United States v. Gary Harvey

MEMORANDUM

Gary Raymond Harvey appeals from the district court’s judgment and challenges his guilty-plea conviction and 36-month sentence imposed for making false claims for refund, in violation of 18 U.S.C. § 287 . We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

Harvey contends that the district court erred by denying his motion for judgment of acquittal. Harvey waived the right to appeal the denial of the motion by entering an unconditional guilty plea. See United States v. Lopez-Armenta, 400 F.3d 1173, 1175 (9th Cir.2005).

Harvey next contends that the district court erred by denying him a two-level adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. He argues that the court failed to consider his allocution at sentencing and instead improperly weighed Harvey’s constitutionally protected post-plea conduct against him. The record shows that the district court based its denial on the record as a whole and did not clearly err. See United States v. Ramos-Medina, 706 F.3d 932, 942 . (9th Cir.2013). Although Harvey ultimately admitted guilt, his actions were inconsistent with acceptance of responsibility and failed to show the requisite contrition to…