UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5182

ANDREW LITTLEJOHN,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CR-94-286-S)

Submitted: November 7, 1995

Decided: March 18, 1996

Before NIEMEYER, HAMILTON, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William B. Purpura, Baltimore, Maryland, for Appellant. Lynne A.
Battaglia, United States Attorney, Maury S. Epner, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Andrew Littlejohn appeals the sentence imposed by the district
court after a jury found him guilty of two counts of food stamp fraud
in violation of 7 U.S.C.A. § 2024(b) (West 1988 & Supp. 1995), 18
U.S.C. § 2 (1988)* Because the district court's factual findings
regarding the amount of loss and Littlejohn's role in the offense are
not clearly erroneous and because the district court's refusal to depart
is not reviewable, we affirm the judgment of the district court.

I. FACTS

From June until December 1993, Littlejohn worked at Shop and
Save Meats, which consisted of two food stalls located at the Lafay-
ette Market, an indoor space filled with numerous retail food busi-
nesses within the City of Baltimore. One of the Shop and Save stalls
sold raw and processed meats, while the other, where Littlejohn
worked, sold poultry and produce.

Shop and Save was operated by Cornell Crawford, one of Little-
john's codefendants. Shop and Save was authorized to distribute and
redeem food stamp benefits electronically. During his employment,
Littlejohn joined with eight other employees to exchange in excess of
$500,000 of food stamp benefits for cash.

Littlejohn admitted that he knew Shop and Save Meats illegally
exchanged food stamp benefits for cash. He participated in the fraud
by preparing five-dollar bags of meat, poultry, or produce. Food
stamp participants who wanted to exchange their benefits for cash
were required to purchase a five-dollar bag to give the appearance of
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*Littlejohn also was indicted on three additional counts of food stamp
fraud, one count of conspiracy to commit food stamp fraud in violation
of 18 U.S.C.A. § 371 (West 1966 & Supp. 1995), and one count of
access device fraud in violation of 18 U.S.C.A.§ 1029(a)(2) (West Supp.
1995). The jury acquitted Littlejohn on the conspiracy and additional
food stamp fraud counts, and the access device fraud count was dis-
missed on the Government's motion on the first day of trial.

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a legitimate exchange of food items for food stamps. Other employees
"herded" recipients to the grocery stalls, distributed cash from Craw-
ford to the recipients, and handled the electronic transactions that
credited benefits to Shop and Save. Littlejohn also attempted to learn
how to operate the electronic terminal where the exchanges occurred.
Moreover, Littlejohn received cash bonuses on days when large-scale
food stamp trafficking took place. Finally, a videotape showed Little-
john assembling the five-dollar bags and passing food stamp benefit
cards to Crawford, who exchanged the cards for cash.

At sentencing, the district court found that Littlejohn's base offense
level was six, and it enhanced the base offense level by ten levels to
take into account the $500,000 loss. See United States Sentencing
Comm'n, Guidelines Manual, § 2F1.1(a), (b)(1)(k) (Nov. 1993). The
district court then increased Littlejohn's base offense level by another
two levels, finding that Littlejohn was involved in more than minimal
planning. See USSG § 1B1.1, comment. (n.1(f)), § 2F1.1(b)(2). The
district court denied the Littlejohn's request for a reduction for role
in the offense, finding that Littlejohn was not less culpable that most
other participants in the fraud and declined to depart below the guide-
line range, finding no adequate reason for doing so. Based on a total
offense level of eighteen and a criminal history category of II, the
applicable guideline range was thirty to thirty-seven months imprison-
ment. See USSG § Ch. 5, Pt. A. The court sentenced Littlejohn to
thirty months imprisonment on each count to run concurrently,
ordered one year of supervised release, and imposed a $100 special
assessment. This appeal followed.

II. ANALYSIS

A. Amount of loss

Littlejohn contends that the entire $500,000 of diverted food stamp
benefits was not reasonably foreseeable to him. The district court's
calculation of the amount of loss is a factual question reviewed under
the clearly erroneous standard. United States v. Chatterji, 46 F.3d
1336, 1340 (4th Cir. 1995). Although Littlejohn claims that his
acquittal on some counts should reduce the amount of loss attributable
to him, we have held that misconduct not resulting in a conviction
may be attributed to a defendant when determining loss as long as the

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finding is supported by a preponderance of the evidence. United
States v. Morgan, 942 F.2d 243, 246 (4th Cir. 1991), cert. denied, ___
U.S. ___, 61 U.S.L.W. 3479 (U.S. Jan. 11, 1993) (No. 92-6489).
Here, Littlejohn admitted that he knew Shop and Save Meats illegally
exchanged food stamp benefits for cash, and a videotape captured Lit-
tlejohn passing food stamp benefit cards to Crawford, who then
exchanged the cards for cash. Further, Littlejohn participated in the
fraud during the entire term of his employment with Shop and Save
by preparing the five-dollar bags recipients were required to purchase
in an effort to make the illegal exchange of benefits for cash appear
legitimate. We therefore find that the district court did not clearly err
in finding that the $500,000 loss was reasonably foreseeable to Little-
john.

B. Role in offense

Next, Littlejohn claims that he should have received a reduction for
his role in the offense because every other participant in the fraud had
a greater role than he had. The district court's determination of a
defendant's role in the offense is reviewable under the clearly errone-
ous standard. United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir.
1989). The district court found that a minor role reduction was not
warranted because Littlejohn was not one of the least culpable defen-
dants. Littlejohn had an important part in the transactions to exchange
cash for food stamp benefits--he prepared the five-dollar bags for
recipients who exchanged their benefits for cash, and he shared in the
profits from the illegal activity. This finding is not clearly erroneous.

C. Refusal to depart

Finally, Littlejohn contends that the district court should have
departed downward because his criminal history category was over-
stated. The district court's refusal to depart below the guideline range
is not reviewable on appeal, unless the court mistakenly believes it
lacks authority to depart. United States v. Dorsey, 61 F.3d 260, 263
(4th Cir. 1995) (citing United States v. Bayerle , 898 F.2d 28, 30-31
(4th Cir.), cert. denied, 498 U.S. 819 (1990)). We find that the district
court was aware of its authority to depart and exercised its discretion
in deciding that the circumstances did not warrant a departure. There-
fore, this claim is not reviewable.

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III. CONCLUSION

We affirm Littlejohn's sentence. We dispense 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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