U.S. v. Smith, 95-8120

• Decision Date: 05 December 1996
• Docket Number: No. 95-8120,95-8120
• Citation: 106 F.3d 350
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harry Leon SMITH, III, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 350

106 F.3d 350

UNITED STATES of America, Plaintiff-Appellee, v. Harry Leon SMITH, III, Defendant-Appellant.

No. 95-8120.

United States Court of Appeals Eleventh Circuit.

Dec. 5, 1996.

As Amended Feb. 20, 1997.

Mildred H. Geckler, Federal Defender Program, Atlanta, GA, for Defendant-Appellant.

Richard M. Langway, Office of U.S. Attorney, Northern Dist. of GA, Atlanta, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before BARKETT, Circuit Judge, and DYER and HILL, Senior Circuit Judges.

BARKETT, Circuit Judge:

Harry Leon Smith appeals his sentence for executing a scheme and artifice to defraud, and obtaining monies and funds by means of false and fraudulent pretenses, representations, and promises, in violation of 18 U.S.C. § 1344. Essentially, Smith was indicted for, and pled guilty to, running a check kiting scheme, and was sentenced to 18 months imprisonment and five years supervised release, and ordered to pay $269,049.40 in restitution.

In this appeal, Smith raises three issues. First, Smith contends that for purposes of determining the appropriate sentencing range the amount of loss was $35,500, rather than the $458,500 recommended in the presentence report. He argues that the government failed to establish that he had the requisite fraudulent intent for the charged offense when he deposited nine checks totaling $458,500 into his account at First Atlanta and drawn on his Federal Savings Bank ("FSB") account. Instead he argues that he is only responsible for $35,500 which he withdrew from First Atlanta Bank after FSB informed him that checks drawn on that account would not be honored. ¹ Second, Smith contends that he should have received an additional one-level reduction for acceptance of responsibility under § 3E1.1(b) because he (1) timely provided complete factual information to the government, and (2) timely notified authorities of his intention to plead guilty. He argues that the court wrongfully refused to grant the additional one-level reduction because Smith's counsel objected to the amount of loss determination contained in the presentence report. Third, Smith argues that his offense level should not have been increased by two points for more than minimal participation because his withdrawal of $35,500 was a spur-of-the-moment impulse.

Under the facts of this case, we find no merit to Smith's arguments except for his claim that his lawyer's legal arguments should not preclude him from receiving a reduction for acceptance of responsibility under § 3E1.1 if he timely provided complete factual information to the government regarding his illegal actions.

Section 3E1.1 authorizes a two-point reduction in the base offense level "[i]f the defendant clearly demonstrates acceptance of responsibility for his offense," see U.S.S.G. § 3E1.1(a), and an additional one-point reduction if the defendant timely provides complete factual information to the government concerning his own involvement in the offense and/or timely notifies authorities of his intention to plead guilty, see U.S.S.G. § 3E1.1(b). The purposes of the acceptance of responsibility reductions permitted under §§ 3E1.1(a) and (b) are two-fold: first, timely acceptance of responsibility for one's own actions indicates a willingness and capacity for rehabilitation, and second, timely acceptance of responsibility saves the government the time and expense of going to trial. See United States v. De Leon Ruiz, 47 F.3d 452, 455 (1st Cir.1995); United States v. Eyler, 67 F.3d 1386, 1390-91 (9th Cir.1995); United States v. Hammick, 36 F.3d 594, 600 (7th Cir.1994); United States v. Hernandez, 45 F.3d 437 (9th Cir.1994); United States v. Sklar, 920 F.2d 107, 115-16 (1st Cir.1990). Therefore, a defendant generally is not entitled to a reduction if he puts the government to its burden of proof by denying the essential factual elements of guilt. See U.S.S.G. § 3E1.1, comment. (n. 2). However, a defendant who admits factual guilt need not silently accept any punishment that the government chooses to mete out, however incommensurate with the underlying conduct. See United States v. McConaghy, 23 F.3d 351, 353-54 (11th Cir.1994) (defense counsel must be given a reasonable opportunity to properly investigate the charges and contest the legal basis for a conviction or sentence prior to admitting guilt). Otherwise, the constitutional rights to effective assistance of counsel and due...