NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 16 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30056
Plaintiff - Appellee, D.C. No. 3:11-cr-00194-BLW
v.
MEMORANDUM*
GARY RAYMOND HARVEY,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief Judge, Presiding
Submitted March 10, 2015**
Before: FARRIS, WARDLAW, and PAEZ, Circuit Judges.
Gary Raymond Harvey appeals from the district court’s judgment and
challenges his guilty-plea conviction and 36-month sentence imposed for making
false claims for refund, in violation of 18 U.S.C. § 287. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Harvey contends that the district court erred by denying his motion for
judgment of acquittal. Harvey waived the right to appeal the denial of the motion
by entering an unconditional guilty plea. See United States v. Lopez-Armenta, 400
F.3d 1173, 1175 (9th Cir. 2005).
Harvey next contends that the district court erred by denying him a two-level
adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. He argues
that the court failed to consider his allocution at sentencing and instead improperly
weighed Harvey’s constitutionally protected post-plea conduct against him. The
record shows that the district court based its denial on the record as a whole and
did not clearly err. See United States v. Ramos-Medina, 706 F.3d 932, 942 (9th
Cir. 2013). Although Harvey ultimately admitted guilt, his actions were
inconsistent with acceptance of responsibility and failed to show the requisite
contrition to warrant the adjustment. See U.S.S.G. § 3E1.1 cmt. n.2; United
States v. Osinger, 753 F.3d 939, 949 (9th Cir. 2014).
Finally, Harvey claims that the court erred by applying an adjustment
pursuant to U.S.S.G. § 2B1.1(b)(9)(A). We review the district court’s application
of the Guidelines for abuse of discretion. See United States v. Treadwell, 593 F.3d
990, 1006 (9th Cir. 2010). Given the undisputed fact that Harvey represented
2 13-30056
himself as acting on behalf of a religious organization, the court did not abuse its
discretion in applying the enhancement. See U.S.S.G. § 2B1.1(b)(9)(a), cmt.
n.8(B).
AFFIRMED.
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