                             NOT FOR PUBLICATION                         FILED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

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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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