                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-1968
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * On Appeal from the United
      v.                                * States District Court for the
                                        * Western District of Missouri.
Christopher Ryan King,                  *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: December 9, 2008
                                Filed: March 17, 2009
                                 ___________

Before LOKEN, Chief Judge, BEAM, and ARNOLD, Circuit Judges.
                              ___________

BEAM, Circuit Judge.

      Christopher Ryan King appeals from the district court's1 imposition of a ninety-
six month sentence, levied after he entered a plea of guilty to wire fraud and money
laundering charges. We affirm.




      1
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
I.    BACKGROUND

        In November 2006, a grand jury returned a two-count indictment against King
alleging wire fraud and money laundering arising from King's automobile dealings in
January and February 2005. King owned and operated two used car dealerships in
Joplin, Missouri–The Auto Store, Inc. through about December 2004; and Auto
Source, which started operating at about that same time. On January 28, 2005, King
submitted the high bid for twenty-one cars at Adesa Auto Auction in Tulsa,
Oklahoma, totaling $215,170. In order to receive possession of the vehicles and their
titles, King had an associate telephone Adesa Auto purporting to be a vice president
of Bank of America. This imposter falsely represented that King had access to an
unused line of credit with the bank in the amount of $500,000.

       On February 2, 2005, King delivered twenty-one insufficient fund checks to
Adesa Auto for the vehicles. The next day, King faxed a fraudulent document to
Adesa purporting to be a letter from the vice president of Bank of America stating that
the line of credit indeed existed. Based on this fax, Adesa released the titles to the
vehicles to King on February 4, 2005. All twenty-one checks were returned to Adesa
Auto for insufficient funds on or about February 14, 2005. Meanwhile, King sold
nearly all, if not all, of the twenty-one vehicles to various dealers, individuals, and
auction houses between February and April of 2005. The proceeds from these sales
were deposited in The Auto Store or Auto Source checking accounts. King never paid
Adesa Auto for the vehicles.

       King pleaded guilty to both charges. During the preparation of the presentence
investigation report (PSR), King met with U.S. Probation Officer Melissa Potter on
January 31, 2007. The investigator with the Federal Public Defender's office was also
present at that interview. King did not complete all of the necessary paperwork at that
time, however, and was required to complete the financial documentation and return
it to Potter no later than February 21, 2007. King returned a net worth statement and

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a monthly cash flow statement but failed to adequately verify the information as
required. Specifically, he did not return an affidavit entitled "Declaration of
Defendant or Offender Net Worth and Cash Flow Statements." Potter then asked
King to return to her office again on April 3, 2007, to complete that document.
During that April 3, 2007, meeting, King made several uncounseled statements. King
alleges that the day after that meeting, on April 4, 2007, King's attorney, "consistent
with her obvious instructions throughout the process," instructed Potter not to contact
King directly and to route all future communication through her.

       Generally, when Potter compared the information King provided during his
presentence interview with information she obtained independently, a number of
inconsistencies appeared and it was apparent King failed to accurately report all
financial information. The primary facts that the probation officer determined King
materially misrepresented or failed to disclose were: (1) mislabeling as "gifts from
family," and significantly understating, the amount of money he was receiving on a
monthly basis from Western Funding,2 a financing company; (2) failing to disclose a
reserve account in the amount of $26,000 held by Western Funding from which King
was to receive money during the next twenty-nine months; (3) failing to disclose his
interest and/or involvement in King & Son Properties, LLC, a partnership formed by
King and his father that owned real property; and (4) failing to disclose a $4,500
check he forged and deposited in his business bank account in March 2007, after his
indictment for the instant charges. These inconsistencies formed the grounds for a

      2
       As described at sentencing, Western Funding is a third-party finance company
used by King in his dealership business to finance vehicles for clients with "less than
perfect" credit. King's father signed the Western Funding agreement because
previously King obtained the dealer's license in his father's name (unbeknownst to
King's father at the time), as King was a convicted felon and thus unable to obtain a
license in his own name. Western Funding requested that the person holding the
dealer license (King's father) be the same person to sign its agreement. In reality,
though, King conducted the business with, and collected any proceeds from, the
Western Funding business relationship.

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suggested obstruction of justice adjustment. The PSR also recommended an
adjustment for acceptance of responsibility given King's timely plea of guilty. The
court accepted the obstruction of justice recommendation but denied the suggested
adjustment for acceptance of responsibility.

       Following the presentation of evidence and argument, the district court accepted
the facts set out in the PSR, except as to the amount of restitution. As to the
obstruction adjustment and denial of acceptance of responsibility, the court noted that
this was King's third federal offense of this kind, and the court advised that King
"could do very well if he were to dedicate his intellect and his energies to honest
enterprise." Instead, however, the court noted that King had used his intelligence
only to further his "con-artist" and "shell game" activities, specifically referencing
King's misrepresentation on the Income and Expense Statement regarding the
proceeds from the loss reserve at Western Funding, and the deliberate and intentional
shroud he placed around his partnership with his father. The district court held that
King's deception was material in this case as restitution and fines were key in the
imposition of sentence. As such, King's failure to reveal key facts as to his income
was critical. Further, the fact that King committed criminal conduct even after his
indictment in the instant case by forging his wife's signature on the $4,500 check not
only supported the obstruction of justice adjustment but additionally justified the
denial of acceptance of responsibility.

      On appeal, King challenges the use of statements provided by King to the
probation officer during the April 3, 2007, meeting without King's attorney present.
These statements were used, in very small part, to support the ultimate sentence,
which involved a two-level adjustment for obstruction of justice, a denial of
adjustment for acceptance of responsibility and an upward variance from the
guidelines.




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II.   DISCUSSION

      A.     April 3, 2007, Statements

       Our review of the district court's use of statements made by King to Potter on
April 3, 2007, outside the presence of his attorney, is for plain error as it was not
raised below. United States v. Kirk, 528 F.3d 1102, 1109 (8th Cir. 2008). A plain
error should be corrected only if (1) there is error, (2) the error is plain, (3) the
defendant proves the error affects substantial rights, and (4) the error seriously affects
the fairness, integrity or public reputation of judicial proceedings. United States v.
Davis, 538 F.3d 914, 917 (8th Cir. 2008). There was no plain error here.

       On April 3, 2007, King told Potter that the money listed as "gifts from family"
on his monthly cash flow statement was from his father and that the amount of the gift
was $1,000 to $2,000 each month. King told Potter his father received the money
from Western Funding pursuant to an agreement entered into in his father's name on
King's behalf. Following this discussion, Potter independently investigated the
Western Funding monies.

        King argues on appeal that his uncounseled statements to Potter should not have
been considered by the district court because "the record [] shows counsel had
instructed the probation officer to go through counsel in all her dealings with Mr.
King." First, King does not have a Sixth Amendment right to counsel during a PSR
interview, as it is not a "critical stage" of the prosecution as contemplated by Kirby
v. Illinois, 406 U.S. 682, 690 (1972). "[N]o court has found the Sixth Amendment
right to counsel applies to routine presentence interviews," and King cites to no
binding authority holding otherwise. United States v. Tyler, 281 F.3d 84, 96 (8th Cir.
2002). King does, however, note that this court has "suggested" that if a defendant
shows that he requested his attorney's presence or that his attorney was excluded from
the interview, then statements made without counsel should not be used against him.

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United States v. Bald Eagle, 997 F.2d 1234, 1235 (8th Cir. 1993); see also Fed. R.
Crim. P. 32(c)(2) ("The probation officer who interviews a defendant as part of a
presentence investigation must, on request, give the defendant's attorney notice and
a reasonable opportunity to attend the interview.").

       It is significant that King voluntarily participated in the presentence
investigation. United States v. Archambault, 344 F.3d 732, 736 n.4 (8th Cir. 2003).
Further, contrary to King's allegation, nothing in the record indicates this April 3,
2007, conversation regarding the source of the monthly $1,000 occurred despite
King's request for his attorney or that his attorney was excluded from the interview.
Bald Eagle, 997 F.2d at 1235. In fact, the inferences from the record support the
antithesis–that only after the April 3, 2007, discussion did King's counsel request that
all future communication go through her. And finally, even if we assume that it was
error for the court to consider King's statement regarding the source of these funds
through Western Funding, the error was not so "plain" that the district court and
"prosecutor were derelict in countenancing it, even absent the defendant's timely
assistance in detecting it." United States v. Colon, 905 F.2d 580, 588 (2d Cir. 1990).

      B.     Obstruction of Justice Adjustment and Denial of Reduction for
             Acceptance of Responsibility

       The gist of King's remaining arguments on appeal is that there was insufficient
evidence supporting the district court's imposition of an upward adjustment for
obstruction of justice and the court's denial of a reduction for acceptance of
responsibility. The district court's interpretation of the Sentencing Guidelines is
reviewed de novo while the district court's factual findings underlying an adjustment
for obstruction of justice or a denial of a reduction for acceptance of responsibility are
reviewed for clear error and given great deference. United States v. Rivera-Ordaz,
554 F.3d 724, 726 (8th Cir. 2009); United States v. Brown, 539 F.3d 835, 839 (8th



                                           -6-
Cir.), cert. denied, 129 S. Ct. 658 (2008). We find no error here and could not state
it better than the district court. At sentencing, the district court aptly said:

      Mr. King is a superb con-artist and his glibness and his intelligence
      certainly have assisted him in that activity. He is also a superb shell
      game artist. When certain facts benefit him, he recognizes those facts.
      And when they do not, he denies their existence. In this case Mr. King
      misrepresented his income on the Income and Expense Statement. He
      well knew that he was entitled to the proceeds of the loss reserve at
      Western Funding. It was never his father's. It's not his fathers [sic] now.
      It was always Mr. King's. And yet he failed to disclose that on the
      [I]ncome and Expense Statement. Mr. King further knew that he was a
      partner in King & Son's Properties L.L.C. He was a partner on his
      income tax return in 2003. When it became disadvantageous for him to
      be a partner when he filed his bankruptcy, he stopped being a partner and
      very likely defrauded creditors in that bankruptcy proceeding by that act.
      He may not be a partner now, I'm not sure about that. But I think that he
      was a partner at the time he filled out the net worth statement and he
      failed to disclose that. Further there is this $4,500 check which was
      forged on his former wife's realty account. That was not disclosed on
      any of the subsequent financial filings made with the probation
      department. Those deceptions are important and they are material
      because this is a case in which there will be a substantial restitution
      obligation.

       It is true that merely "providing incomplete or misleading information, not
amounting to a material falsehood" to a probation officer during a presentence
investigation does not support an enhancement for obstruction of justice. U.S.S.G.
§ 3C1.1 cmt. n.5(c). However, the omissions in this case were, in fact, material
because the entire point of the investigation was to reveal what funds King had
available to pay restitution. For example, even though King did eventually reveal his
relationship with Western Funding, he only estimated his monthly income at $1,000
to $2,000 when many months it was $3,000 to $5,000. King also initially indicated
that the money was a "gift from family," and failed to reveal that there was a reserve

                                         -7-
account at Western Funding for $26,000. These facts, alone, were material and
sufficiently support the district court's adjustment. The district court's findings are not
clearly erroneous and support its legal conclusion that King's offense level should be
increased two levels for obstruction of justice.

       Flowing from our determination regarding the adjustment for obstruction of
justice is our support of the district court's denial of any reduction for acceptance of
responsibility. Logically speaking, conduct resulting in an enhancement for
obstruction of justice ordinarily indicates that the defendant has not accepted
responsibility of his criminal conduct, although there may be extraordinary cases in
which adjustments under both sections might apply. U.S.S.G. § 3E1.1 cmt. n.4.
There is nothing extraordinary about King's acceptance of responsibility here and we
cannot say that the district court's decision was clearly erroneous. Indeed, King's
argument at sentencing was that pleading guilty, alone, supported the reduction. Here,
though, the guilty plea does not pass muster. We need go no further in our analysis
on this point than to mention the fact that King engaged in additional unlawful
conduct by his forging the $4,500 check following his indictment on the charges we
now review–this, alone, justifies the district court's denial for any credit for acceptance
of responsibility. Committing a new crime while awaiting a sentence for similar
crimes is an independent and legally sufficient basis for denying acceptance of
responsibility. See United States v. Tjaden, 473 F.3d 877, 879-80 (8th Cir. 2007).

III.   CONCLUSION

       For the reasons stated, we affirm.
                        ______________________________




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