U.S. v. Aimufua
Decision Date | 12 July 1991 |
Docket Number | No. 90-8594,90-8594 |
Citation | 935 F.2d 1199 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Efosa Lyon AIMUFUA, Defendant-Appellant. Non-Argument Calendar. |
Court | U.S. Court of Appeals — Eleventh Circuit |
Lynn Fant, Federal Defender Program, Inc., Atlanta, Ga., for defendant-appellant.
Amy D. Levin, Asst. U.S. Atty., Atlanta, Ga., for appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before KRAVITCH, HATCHETT and EDMONDSON, Circuit Judges.
In this sentencing case, we hold that the district court's denial of a two-point reduction for acceptance of responsibility and departure upward one level based on the commission of the same offense does not amount to impermissible double counting under the Sentencing Guidelines.
In March, 1988, Efosa Lyon Aimufua (Aimufua) submitted an application for temporary resident status to the Immigration and Naturalization Service (INS). On the application, Aimufua stated that he had been employed from February, 1986, through June, 1986, as a field worker in Huntsville, Alabama, by Lurlee Curry. Aimufua also submitted an affidavit signed by Curry and himself confirming his employment from February to June, 1986.
In June, 1989, an INS special agent interviewed Lurlee Curry and Curry told the agent that he could neither read nor write and that Aimufua had misrepresented the purpose of the document bearing his signature. Curry then signed a sworn affidavit stating that he never employed Aimufua between February and June of 1986.
In August, 1989, a grand jury indicted Aimufua on two counts of making false statements to the INS as a result of his application for temporary resident status in violation of 8 U.S.C. Sec. 1160(b)(7)(A)(i). Between the time of his initial appearance and his indictment, the court released Aimufua on $6,000 bond. In September, 1989, Aimufua entered a plea of guilty to both counts of the indictment. Prior to trial in November, 1989, South Carolina authorities arrested Aimufua for bank fraud. Aimufua entered a guilty plea in the South Carolina District Court, and the court postponed sentencing in the bank fraud case pending sentencing in this immigration case.
Following receipt of the Pre-Sentence Investigation Report (PSI), the court assessed Aimufua's base offense level as 8 with a criminal history category of II, giving him a guideline range of four to ten months in prison. * In May, 1990, the district court sentenced Aimufua to twelve months in prison. The district court denied Aimufua's motion for a two-point reduction for acceptance of responsibility under Sentencing Guideline Sec. 3E1.1 because Aimufua had committed bank fraud while on bail for this offense. Additionally, the district court departed upward two points under Sentencing Guideline Sec. 5K2.0 because Aimufua's offense level and criminal history did not account for the bank fraud he committed while on bail.
Aimufua presents one issue on appeal: whether the district court erred in denying him a two-point reduction for acceptance of responsibility and departing upward one level based on his commission of a felony in South Carolina while on bail.
The issue of double counting under U.S.S.G. Secs. 3E1.1 and 5K2.0 is one of first impression in this circuit. Aimufua argues that the denial of a two-point reduction for acceptance of responsibility and the upward departure by two points under section 5K2.0 punished him twice for the bank fraud offense committed while he was on bail. Additionally, Aimufua argues that the sentence in this case necessarily increased his criminal history score, thereby affecting his upcoming sentence on the bank fraud offense.
We review Aimufua's allegations of error under a de novo standard. See United States v. Goolsby, 908 F.2d 861, 863 (11th Cir.1990) (quoting United States v. Williams, 891 F.2d 212, 214 (9th Cir.1989)). This circuit has held that in those circumstances where the Sentencing Commission intended to except an otherwise applicable element from increasing a sentence, the Commission expressly states its intent. See United States v. Goolsby, 908 F.2d at 863. Thus, we conduct a two-part inquiry in examining Aimufua's claims: (1) whether the Commission intended the result about which Aimufua complains; and (2) assuming the Commission intended that result, whether it is permissible based on the facts of this case. See United States v. Wyckoff, 918 F.2d 925, 927 (11th Cir.1990).
Section 3E1.1, the provision governing acceptance of responsibility, permits a two-point reduction "if the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct." U.S.S.G. Sec. 3E1.1. The commentary to section 3E1.1 provides that in determining whether a defendant qualifies for a two-point reduction for...
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