                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             NOV 21, 2008
                              No. 08-13761                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                      D. C. Docket No. 07-00428-CR-4

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

ALEX T. MCKAY,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Southern District of Georgia
                      _________________________

                            (November 21, 2008)

Before DUBINA, CARNES and FAY, Circuit Judges.

PER CURIAM:

     Appellant Alex T. McKay appeals the 51-month sentence imposed after
pleading guilty to bank fraud, in violation of 18 U.S.C. § 1344. On appeal, McKay

argues that the district court erred in denying him a two-level reduction for

acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a), because he accepted

responsibility when he pled guilty to count seventeen of the indictment, his plea

was timely and consequently spared the government the expense of trial, he

cooperated with the government in the preparation of the presentence investigation

report, and he truthfully admitted to the conduct for the offense of conviction and

to the relevant conduct under U.S.S.G. § 1B1.3. Additionally, McKay contends

that he did not falsely deny relevant conduct, in particular writing a $100 check to

Rhonda Mills, but disputed that he ever received anything of value for it.

      “We review a district court’s factual findings concerning a reduction for

acceptance of responsibility for clear error.” United States v. Williams, 408 F.3d

745, 756 (11th Cir. 2005). Under clear error review, McKay bears the burden of

showing entitlement to a reduction, and the sentencing judge is given great

deference on review. Id. at 756-57; United States v. Castillo-Valencia, 917 F.2d

494, 500 (11th Cir. 1990) (“Because demonstration of whether or not the defendant

has personally accepted responsibility for his criminal conduct requires a

consideration of both objective and subjective considerations of the defendant’s

demeanor and sincerity, the district court’s determination will not be overturned



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unless it is without foundation.”). The guidelines provide for a two-level reduction

when the defendant clearly demonstrates acceptance of responsibility for his

offense. U.S.S.G. § 3E1.1(a). Although a guilty plea is significant evidence of

acceptance of responsibility, this evidence may be outweighed by conduct of the

defendant that is inconsistent with such acceptance of responsibility. United States

v. Lewis, 115 F.3d 1531, 1537 (11th Cir. 1997) (quoting U.S.S.G. § 3E1.1,

comment. (n.1 and 3) (stating that a guilty plea is evidence of acceptance of guilt

only when that plea is combined with truthfully admitting the conduct comprising

the offense of the conviction and truthfully admitting or not falsely denying any

additional relevant conduct for which the defendant was accountable under

U.S.S.G. § 1B1.3)).

      Here, the record demonstrates that McKay entered into a plea agreement in

which he admitted that he wrote a fraudulent check in the amount of $8,950.

Though admitting the conduct that constituted the offense of his conviction,

McKay himself later wrote a letter to the government denying that Rhonda Mills

gave him $100 in cash for a check he presented to her. McKay admitted that he

wrote a $100 check but contended that Rhonda Mills never gave him anything of

value for it. McKay’s letter, while not inconsistent with his admission of guilt

regarding his convicted conduct, denies relevant conduct under U.S.S.G. § 1B1.3.



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Specifically, McKay’s statements contradicted Rhonda Mills’s testimony that she,

in fact, cashed McKay’s check for $100. The district court implicitly found

Rhonda Mills to be credible given that the court accepted her testimony over

McKay’s assertions. As such, we will not upset the credibility determination of the

district court absent clear error, and there is no showing that the court made such

an error regarding the credibility determination of either Rhonda Mills or McKay.

See United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002)

(discussing credibility determinations in context of sentencing hearing). After

reviewing the record, we conclude that the court had sufficient foundation to find

that McKay falsely denied relevant conduct and, more importantly, that, despite his

plea, he did not accept responsibility for his crime. See Castillo-Valencia, 917

F.2d at 500. Accordingly, we affirm McKay’s sentence.

      AFFIRMED.




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