                                              Filed:   January 31, 2006

                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                             No. 05-4626
                             (CR-04-158)


UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

           versus



RICKIE CORNELIUS LEWIS,

                                                Defendant - Appellant.



                              O R D E R


     The court amends its opinion filed January 13, 2006, as

follows:

     On page 6, line 5 -- the final word “fraud” is corrected to

read “perjury.”



                                          For the Court - By Direction



                                             /s/ Patricia S. Connor
                                                     Clerk
                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4626



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


RICKIE CORNELIUS LEWIS,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Walter D. Kelley, Jr.,
District Judge. (CR-04-158)


Submitted:   December 27, 2005            Decided:   January 13, 2006


Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Timothy G. Clancy, MOSCHEL & CLANCY, P.L.L.C., Hampton, Virginia,
for Appellant. Paul J. McNulty, United States Attorney, Michael J.
Elston, Assistant United States Attorney, Robert J. Krask,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Rickie Cornelius Lewis pleaded guilty to contempt of

court and making a false declaration in a bankruptcy case.                The

district   court   concluded   that       Lewis’s   false   declaration   in

bankruptcy was more similar to perjury than to fraud, followed the

sentencing guideline for perjury, and sentenced Lewis to a 21-month

prison term.     Lewis appeals, contending that the district court

should have followed the guideline for fraud, which would have

given him a shorter sentence.    We affirm.



                                  I.

           A lender planned in August 2002 to foreclose on Lewis’s

house because he had failed to pay his mortgage installments.             The

day before the scheduled foreclosure, Lewis filed a voluntary

bankruptcy petition in the U.S. Bankruptcy Court for the Eastern

District of Virginia.    This petition was Lewis’s eighth personal

petition since 1992.    Lewis’s filing triggered the automatic stay

under 11 U.S.C. § 362(a), preventing the lender from foreclosing.

The bankruptcy court dismissed Lewis’s case in two separate orders

issued in March and May 2003.         These orders enjoined Lewis from

filing any new bankruptcy case “for one year from March 14, 2003.”

J.A. 11.

           In December 2003 the lender again planned to foreclose on

Lewis’s home because of missed mortgage installments.              The day


                                      2
before the scheduled sale, Lewis filed a voluntary petition for

bankruptcy     in    the   Eastern   District   of    Virginia.         The    forms

accompanying    the     petition     required   Lewis     to    list   any    “Prior

Bankruptcy Case Filed Within [the] Last 6 Years,” identifying such

filings by court, case number, and date.             J.A. 8.      In response to

this   question,      Lewis   answered   “None,”     nowhere     disclosing      his

previous filings.          He went on to sign the petition and declare

under penalty of perjury that its contents were true.

           The petition immediately stayed the foreclosure.                   But it

also led a grand jury to indict Lewis in December 2004 on two

counts:    (1) false declaration in a bankruptcy case, 18 U.S.C.

§ 152(3) & 2, and (2) contempt of court, 18 U.S.C. § 401(3) & 2.

In March 2005 Lewis pleaded guilty to the two counts before the

U.S. District Court for the Eastern District of Virginia.

           Under the United States Sentencing Guidelines, the length

of the sentence on the false declaration count determined Lewis’s

total sentence.       The probation officer’s presentence investigation

report initially applied USSG § 2B1.1, pertaining to fraud, to the

false declaration count and recommended a guideline sentence of 10

to 16 months.       At the behest of the government, the officer amended

the report to instead apply USSG § 2J1.3, pertaining to perjury,

yielding   a   corrected      recommendation    of   21    to    27    months.   The

district court agreed with the government that USSG § 2J1.3 applied

and went on to sentence Lewis to 21 months on the false declaration


                                         3
count.      This appeal challenging the district court’s guideline

selection followed. We review this legal question de novo. United

States v. Lambert, 994 F.2d 1088, 1091 (4th Cir. 1993).



                                      II.

              The Guidelines and our precedent require the sentencing

court    to    “[d]etermine   the    offense    guideline   section       .    .   .

applicable to the offense of conviction (i.e., the offense conduct

charged in the count of the indictment or information of which the

defendant was convicted).”         USSG § 1B1.2; see Lambert, 994 F.2d at

1091.       When the charged offense “appear[s] to fall under the

express terms of more than one guideline,” the sentencing court

must select the “most applicable” guideline by “compar[ing] the

guideline texts with the charged misconduct, rather than the

statute (which may outlaw a variety of conduct implicating several

guidelines) or the actual conduct (which may include factors not

elements of the indicted offense).”            Lambert, 994 F.2d at 1092.

        The applicable guideline is usually found in the Statutory

Index to the Guidelines.      Convictions under 18 U.S.C. § 152 may be

governed by one of three guidelines listed in the Index:                      USSG

§   2B1.1     (covering,   inter    alia,   fraud   and   deceit),    §       2B4.1

(commercial bribery), or § 2J1.3 (perjury). The parties agree that

§   2B4.1 is not pertinent to this case.         Thus, the district court’s

task was to determine whether the “offense conduct charged in . . .


                                       4
the indictment” more closely matched fraud under USSG § 2B1.1 (one

of the Chapter 2, Part B “basic economic offenses”), or perjury

under § 2J1.3 (one of the Chapter 2, Part J “offenses involving the

administration of justice”).

         Lewis contends that his conduct was more similar to fraud

than to perjury.    He argues that he lied to the bankruptcy court

about his prior bankruptcy history with the aim of depriving the

lender of its legal right to foreclose on Lewis’s house.             Lewis

argues this was a “dishonest method or scheme” that perpetrated a

fraud on the lender.     Appellant’s Br. at 10.

          This argument is unpersuasive because it does not focus

on the “conduct charged in the count of the indictment . . . of

which the defendant was convicted.”        USSG § 1B1.2.    The indictment

did not characterize the false declaration Lewis made as part of a

scheme aimed at a specific creditor.            Indeed, the indictment did

not even mention the lender by name.               Rather, the indictment

concentrated on the gravity of Lewis’s misrepresentation to the

bankruptcy court.     The indictment stressed, for example, the fact

that all of the documents a debtor must file with a bankruptcy

petition “are attested to under penalty of perjury.”                J.A. 6

(emphasis added).     The gravamen of the indictment was that Lewis’s

false   declaration     interfered       with    the   bankruptcy   court’s

administration of justice.




                                     5
           Thus, our conclusion is the same as that reached by the

district   court:   a   comparison    of   the   charged   misconduct   as

described on the face of the indictment with the guidelines shows

that Lewis was indicted for activity that is more similar to

perjury than to fraud.     Sentencing him by applying the perjury

guideline was therefore proper.

                                                                AFFIRMED




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