UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 97-5006

WESLEY MILLER,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Bluefield.
David A. Faber, District Judge.
(CR-97-77)

Submitted: July 7, 1998

Decided: August 3, 1998

Before WIDENER, HAMILTON, and LUTTIG, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Omar J. Aboulhosn, SANDERS, AUSTIN, SWOPE & FLANIGAN,
Princeton, West Virginia, for Appellant. Rebecca A. Betts, United
States Attorney, Hunter P. Smith, Jr., Assistant United States Attor-
ney, Charleston, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Wesley Miller appeals the 33-month sentence he received after he
pled guilty to conspiracy to commit mail fraud, 18 U.S.C. § 371
(1994). He contends that the district court erred in finding that
Miller's was not an extraordinary case in which adjustments for both
obstruction of justice, see USSG § 3C1.1,* and acceptance of respon-
sibility should be given, see USSG § 3E1.1, comment. (n.4). We
affirm.

Miller was president of the board of directors of the Big Creek Vol-
unteer Rescue Squad ("Big Creek"), an unpaid position. Big Creek
submitted invoices to the West Virginia Medicaid program through
Quality Ambulance Service ("Quality"). From January 1992 through
September 1994, apparently without Miller's knowledge, employees
and officers of Big Creek billed Medicaid for a large number of
unnecessary ambulance trips and for trips which never occurred. Dur-
ing 1994, in a separate scheme, Miller arranged with a Quality
employee and two Big Creek employees, Diana Lambert and George
Conorman, for Big Creek to receive a $5 "adminstrative fee" from
each Medicaid payment for an ambulance run. From each $5 fee paid,
Miller received $1.50. Over the course of the conspiracy, Miller
received approximately $12,100.

Lambert initially deposited all the money in her account and then
paid Miller and Conorman in cash. She reported this money as
income on her tax return. In 1995, at her request, Miller paid Lambert
$3100 to reimburse her for tax she had paid on the amount she dis-
bursed to him. In 1996, Lambert began cooperating with an investiga-
tion of Big Creek being conducted by the West Virginia Medicaid
Fraud Control Unit. She recorded four conversations with Miller in
which he told her how to answer questions concerning the "adminis-
trative fee" if she were questioned about it by investigators or a grand
jury. Miller urged Lambert to say that the money he had received was
really hers, and that he had been keeping it for her. In October 1996,
_________________________________________________________________

*U.S. Sentencing Guidelines Manual (1997).

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Miller paid Lambert $9000 in cash and gave her a receipt for this
amount as the balance of the money he received less the $3100 he had
already reimbursed her.

Once he realized that he had been exposed, Miller entered into plea
negotiations and entered a guilty plea to mail fraud. When inter-
viewed by the government following his plea, Miller admitted engag-
ing in the administrative fee scheme and admitted his obstructive
conduct. At sentencing, he did not contest a recommended adjustment
for obstruction of justice, but he argued that he should receive an
adjustment for acceptance of responsibility because he had abandoned
his attempt to obstruct the investigation once his conduct was known.
Normally, conduct resulting in an adjustment for obstruction of jus-
tice precludes an adjustment for acceptance of responsibility, but in
extraordinary cases both may apply. See USSG§ 3E1.1, comment.
(n.4).

Miller relied on United States v. Hopper, 27 F.3d 378, 383 (9th Cir.
1994), in which the Ninth Circuit held that a defendant may receive
adjustments for both obstruction of justice and acceptance of respon-
sibility when his obstructive conduct is "not inconsistent" with accep-
tance of responsibility. Under Hopper, the two adjustments are not
inconsistent "when a defendant, although initially attempting to con-
ceal the crime, eventually accepts responsibility for the crime and
abandons all attempts to obstruct justice." Id. Therefore, under
Hopper, "as long as the defendant's acceptance of responsibility is not
contradicted by an ongoing attempt to obstruct justice, the case is an
extraordinary one within the meaning of Application Note 4." Id. The
district court declined to follow Hopper, found that Miller's was not
an extraordinary case, and did not award him a reduction for accep-
tance of responsibility.

On appeal Miller urges that Hopper is consistent with this court's
precedents and that this court has applied a " Hopper-like analysis,"
citing United States v. Miller, 77 F.3d 71, 75 (4th Cir. 1996) (failure
to appear at sentencing); United States v. Murray, 65 F.3d 1161, 1166
(4th Cir. 1995) (perjury during co-defendant's trial); United States v.
Melton, 970 F.2d 1328, 1335 (4th Cir. 1992) (attempt to escape);
United States v. Hicks, 948 F.2d 877, 885 (4th Cir. 1991) (defendant
who threw cocaine from car during chase and lied to probation officer

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about his financial resources but cooperated to a high degree with
arresting officers earned both adjustments). However, our review of
the cases Miller relies on reveals that each determination was made
on a case-by-case basis, without adopting the Hopper approach or any
rule to be applied in all such cases. Consequently, we find that the
district court did not clearly err in finding that Miller's case was not
extraordinary and in refusing to award him an adjustment for accep-
tance of responsibility.

We therefore affirm the 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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