United States Court of Appeals
IN THE UNITED STATES COURT OF APPEALS Fifth Circuit
FOR THE FIFTH CIRCUIT F I L E D
January 11, 2007
No. 06-10287 Charles R. Fulbruge III
Summary Calendar Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
CYNTHIA WRIGHT
Defendant - Appellant
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:05-CR-135
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Cynthia Wright appeals the 24-month sentence imposed
following her guilty plea conviction for making a false statement
to a government agency. Wright argues that the district court
clearly erred in calculating the amount of loss arising from her
offense and, thus, miscalculated the sentencing guidelines range.
“For sentencing purposes, the district court may consider
any relevant evidence without regard to its admissibility under
the rules of evidence applicable at trial, provided that the
information has sufficient indicia of reliability to support its
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 06-10287
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probable accuracy.” United States v. Davis, 76 F.3d 82, 84 (5th
Cir. 1996) (internal quotation marks and citations omitted).
Wright has not carried her burden of showing that the
district court relied on materially untrue evidence in
determining the amount of loss. United States v. Angulo, 927
F.2d 202, 205 (5th Cir. 1991). The evidence showed that Wright
misused the union credit card for her personal expenses and did
not reimburse the union for the majority of those charges.
Wright failed to show that the expenses were union related.
Wright also did not rebut the Government’s evidence that she was
paid twice for her annual leave used for union business. The
district court did not clearly err in determining the amount of
loss. United States v. Saacks, 131 F.3d 540, 542 (5th Cir.
1997).
Wright also argues that the obstruction of justice
enhancement was unwarranted because she did not conceal union
records, but place them in a storage unit for safekeeping. She
contends that she provided the agents with all the records in her
possession.
The Government presented evidence that showed that contrary
to union by-laws, Wright improperly kept control of the union
records during her entire term as president and that, even prior
to placing the records in storage, Wright failed to provide
agents with union records despite their repeated requests. The
evidence also showed that following her defeat as president,
No. 06-10287
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Wright did not deliver the records to the secretary/treasurer as
required by the union by-laws, but placed them in storage where
they were inaccessible to the officer responsible for them.
Wright has not shown that the evidence that she intentionally
took steps to conceal the records from the Department of Labor
and from the union officers was materially untrue. See
U.S.S.G. § 3C1.1(A); § 3C1.1, comment. (n.4(d)); Angulo, 927 F.2d
at 205. The district court did not clearly err in making an
enhancement based on the obstruction of justice.
Wright argues that the district court erred in denying her a
reduction of her offense level for acceptance of responsibility.
She contends that she made valid objections to the loss
calculation and that her truthful testimony about her right to
use the credit card was corroborated by other union members.
Any sentence enhancement under the obstruction-of-justice
provision of § 3C1.1 ordinarily indicates that the defendant has
not accepted responsibility for his conduct. § 3E1.1, comment.
(n.4). Although it is possible to receive both an obstruction-
of-justice enhancement and an acceptance-of-responsibility
reduction, such a situation would occur only in an
“extraordinary” case. Id.
Wright has not shown that this is an extraordinary case that
warrants giving the acceptance of responsibility reduction
despite the obstruction of justice enhancement. Wright continues
to deny any wrongdoing by arguing that she did not commit a crime
No. 06-10287
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in spending large amounts of union money on personal expenses.
Wright asserted at the hearing that she did not intentionally
steal money and that the problem was merely poor recordkeeping.
Wright also continues to deny that she avoided producing the
records requested by the Department of Labor. Wright has not
truthfully admitted the conduct constituting the offense of
conviction or her attempts to conceal the offense. United States
v. Medina-Anicacio, 325 F.3d 638, 648 (5th Cir. 2003). The
district court did not clearly err in denying a reduction for the
acceptance of responsibility.
AFFIRMED.