UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 96-4394

CARL DAVID BEAMAN,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Joseph Robert Goodwin, District Judge.
(CR-95-118)

Submitted: June 17, 1997

Decided: July 29, 1997

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Lawrence J. Lewis, FLESHER & LEWIS, Huntington, West Virginia,
for Appellant. Rebecca A. Betts, United States Attorney, Paul A. Bil-
lups, Assistant United States Attorney, Huntington, West Virginia, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Carl David Beaman was charged with four counts of mail fraud, 18
U.S.C. §§ 1341, 2 (1994), and pled guilty to Count Two. He received
a sentence of 27 months imprisonment. Beaman appeals the district
court's denial of his motion to withdraw his guilty plea just before
sentencing, and also contests his sentence on various grounds. We
affirm.

Beaman's offense began with a genuine car accident. On February
14, 1993, while Beaman was riding in a car driven by his girlfriend,
Deborah Sue Preece, an acquaintance rear-ended Preece's car at an
intersection. Beaman and Preece got out to inspect the damage;
Preece was furious. Beaman suggested that Ruth Bays, the other
driver, should hit Preece's car a second time. His intent was to
defraud the insurance company. Bays complied. Although no one was
injured, Beaman, Preece, and the other driver rode to the hospital in
an ambulance summoned by state police. Beaman filed a claim for
personal injuries and lost wages and received $2900 from the United
States Fire Insurance Company. Preece received $4,027.54 for per-
sonal injuries and property damage.

Beaman and Preece were charged with mail fraud. 1 Their first trial
ended in a mistrial. During the second trial, Beaman entered into plea
negotiations and tentatively agreed to plead guilty. Trial was recessed
for several hours during the afternoon and then overnight to allow
Beaman to consider a plea. The next morning, he entered a guilty plea
to Count Two under a verbal plea agreement. At his guilty plea hear-
ing, he admitted receiving payment for his fraudulent claim for his
own non-existent injuries. The charges against Preece were dismissed
under the terms of Beaman's agreement. The agreement was formally
accepted by the district court at the sentencing hearing, after objec-
tions to the presentence report were resolved.
_________________________________________________________________
1 Three counts involved fraudulent claims to United States Fire Insur-
ance Company. The fourth count involved the crash of a rented U-Haul
truck in 1994 for which claims were made to Republic Claims Service
Company.

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A week before he was sentenced, Beaman moved to withdraw his
guilty plea, arguing principally that his plea was not knowing and vol-
untary because the relevant conduct provisions of the federal sentenc-
ing guidelines had not been explained to him. The district court
denied the motion. On appeal, Beaman argues that the district court
abused its discretion in denying his motion because he believed he
was pleading guilty to a single fraudulent act involving $2900 and did
not realize that he would be held accountable for the money received
by Preece.

Under Fed. R. Crim. P. 32(e), a defendant has the burden of show-
ing a "fair and just reason" to justify withdrawal of his guilty plea
even when acceptance of his plea agreement has been deferred, as in
this case. See United States v. Hyde, #6D 6D6D# U.S. ___, 1997 WL 273691
(U.S. May 27, 1997) (No. 96-667). We have considered the record of
the Fed. R. Crim. P. 11 hearing and the factors set out in United States
v. Moore, 931 F.2d 245, 248 (4th Cir. 1991), and find that the district
court did not abuse its discretion in finding that Beaman failed to
show a "fair and just reason" for withdrawal of his plea. Beaman was
aware when he entered his plea that he faced a maximum penalty of
five years imprisonment. The court was not required to tell him what
the actual guideline range would be before accepting his plea. See
United States v. DeFusco, 949 F.2d 114, 118-19 (4th Cir. 1991).

With respect to Beaman's sentencing, we review the factual issues
he raises for clear error and the legal issues de novo. United States
v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). Beaman contested
the probation officer's recommendation that a 2-level adjustment be
made for obstruction of justice under USSG § 3C1.1.2 Beaman's son,
Lance Beaman, told the probation officer that his father had contacted
him the night before the guilty plea and asked him to help get another
mistrial declared. Lance Beaman was instructed to tell his cousin,
who was scheduled to testify for the defense, to bring out Beaman's
prior criminal history during his testimony. If the cousin was unsuc-
cessful, Beaman's son was to do it himself. Beaman disputed the
occurrence of the conversation, but did not testify. He also questioned
whether such information, coming from a defense witness, would
_________________________________________________________________
2 United States Sentencing Commission, Guidelines Manual (Nov.
1995).

                    3
have constituted obstruction of justice. The district court found that
Beaman willfully attempted to obstruct justice by trying to arrange for
testimony that he thought would produce a mistrial. An attempt is suf-
ficient to justify the adjustment. See USSG§ 3C1.1, comment.
(n.3(a)). The district court did not clearly err in making the factual
determination that Beaman had in fact contacted his son and
attempted to influence the testimony of a witness.

The court also found that Beaman's fraudulent claim was not
merely opportune but involved more than minimal planning and thus
warranted an additional 2-level enhancement. USSG
§ 2F1.1(b)(2)(A). We agree. As the court found, Beaman did more
than take advantage of an opportunity presented to him. He created
the opportunity by staging a more serious accident than the one which
occurred and seeking unnecessary treatment before submitting his
fraudulent claim.

Beaman resisted the probation officer's recommendation that the
amount of loss include Preece's claim for $4,027.54, arguing that he
took no part in the submission of her claims. The district court found
that Preece's claim was reasonably foreseeable to Beaman and was
part of a jointly undertaken criminal activity, and thus was properly
treated as relevant conduct in his case. USSG § 1B1.3(a)(2)(B). The
inclusion of Preece's claim increased Beaman's offense level by two
levels. On appeal, Beaman argues that he did not plead guilty to a
jointly undertaken criminal activity. However, the guideline applies to
any "criminal plan, scheme, endeavor, or enterprise undertaken by the
defendant in concert with others, whether or not charged as a conspir-
acy." Id. Beaman also maintains that the scope of his agreement was
limited to the $2900 he obtained, but under Application Note 2 to
USSG § 1B1.3 the district court may consider any implicit agreement
fairly inferred from the conduct of the defendant and the others
involved. Here, the district court did not clearly err in finding that
Preece's claim was within the scope of Beaman's agreement.

Finally, Beaman contests three criminal history points which he
received for a 1981 sentence for obstruction of justice. While await-
ing trial on bank robbery charges, Beaman attempted to influence the
testimony of a witness. He was subsequently sentenced to a five-year
term consecutive to the sentences previously imposed for two sepa-

                    4
rate bank robberies. At the sentencing for his current offenses, he
argued that the prior robbery and obstruction of justice offenses were
related and should have been counted as one, see USSG § 4A1.2,
comment. (n.3), because the obstruction of justice arose out of the
bank robbery. The district court correctly determined that the two
offenses could not be related because Beaman had been arrested for
the bank robbery before he committed the obstruction. Offenses sepa-
rated by an intervening arrest are never considered related. Id. We
find that the district court properly applied the guideline.

The conviction and sentence are affirmed. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.

AFFIRMED

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