United States v. Teesateskie ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5692
LLOYD OSCAR TEESATESKIE, SR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Bryson City.
Lacy H. Thornburg, District Judge.
(CR-95-8)
Submitted: June 18, 1996
Decided: July 1, 1996
Before HALL, MURNAGHAN, and WILLIAMS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Clarke K. Wittstruck, Asheville, North Carolina, for Appellant.
Mark T. Calloway, United States Attorney, Jerry W. Miller, Assistant
United States Attorney, Asheville, 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Unpublished opinions are not binding precedent in this circuit.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:
Lloyd Teesateskie entered a guilty plea to one count of second
degree murder. He appeals his sentence. Teesateskie claims that the
district court erred in denying him a 3-level adjustment for acceptance
of responsibility under United States Sentencing Commission,
Guidelines Manual, § 3E1.1(b) (Nov. 1994). Finding that the district
court did not clearly err in making its sentencing determination, we
affirm.
On New Year's Eve of 1994, Lloyd Teesateskie and his wife had
a party. At approximately 2:00 a.m. on New Year's Day, January 1,
1995, Teesateskie's wife and Teesateskie's brother approached Tee-
sateskie, who was sitting in his car on the Cherokee Indian Reserva-
tion. Teesateskie and his wife got into an argument. Teesateskie
became agitated, grabbed a handgun, and got out of his car. Teesates-
kie brought the gun up and fired over his brother's shoulder. The bul-
let struck Teesateskie's wife between the eyes, killing her instantly.
Teesateskie was later arrested. In explaining to the authorities what
happened, Teesateskie stated that he fired the gun once, straight up
into the air and that he had no idea how his wife had been shot
directly between the eyes. Teesateskie later told a similar story to the
FBI; stating that he fired the gun straight up in the air. Teesateskie
stated further that his brother was never outside the house and that the
gun discharged a second time when Teesateskie's sons wrestled Tee-
sateskie to the ground after the shooting. Teesateskie, again, claimed
that he had no idea how his wife was shot.
Teesateskie was charged with first degree murder and illegal use
of a firearm. During the course of jury selection, Teesateskie agreed
to plead guilty to second degree murder. As part of the plea agree-
ment, the firearms charge was dropped. The district court accepted the
plea. At sentencing, Teesateskie sought a three-point acceptance of
responsibility reduction under USSG § 3E1.1(b), rather than the two-
point reduction recommended in the presentence report. The govern-
ment objected to the additional point reduction, claiming that Tee-
sateskie was only entitled to a two-point reduction because he had not
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timely provided complete information regarding his offense involve-
ment and he had not timely shown his intention to plead guilty. The
district court agreed and denied the additional point reduction.
When the issue is primarily a factual one, as here, this Court
applies a clearly erroneous standard of review. United States v.
Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). In addition, the sen-
tencing court's determination regarding a reduction for acceptance of
responsibility is entitled to great deference. 18 U.S.C.A. § 3742 (West
1985 & Supp. 1996); United States v. Cusack, 901 F.2d 29, 31 (4th
Cir. 1990). A three-level reduction is available under section 3E1.1(b)
to a defendant who (1) timely provides complete information to the
government about his own involvement in the offense, or (2) timely
notifies the government that he intends to plead guilty, thus saving the
government the effort of trial preparation and also saving the court's
time.
Teesateskie argues on appeal that his initial statements entitle him
to a reduction because he provided complete information about his
offense involvement. However, Teesateskie's initial explanation
about shooting his gun in the air, was not a complete, or even truthful,
account of the incident. In the alternative, Teesateskie contends that
his notice of his intent to plead guilty was timely because it still had
value for the government. Any guilty plea, no matter when offered,
has some value to the government. The question is not of value, but
of timeliness. The commentary to section 3E1.1 states that conduct
qualifying a defendant for the additional level"will occur particularly
early in the case," and "at a sufficiently early point in the process so
that the government may avoid preparing for trial." U.S.S.G. § 3E1.1,
comment. (n.6). Teesateskie's decision to plead, coming at the time
of jury selection, clearly was not early enough in the process to
relieve the government of its burden of preparing for trial. Thus, the
district court did not clearly err in finding that Teesateskie failed to
qualify for a three-level adjustment.
For the foregoing reasons, we affirm the judgment of the district
court. We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED
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