UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                         No. 99-4027
EVERETTE LEON WAKEFIELD, a/k/a
Tweet,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
William B. Traxler, Jr., District Judge.
(CR-97-128)

Submitted: June 15, 1999

Decided: July 20, 1999

Before HAMILTON and MICHAEL, Circuit Judges,
and PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William D. Richardson, Sr., Greenville, South Carolina, for Appel-
lant. J. Rene Josey, United States Attorney, E. Jean Howard, Assistant
United States Attorney, Greenville, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Everette Leon Wakefield pled guilty to conspiracy to possess crack
cocaine with intent to distribute, see 21 U.S.C. § 841(a) (1994), and
was sentenced to a term of 240 months imprisonment. He appeals his
sentence, arguing that the district court clearly erred in finding that he
obstructed justice by failing to appear for sentencing, see U.S. Sen-
tencing Guidelines Manual § 3C1.1 (1998), clearly erred in denying
him an adjustment for acceptance of responsibility, see USSG
§ 3E1.1, and erred in giving him one criminal history point for a
municipal court fine for drawing a weapon in an affray, see USSG
§ 4A1.1(c). We affirm.

After he entered his guilty plea, Wakefield cooperated with author-
ities and eventually earned a substantial assistance departure. How-
ever, before his first scheduled sentencing hearing in September 1997,
Wakefield absconded. He was arrested in New York in February 1998
and returned to South Carolina for sentencing.

At the sentencing hearing in December 1998, Wakefield explained
his disappearance by testifying that, before he fled South Carolina, he
had given his attorney $160,000 in drug profits to be turned over to
the government as part of his cooperation. He said that, two weeks
before he was to be sentenced, his attorney told him that he was going
to keep the money as his fee,1 told him that the government did not
plan to make a substantial assistance departure, and suggested that he
not appear for sentencing. Nevertheless, the district court determined
that Wakefield had obstructed justice by willfully failing to appear
and that, despite his substantial assistance to the government, his was
not such an extraordinary case that an adjustment for acceptance of
responsibility would be appropriate.
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1 The government took the attorney to court to recover the money.

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We review the district court's factual findings concerning obstruc-
tion of justice and acceptance of responsibility for clear error, see
United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989), and
find none. Willfully failing to appear for a judicial proceeding is con-
duct to which the obstruction of justice adjustment applies. See USSG
§ 3C1.1, comment. (n.4(e)). The district court found that Wakefield
willfully failed to appear as ordered for a judicial proceeding and the
facts support this determination.

While a defendant who receives an adjustment for obstruction of
justice ordinarily may not benefit from an adjustment for acceptance
of responsibility, see USSG § 3E1.1, comment. (n.4), in extraordinary
cases both may apply. See id. Wakefield argues that he consistently
demonstrated acceptance of responsibility by cooperating fully before
he fled to New York and by informing the government after his arrest
that $73,000 was in the truck that took him to New York and giving
directions to the truck's location.2 The district court noted that Wake-
field had not availed himself of alternatives to flight and only returned
to the court's jurisdiction after he was arrested, and concluded that
these factors indicated a lack of acceptance of responsibility. See
United States v. Miller, 77 F.3d 71, 74-75 (4th Cir. 1996). We agree.

Finally, Wakefield argued in the district court that the criminal his-
tory point awarded for drawing a weapon in an affray should be
deleted because the offense was similar to certain"offenses and
offenses similar to them," such as disorderly conduct and disturbing
the peace, which are not counted in computing criminal history. See
USSG § 4A1.2(c)(1). The district court decided that the contested
criminal history point was correctly awarded because the offense was
comparable to the state offense of presenting or pointing a firearm at
a person. See S.C. Code Ann. § 13-23-410 (Law Co-op. 1976 & Supp.
1998). The district court's application of the guidelines presents a
legal issue which is reviewed de novo. See United States v.
Dickerson, 77 F.3d 774, 775 (4th Cir. 1996).
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2 The $73,000 may have been drug money because the money was con-
fiscated and Wakefield cited his providing the information about the
money as part of his cooperation.

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Under § 4A1.2(c)(1), sentences for certain offenses "and offenses
similar to them, by whatever name they are known," are not counted
except in circumstances not present here.3 Among the excluded
offenses are local ordinance violations unless the local ordinance vio-
lation is also a criminal offense under state law. Wakefield argues that
this court should use the multiple-factor test applied in some circuits
to determine whether offenses are similar to those listed as excludable
under § 4A1.2 to determine whether "drawing a weapon in an affray"
is similar to "presenting or pointing a firearm." See United States v.
Gadison, 8 F.3d 186, 193 (5th Cir. 1993) (following United States v.
Hardeman, 933 F.2d 278, 281 (5th Cir. 1991)). 4 However, the ques-
tion here is a whether drawing a weapon in an affray is also a criminal
offense under state law, not merely whether it is similar to a state
offense.

In analogous cases where the district court must determine whether
a prior state conviction constitutes a crime of violence, this court has
approved a categorical approach which focuses on the fact of the con-
viction and the definition of the prior offense. See United States v.
Kirksey, 138 F.3d 120, 124 (4th Cir.), cert. denied, ___ U.S. ___, 67
U.S.L.W. 3232 (Oct. 5, 1998) (No. 97-9400); United States v. Wilson,
951 F.2d 586, 588 (4th Cir. 1991). For those cases where the defini-
tion is broad and therefore ambiguous as to whether the offense was
actually a crime of violence, the district court may look to the facts
contained in the charging document and the jury instructions, if any,
to determine whether the defendant committed a crime of violence.
See Kirksey, 138 F.3d at 124. The focus is limited to "the facts neces-
sarily decided by the prior conviction." Id. at 125.

Wakefield's municipal court conviction could have been secured
for conduct which did not involve a firearm or pointing a firearm.
However, undisputed information in the presentence report reveals
that the police incident report stated that, after an altercation with
_________________________________________________________________
3 They are counted if the sentence was at least a 1-year term of proba-
tion or a 30-day term of imprisonment, or if the prior offense was similar
to the instant offense.
4 This court rejected the Hardeman test in United States v. Harris, 128
F.3d 850, 853-55 (4th Cir. 1997), adopting instead an elements-based
test.

                    4
another man, Wakefield pulled out an automatic pistol and pointed it
at the man, and that Wakefield pled guilty to the charge. His guilty
plea thus establishes, at a minimum, that he unlawfully presented a
firearm, not some other weapon. Consequently, we find that the dis-
trict court did not err in finding that, in Wakefield's case, the munici-
pal ordinance conviction was also a criminal offense under South
Carolina law and that one criminal history point for the fine he paid
was properly awarded.

We therefore affirm the sentence imposed by the district court. We
deny Wakefield's motion for appointment of new counsel. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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