                        United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-1276
                                    ___________

United States of America,                *
                                         *
               Appellee,                 *
                                         *
       v.                                *
                                         *
Darrell L. Adams,                        *
                                         *
               Appellant.                *
                                         *
---------------------                    * Appeal from the United States
                                         * District Court for the
United States of America,                * District of Nebraska.
                                         *
               Appellee,                 *
                                         *
       v.                                *
                                         *
Darrell L. Adams,                        *
                                         *
               Appellant.                *
                                    ___________

                            Submitted: November 3, 1999
                                Filed: December 3, 1999
                                    ___________

Before McMILLIAN, RICHARD S. ARNOLD, and HANSEN, Circuit Judges.
                           ___________

PER CURIAM.
       Darrell Adams was indicted in the District of Nebraska on one count of bank
fraud and in the Eastern District of Wisconsin on two counts of bank fraud, all in
violation of 18 U.S.C. § 1344. The indictments charged that Adams opened bank
accounts using false names, deposited checks drawn on closed accounts to create false
balances, and wrote checks and withdrew money from the accounts. Adams entered
into separate plea agreements with the United States Attorney’s Offices for the District
of Nebraska and the Eastern District of Wisconsin, and he agreed to transfer the
Wisconsin charges to Nebraska pursuant to Federal Rule of Criminal Procedure 20.

       In the Wisconsin plea agreement, the government agreed to recommend an
adjustment for acceptance of responsibility under U.S. Sentencing Guidelines Manual
§ 3E1.1 (1998), “but only if [Adams] exhibit[ed] conduct consistent with the
acceptance of responsibility.” The agreement noted that the court would not be bound
by it, would make independent determinations regarding the application of the
Guidelines, and could impose any sentence authorized by law. Finally, Adams
acknowledged that the government could void the agreement at its discretion if he
engaged in any further criminal activity. Pursuant to the plea agreements, Adams
pleaded guilty to the Nebraska indictment and to the first count of the Wisconsin
indictment.

       While on pretrial release, Adams submitted a change-of-address form to the post
office requesting that mail sent to him at a former address in Kansas City be forwarded
to him at a new Kansas City address; he opened a checking account with a $100
deposit at a Kansas City bank using the former address and a false social security
number (which he had used while living in California under the alias Darrell Green);
he deposited into that account four checks drawn on a Los Angeles account in the name
of Darrell Green, all of which were ultimately returned due to insufficient funds; and
he wrote checks which exceeded the balance in the Kansas City account. Because of
this conduct, neither the presentence report nor the government recommended that
Adams receive an acceptance-of-responsibility reduction. Over Adams’ objection, the

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district court1 denied such a reduction because Adams had engaged in illegal conduct
similar to the conduct which formed the basis of the charges against him. The court
sentenced Adams to two concurrent 71-month terms of imprisonment and five years of
supervised release.

       On appeal, Adams argues that the district court erred in denying him a reduction
for acceptance of responsibility; the government breached the plea agreement by failing
to recommend the reduction; and the district court erred in failing to enforce the plea
agreement.

      We conclude that the district court did not clearly err in denying Adams an
acceptance-of-responsibility reduction. See United States v. Poplawski, 46 F.3d 42,
42-43 (8th Cir.) (standard of review; denial of reduction for acceptance of
responsibility not clearly erroneous where defendant continued use of drug related to
charged offense while free on bond), cert. denied, 515 U.S. 1109 (1995). We also
conclude that the government did not breach the plea agreement because the
acceptance-of-responsibility recommendation was conditioned upon Adams exhibiting
conduct consistent with acceptance of responsibility, and the agreement reserved to the
government the discretion to void the agreement if Adams engaged in any further
criminal activity. For these reasons, we similarly conclude that the district court did not
err in not requiring the government to recommend a reduction (which would have, in
any event, been nonbinding upon the court).

      Accordingly, we affirm the judgment of the district court.




      1
        The Honorable William G. Cambridge, United States District Judge for the
District of Nebraska.
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A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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