UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 97-4828

NANCY MUSIC,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Solomon Blatt, Jr., Senior District Judge.
(CR-96-661-9-8)

Submitted: May 26, 1998

Decided: September 1, 1998

Before NIEMEYER, WILLIAMS, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

L. J. Rosintoski, Charleston, South Carolina, for Appellant. J. Rene
Josey, United States Attorney, Sean Kittrell, Assistant United States
Attorney, Charleston, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Nancy Music appeals her sentence imposed after a plea of guilty
to conspiracy to traffic in and use unauthorized access devices in
order to obtain money, goods, and services in excess of $1000, in vio-
lation of 18 U.S.C. § 1209(a)(2) (1994); using or possessing elec-
tronic benefit transfer cards (EBT cards) valued in excess of $5000
in violation of 7 U.S.C. Ch. 51 (1994) (the Food Stamp Program); and
money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(I),
(a)(1)(B)(I) (1994). Finding no error, we affirm.

Music worked as a check-out clerk at Dobbs Market in Burton,
South Carolina, which participated in the Food Stamp Program (FSP).
In November 1993, the United States Department of Agriculture
(USDA) in conjunction with the United States Secret Service (USSS)
began an investigation into Dobbs Market after receiving information
that it was engaged in food stamp fraud. Several undercover sales
were conducted over the course of several months beginning in June
1993, wherein a confidential informant presented food stamp coupons
to a sales clerk at Dobbs Market, and received $.70 on the dollar in
cash in return. No food was purchased during these transactions. An
agent from the USSS discussed the investigation with an Assistant
United States Attorney in March 1994, and the USDA prepared a
written report on the results of the investigation which was sent to the
United States Attorney's office in Columbia, South Carolina in June
1994.

In August 1995, USSS agents interviewed Eva Gadsen, another
clerk at Dobbs Market, who agreed to cooperate with the investiga-
tion. Gadsen related that over the past ten years Solon Dobbs, the
owner of Dobbs Market, had directed her to purchase food stamp cou-
pons for $.70 on the dollar. On two occasions in the next few months,
Gadsen worked undercover and conducted several fraudulent EBT
transactions. The Government did not arrange any more undercover
sales during this time. However, it obtained statements from wit-
nesses identifying several clerks, including Music, as participants in
the fraudulent EBT scheme.

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On December 12, 1995, search warrants were served on Dobbs
Market, resulting in the seizure of ledgers on which sales clerks
recorded the fraudulent EBT transactions. These ledgers showed that
from January 1994 through November 1995, Dobbs Market redeemed
approximately $290,000 in food stamps and EBT transactions. Of
that, $145,163.33 was traceable to fraudulent food stamp and EBT
transactions.

The presentence investigation report (PSR) recommended that
Music's base offense level be set at six under U.S. Sentencing Guide-
lines Manual § 2F1.1 (1995). The PSR also recommended that, based
on the total loss of $145,163.33, Music's base offense level be
increased by seven levels under USSG § 2F1.1(b)(1).

During the sentencing hearing in September 1997, Music objected
to the PSR's calculation of the loss for purposes of determining the
seven level increase under USSG § 2F1.1(b)(1). Music argued that
she should not be held responsible for the full $145,163.33 attribut-
able to fraudulent food stamp and EBT transactions over the entire
course of the investigation through November 1995. Rather, she
argued that she should only be held responsible for the amount of the
loss from the period of June 1993, when the first undercover sale was
made, to December 1994, when she contends that the Government
had sufficient information to prosecute the case. Music contended that
because the Government let the criminal activity continue until
December 1995, the amount of the loss was higher than it would have
been had the Government decided to prosecute earlier, thus increasing
her offense level under USSG § 2F1.1(b)(1).

The district court denied the motion, noting that the Government
did not encourage the criminal conduct and simply let it continue, and
Music could not complain that the Government did not stop her from
engaging in criminal conduct. The court set Music's total offense
level at thirteen in accordance with the PSR, and sentenced her to
twelve months' imprisonment.

On appeal, Music contends that her base offense level was
increased because the Government failed to prosecute the case in
December 1994 when it had sufficient information to do so. Music
contends that the Government's delay in prosecuting resulted in an

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increased base offense level under § 2F1.1(b)(1) and thus an
increased sentence in violation of her due process rights under the
Fifth Amendment.

Music's contention is essentially a "sentencing manipulation" argu-
ment. See United States v. Jones, 18 F.3d 1145, 1154 (4th Cir. 1994).
In Jones, this Court held that even were sentencing manipulation a
recognized theory in this court, it was not outrageous government
conduct warranting a departure from the guidelines for the Govern-
ment to continue to buy narcotics from willing sellers even after the
level of drugs relevant for sentencing purposes was sold. See Jones,
18 F.3d at 1155; see also United States v. Shepard, 4 F.3d 647, 649
(8th Cir. 1993); United States v. Connell, 960 F.2d 191, 194-96 (1st
Cir. 1992). The Government's conduct in this case, simply letting
fraudulent transactions continue, does not amount to outrageous con-
duct resulting in a due process violation. See Jones, 18 F.3d at 1155;
Connell, 960 F.2d at 194.*
_________________________________________________________________
*Music cites United States v. Lovasco, 431 U.S. 783 (1977), and
United States v. Marion, 404 U.S. 307 (1971), in support of her argument
that the Government's delay resulted in a due process violation because
it worked to increase her base offense level. These cases hold that in
order to establish a due process violation resulting from an investigative
preindictment delay, a defendant must show that he was actually preju-
diced by the delay, and that the government intentionally delayed the
indictment for the purpose of gaining a tactical advantage. See Marion,
404 U.S. at 324; Jones v. Angelone, 94 F.3d 900, 905-07 (4th Cir. 1996).
These cases do not deal with the effect preindictment delay has on a
defendant's sentence. Rather, these cases are concerned with the effect
that undue delay may have on a defendant's actual defense at trial, such
as the ability to locate witnesses; the cases are inapplicable here. See
Lovasco, 431 U.S. at 785, 796; Marion, 404 U.S. at 324; Jones v.
Angelone, 94 F.3d at 906-10; United States v. Automated Medical Labs.,
770 F.2d 399, 404 (4th Cir. 1985).

Even were the test set out in these cases applicable, because Music
fails to show that the Government intentionally delayed prosecuting the
case to gain an unfair advantage or for some other bad faith motive,
Music fails to show a due process violation. See Jones v. Angelone, 94
F.3d at 905.

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We affirm Music's 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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