U.S. v. Christoph
| Decision Date | 25 May 1990 |
| Docket Number | No. 89-3818,89-3818 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Joseph J. CHRISTOPH, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Catherine H. Killam, argued, Office of the U.S. Atty., Toledo, Ohio, for plaintiff-appellee.
Spiros P. Cocoves, argued, Toledo, Ohio, for defendant-appellant.
Before: KEITH and MILBURN, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.
Defendant-appellant Joseph Christoph appeals the district court's refusal to reduce his offense level under the United States Sentencing Guidelines ("Guidelines") for acceptance of responsibility and the district court's upward departure from the Guidelines upon his guilty plea to two counts of credit card fraud. For the reasons that follow, we affirm.
On March 1, 1989, a federal grand jury charged defendant with two counts of credit card fraud in violation of 18 U.S.C. Sec. 1029(a)(1) and (2). Defendant first pleaded not guilty; however, on April 28, 1989, he withdrew his earlier plea and entered a guilty plea pursuant to a plea agreement.
The district court pronounced sentence on July 24, 1989, and the Judgment Including Sentence was entered on July 27, 1989. On August 3, 1989, the district court filed an Amended Judgment Including Sentence nunc-pro-tunc. On September 5, 1989, defendant filed a "Motion for Enlargement of Time to File Late Appeal" with the district court. In an affidavit to this court, defendant's counsel avers that she tendered a notice of appeal with the district court clerk contemporaneous with the motion for enlargement of time. On September 8, 1989, in a marginal entry, the district court granted enlargement of time. The district court clerk file-stamped the notice of appeal September 8, 1989. On February 23, 1990, we entered an order directing the parties to brief the jurisdictional issue of whether the notice of appeal was timely filed.
On April 16, 1988, a man identifying himself as Jeffrey Wells made a room reservation at the Radisson Hotel in Toledo, Ohio for Chris Joseph. Wells said that both he and Chris Joseph were associated with Concierge International. A man arrived by limousine to claim the room. Later, defendant Joseph J. Christoph, using the name Chris Joseph, charged the hotel and limousine services totaling $1,496.20 to an American Express card number which he was not authorized to use. Also during his stay at the Toledo Radisson, Christoph used a fictitious American Express card number to purchase a $3,763.00 Rolex watch from Osterman Jewelry Store. The defendant admitted the two transactions; however, he maintained that he found the numbers in the trash and that he acted alone.
The Presentence Investigation Report ("PSI") set defendant's offense level at 13 points. This was based upon a minimum score of 13 because defendant "committed [the] offense as part of a pattern of criminal conduct from which he derived a substantial portion of his income." See Guidelines Sec. 4B1.3. Defendant does not challenge this determination on appeal. However, he does challenge the district court's refusal to reduce the offense level for acceptance of responsibility.
At sentencing, the subject of defendant's acceptance of responsibility for his conduct first came up when the defendant objected to any implications in the PSI that he was part of an organized ring or acted in any manner other than alone. The government explained to the court that it was making no argument for enhancement on the grounds that defendant was part of an organized ring; however, the government took the position that defendant's insistence that he acted alone, despite strong evidence to the contrary, suggested a failure to accept responsibility. The government explained that while in jail on the present charges, defendant was able to obtain credit card numbers and fraudulently charge approximately $5,000 worth of clothing. These same credit card numbers used by Christoph had recently been used in a similar scheme in New Orleans. When the court questioned the defendant, he did not deny the conduct. The court agreed with the government that defendant's insistence that he acted alone "cast some doubt on his acceptance of responsibility."
The matter of acceptance of responsibility also came up when the district court dealt with defendant's objection to the PSI's failure to reduce his sentence for acceptance of responsibility. The PSI quoted the defendant as stating, "I'm not guilty as charged, but it's my responsibility." The record also shows that despite evidence defendant gained custody of the Rolex watch, he insisted at sentencing that he never obtained possession and should not be held responsible for restitution. When the district court threatened to hold a hearing on the issue, the defendant finally acquiesced in the government's position that he did gain possession of the watch. The defendant argued to the district court that "being prepared to plead guilty ... is accepting responsibility in a pretty big way," and, through counsel, suggested that he would be happy to answer any questions from the court.
The court responded:
Well, it seems to me that the fact that he has denied criminal responsibility for this act ... or denied committing a criminal act, but said I am taking responsibility anyway, and then goes over to the jail and promptly orders $5,000 worth of goods, and then here today he is jerking us around on whether or not the Rolex watch was ever received, and now today concedes, well I got it.
* * * * * *
I don't know what is going on in his mind, frankly, but it certainly isn't that degree of admission and contriteness that we look for in defendants so I am not going to eliminate the awarding of, or the denial of awarding two points for acceptance of responsibility.
Based upon the determination that the defendant did not demonstrate an acceptance of responsibility, the sentencing range for defendant was a period of thirty-three to forty-one months. This was based upon the offense level of thirteen and a criminal history category of VI. The offense level was based upon a minimum score of thirteen for a defendant who maintains a criminal livelihood (i.e., commits the offense as "part of a pattern of criminal conduct from which he derived a substantial portion of his income"). See Guidelines Sec. 4B1.3.
The criminal history category was based upon a criminal history score of seventeen from past convictions including several instances of credit card fraud dating back to November 16, 1980. The PSI also revealed numerous instances of past criminal conduct and fifteen pending charges in several states which did not enter the criminal history computation. Several of those instances involved fraudulent use of credit cards. Defendant did not object to the PSI's characterization of his past and pending criminal charges and convictions, but he did point out to the court that he had not been convicted of fraudulent use of a credit card in connection with the latest instance of obtaining goods while incarcerated.
The PSI also stated that the crime involved "more than minimal planning" and "a scheme to defraud more than one victim." This determination was not challenged. The PSI informed the district court that the combined presence of "more than minimal planning," and "a scheme to defraud more than one victim," the pending charges, and the several instances of criminal conduct which did not result in a conviction were all factors which might warrant departure from the Guidelines.
After hearing defendant and defendant's counsel, the court pronounced a sentence of sixty months, instead of the Guidelines range of thirty-three to forty-one months. The court explained its reasons as follows:
Recognizing the guideline range, but also recognizing that I have before me a case that certainly involves more than minimal planning, extensive planning I think....
But there was a good deal of planning that has gone into this and every other offense you have committed. And it is also a scheme to defraud more than one victim, and you have a very, very lengthy criminal record, all of which I think required this Court to depart from the guidelines upward. You have habitually victimized persons and merchants who own and accept credit cards, especially those who accept the American Express Card....
In any case, it is extremely likely that whether in or out, you are going to continue this course of conduct, and I can only hope to make it more difficult for you, for a lengthier period of time.
The issues presented are: (1) whether defendant's notice of appeal was timely filed, (2) whether the district court erred in failing to reduce defendant's sentence for acceptance of responsibility, and (3) whether the district court erred by departing upward from the Sentencing Guidelines.
Under the Sentencing Reform Act of 1984, appellate review of a district court's departure from the Guidelines is limited. 18 U.S.C. Sec. 3742(e). A sentence departing from the Guidelines should be affirmed unless "unreasonable." Id. In determining whether a departure is unreasonable, we consider whether "there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines...." 18 U.S.C. Sec. 3553(b).
Factual findings of the district court are given deference and will stand unless clearly erroneous. 18 U.S.C. Sec. 3742(e). Also, a reviewing court must "give due deference to the district court's application of the guidelines to the facts." Id.; see also United States v. Perez, 871 F.2d 45, 47 (6th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3227, 106 L.Ed.2d 576 (1989).
Because it appeared to us that the notice of appeal in this case was file-stamped forty-three days after entry of...
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