UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                          No. 98-4110
MARCIA RENEE RAY PERRY, a/k/a
Marcia R. Perry,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
N. Carlton Tilley, Jr., District Judge.
(CR-97-46, CR-97-47)

Submitted: September 8, 1998

Decided: October 16, 1998

Before WIDENER, ERVIN, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Louis C. Allen, III, Federal Public Defender, Eric D. Placke, Assistant
Federal Public Defender, Greensboro, North Carolina, for Appellant.
Walter C. Holton, Jr., United States Attorney, Harry L. Hobgood,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Marcia Renee Ray Perry appeals the 57-month sentence she
received after she pled guilty to two counts of credit card fraud, 18
U.S.C.A. § 1029(a)(2), (c)(1) (West Supp. 1998), and two counts of
making false claims, 18 U.S.C. § 287 (1994). Perry contends that the
district court clearly erred in denying her an adjustment for accep-
tance of responsibility because of her continued criminal conduct
while she was released on bond pending trial, see USSG § 3E1.1,1 and
abused its discretion when it departed above criminal history category
VI, see USSG § 4A1.3, p.s. We affirm.

Between October and December 1996, Perry used two credit cards
belonging to her father without his permission to obtain over $30,000.
In January 1997, Perry filed two tax returns, one in her own name and
one under a false name, and received refunds of $9,218 and $10,676,
based on wages she falsely claimed to have earned working for her
father in 1996. Perry was arrested in February 1997 and released on
bond. Over the next several months, she committed numerous addi-
tional frauds in attempts to obtain money, jewelry, a car, and other
items. A bond hearing was scheduled, but Perry failed to appear.
Sometime during the summer, she was arrested on state charges. In
September 1997, she entered a guilty plea to the instant federal
offenses.

Because Perry continued her criminal conduct after she was
indicted, in violation of the conditions of her pretrial release, the dis-
trict court determined that she had not accepted responsibility for her
conduct underlying the federal offenses. Perry argues on appeal that
she was entitled to an adjustment for acceptance of responsibility
because she entered a guilty plea and discussed her criminal conduct
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1 U.S. Sentencing Guidelines Manual (1997).

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candidly with the probation officer.2 We review the district court's
decision for clear error. See United States v. Kidd, 12 F.3d 30, 34 (4th
Cir. 1993). While a guilty plea may be evidence of acceptance of
responsibility, it may also be outweighed by conduct inconsistent with
acceptance of responsibility. See USSG § 3E1.1, comment. (n.3).
Consequently, denial of the adjustment based on post-indictment
criminal conduct was not clearly erroneous. See Kidd, 12 F.3d at 34.

Next, Perry contends that the district court abused its discretion
when it departed upward on the ground that criminal history category
VI was inadequate. She argues that her prior record was not serious
enough to warrant a departure because her offenses were non-violent.
A sentencing court is encouraged to depart upward when a defen-
dant's criminal history category does not adequately reflect the seri-
ousness of her past criminal conduct or the likelihood that she will
commit further crimes. See USSG § 4A1.3. When a factor being con-
sidered as a basis for departure is an encouraged factor, a court must
determine whether or not it has been adequately taken into account by
the applicable guideline. See United States v. Brock, 108 F.3d 31, 34
(4th Cir. 1997) (citing Koon v. United States , 518 U.S. 81, 96 (1996)).
The district court's decision that an encouraged factor has not been
adequately taken into account by the applicable guideline is reviewed
de novo. See United States v. Rybicki, 96 F.3d 754, 757-58 (4th Cir.
1996).

This court has previously held that a departure above category VI
is possible when the district court determines that category VI under-
represents the seriousness of the defendant's criminal history. See
United States v. Cash, 983 F.2d 558, 561 (4th Cir. 1992). Here, the
district court found that a departure was justified because Perry had
twenty-five criminal history points and a record of almost continuous
fraudulent behavior beginning in 1980. Moreover, approximately
eighty-eight worthless check convictions were excluded from her
criminal history under USSG § 4A1.2(c).3 Therefore, we cannot find
that the district court erred in deciding to depart above category VI.
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2 Perry was candid only about the use of her father's credit cards. She
said she did not remember filing the false tax returns.
3 Under USSG § 4A1.2(c), sentences for certain offenses, including
insufficient funds checks, are not counted unless (1) the sentence was a
term of probation of at least one year or imprisonment of at least 30 days,
or (2) the prior offense was similar to an instant offense. Perry's sen-
tences consisted of restitution, court costs, fines, a suspended sentence,
and unsupervised probation.

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Perry also claims that the extent of the departure--the equivalent
of an increase of four offense levels--was unreasonable. Criminal
history category VI (the highest criminal history category) accounted
for only thirteen of Perry's twenty-five criminal history points. The
district court extrapolated four theoretical higher criminal history cat-
egories to account fully for Perry's twenty-five criminal history points,4
and then moved down the sentencing table by four offense levels to
account for the extrapolated criminal history categories. See Cash,
983 F.2d at 561 & n.6 (approving increase in offense levels to struc-
ture departure above criminal history category VI). The departure
increased the sentencing range from 33-41 months to 51-63 months.
We do not find that the district court abused its discretion in deciding
to depart by that extent.

Finally, Perry maintains that the court failed to explain why the
intermediate levels were inadequate. See Cash , 983 F.2d at 561 n.7
(in departing for inadequacy of criminal history, court should depart
to next higher category and move to still higher category only on find-
ing that next higher category inadequately reflects seriousness of
defendant's record) (citing United States v. Rusher, 966 F.2d 868,
884, 890 (4th Cir. 1992)). While the district court did not give a sepa-
rate explanation of inadequacy for each higher offense level, its ratio-
nale of advancing one level to account for each additional three
criminal history points was self-explanatory, and complied with the
dictates of Rusher and Cash.

We therefore affirm the sentence. The government's motion to sub-
mit the case on the briefs is granted. 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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4 The court found that 13-15 criminal history points would constitute
category VI, 16-18 points would constitute category VII, 19-21 points
would constitute category VIII, 22-24 points would constitute category
IX, and 25 points would constitute category X.

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