United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 16, 2007
Charles R. Fulbruge III
Clerk
No. 06-51252
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
DANIEL BEERY
Defendant - Appellant
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:05-CR-131-1
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Daniel Beery pleaded guilty to conspiracy to commit access
device fraud and access device fraud, and the district court
sentenced him to concurrent 90-month and 177-month terms of
imprisonment and concurrent three-year terms of supervised
release. The guidelines sentence was enhanced for obstruction of
justice because Beery fled after he was indicted and continued
his criminal conduct. The district court also ordered Beery to
pay $576,643.47 in restitution and a $200 special assessment.
*
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this opinion should not be published and is not precedent except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. 06-51252
-2-
Beery’s sole argument on appeal is that the district court
reversibly erred in denying a sentencing reduction for acceptance
of responsibility. A district court’s ruling that a defendant is
not entitled to a sentencing reduction for acceptance of
responsibility “should not be disturbed unless it is without
foundation.” United States v. Washington, 340 F.3d 222, 227 (5th
Cir. 2003) (internal quotation marks and citation omitted). A
defendant who receives an enhancement for obstruction of justice
will not be eligible to receive a reduction for acceptance of
responsibility, except in “extraordinary cases.” U.S.S.G
§ 3E1.1, comment. (n.4).
Beery did not timely withdraw from criminal activity or
voluntarily surrender. See U.S.S.G. § 3E1.1, comment. (n.1(b)
& (d)). Rather, Beery remained a fugitive for almost a year and
continued selling stolen property online during this time. Beery
has not demonstrated that his case is extraordinary or that the
district court’s denial of acceptance of responsibility was
“without foundation.” Washington, 340 F.3d at 227. The judgment
of the district court is AFFIRMED.