United States v. Rickey Layne Keeth

141 F.3d 1171 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well. UNITED STATES of America, Appellee, v. Rickey Layne KEETH, Appellant. No. 97-3965. United States Court of Appeals, Eighth Circuit. Submitted March 4, 1998. Filed March 11, 1998. Appeal from the United States District Court for the Western District of Missouri. Before FAGG, BEAM, and HANSEN, Circuit Judges. PER CURIAM. [1] Rickey Layne Keeth appeals the sentence imposed by the district court1 after he pleaded guilty to making a false statement in the acquisition of a firearm, in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(2), and to possessing firearms while subject to a domestic violence protection order, in violation of 18 U.S.C. §§ 922(g)(8) and 924(a)(2). On appeal, Keeth argues that the district court erred in denying him an acceptance-of-responsibility adjustment pursuant to U.S. Sentencing Guidelines Manual § 3E1.1 (1997). We disagree, and affirm. [2] While he was awaiting sentencing in this case, Keeth sent a letter to his ex-wife. At sentencing, the district court determined the letter was threatening and denied Keeth an acceptance-of-responsibility adjustment over his objection. Notwithstanding Keeth's contention that the letter was a sincere expression of good wishes for his ex-wife's future, the district court was free to disbelieve him, and given the undisputed facts underlying Keeth's guilty plea, we conclude that the district court did not clearly err in interpreting the letter as menacing. See United States v. Hawkins, 78 F.3d 348, 352 (8th Cir.) (district court's findings of fact in determining acceptance-of-responsibility adjustment are reviewed for clear error), cert. denied, --- U.S. ----, 117 S.Ct. 126, 136 L.Ed.2d 76 (1996); United States v. Adipietro, 983 F.2d 1468, 1472 (8th Cir.1993) (credibility determinations are virtually unreviewable on appeal). Noting the deference with which we review the district court's determination, we conclude the court did not clearly err in denying Keeth an acceptance-of-responsibility adjustment. See United States v. Johnigan, 90 F.3d 1332, 1338 (8th Cir.1996); see also U.S. Sentencing Guidelines Manual § 3E1.1(a), comment. (n. 5) (1997). [3] Accordingly, the judgment is affirmed. Footnotes [1] The Honorable Ortrie D. Smith, United States District Judge for the Western District of Missouri