
District Judge. (CR-04-158)
Submitted: December 27, 2005 Decided: January 13, 2006
Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Timothy G. Clancy, MOSCHEL & CLANCY, P.L.L.C., Hampton, Virginia,
for Appellant. Paul J. McNulty, United States Attorney, Michael J.
Elston, Assistant United States Attorney, Robert J. Krask,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Rickie Cornelius Lewis pleaded guilty to contempt of
court and making a false declaration in a bankruptcy case. The
district court concluded that Lewis’s false declaration in
bankruptcy was more similar to perjury than to fraud, followed the
sentencing guideline for perjury, and sentenced Lewis to a 21-month
prison term. Lewis appeals, contending that the district court
should have followed the guideline for fraud, which would have
given him a shorter sentence. We affirm.
I.
A lender planned in August 2002 to foreclose on Lewis’s
house because he had failed to pay his mortgage installments. The
day before the scheduled foreclosure, Lewis filed a voluntary
bankruptcy petition in the U.S. Bankruptcy Court for the Eastern
District of Virginia. This petition was Lewis’s eighth personal
petition since 1992. Lewis’s filing triggered the automatic stay
under 11 U.S.C. § 362(a), preventing the lender from foreclosing.
The bankruptcy court dismissed Lewis’s case in two separate orders
issued in March and May 2003. These orders enjoined Lewis from
filing any new bankruptcy case “for one year from March 14, 2003.”
J.A. 11.
In December 2003 the lender again planned to foreclose on
Lewis’s home because of missed mortgage installments. The day
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before the scheduled sale, Lewis filed a voluntary petition for
bankruptcy in the Eastern District of Virginia. The forms
accompanying the petition required Lewis to list any “Prior
Bankruptcy Case Filed Within [the] Last 6 Years,” identifying such
filings by court, case number, and date. J.A. 8. In response to
this question, Lewis answered “None,” nowhere disclosing his
previous filings. He went on to sign the petition and declare
under penalty of perjury that its contents were true.
The petition immediately stayed the foreclosure. But it
also led a grand jury to indict Lewis in December 2004 on two
counts: (1) false declaration in a bankruptcy case, 18 U.S.C.
§ 152(3) & 2, and (2) contempt of court, 18 U.S.C. § 401(3) & 2.
In March 2005 Lewis pleaded guilty to the two counts before the
U.S. District Court for the Eastern District of Virginia.
Under the United States Sentencing Guidelines, the length
of the sentence on the false declaration count determined Lewis’s
total sentence. The probation officer’s presentence investigation
report initially applied USSG § 2B1.1, pertaining to fraud, to the
false declaration count and recommended a guideline sentence of 10
to 16 months. At the behest of the government, the officer amended
the report to instead apply USSG § 2J1.3, pertaining to perjury,
yielding a corrected recommendation of 21 to 27 months. The
district court agreed with the government that USSG § 2J1.3 applied
and went on to sentence Lewis to 21 months on the false declaration
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count. This appeal challenging the district court’s guideline
selection followed. We review this legal question de novo. United
States v. Lambert, 994 F.2d 1088, 1091 (4th Cir. 1993).
II.
The Guidelines and our precedent require the sentencing
court to “[d]etermine the offense guideline section . . .
applicable to the offense of conviction (i.e., the offense conduct
charged in the count of the indictment or information of which the
defendant was convicted).” USSG § 1B1.2; see Lambert, 994 F.2d at
1091. When the charged offense “appear[s] to fall under the
express terms of more than one guideline,” the sentencing court
must select the “most applicable” guideline by “compar[ing] the
guideline texts with the charged misconduct, rather than the
statute (which may outlaw a variety of conduct implicating several
guidelines) or the actual conduct (which may include factors not
elements of the indicted offense).” Lambert, 994 F.2d at 1092.
The applicable guideline is usually found in the Statutory
Index to the Guidelines. Convictions under 18 U.S.C. § 152 may be
governed by one of three guidelines listed in the Index: USSG
§ 2B1.1 (covering, inter alia, fraud and deceit), § 2B4.1
(commercial bribery), or § 2J1.3 (perjury). The parties agree that
§ 2B4.1 is not pertinent to this case. Thus, the district court’s
task was to determine whether the “offense conduct charged in . . .
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the indictment” more closely matched fraud under USSG § 2B1.1 (one
of the Chapter 2, Part B “basic economic offenses”), or perjury
under § 2J1.3 (one of the Chapter 2, Part J “offenses involving the
administration of justice”).
Lewis contends that his conduct was more similar to fraud
than to perjury. He argues that he lied to the bankruptcy court
about his prior bankruptcy history with the aim of depriving the
lender of its legal right to foreclose on Lewis’s house. Lewis
argues this was a “dishonest method or scheme” that perpetrated a
fraud on the lender. Appellant’s Br. at 10.
This argument is unpersuasive because it does not focus
on the “conduct charged in the count of the indictment . . . of
which the defendant was convicted.” USSG § 1B1.2. The indictment
did not characterize the false declaration Lewis made as part of a
scheme aimed at a specific creditor. Indeed, the indictment did
not even mention the lender by name. Rather, the indictment
concentrated on the gravity of Lewis’s misrepresentation to the
bankruptcy court. The indictment stressed, for example, the fact
that all of the documents a debtor must file with a bankruptcy
petition “are attested to under penalty of perjury.” J.A. 6
(emphasis added). The gravamen of the indictment was that Lewis’s
false declaration interfered with the bankruptcy court’s
administration of justice.
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Thus, our conclusion is the same as that reached by the
district court: a comparison of the charged misconduct as
described on the face of the indictment with the guidelines shows
that Lewis was indicted for activity that is more similar to
perjury than to fraud. Sentencing him by applying the perjury
guideline was therefore proper.
AFFIRMED
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