U.S. v. Brown

• Decision Date: 22 January 2003
• Docket Number: No. 01-5189.,01-5189.
• Citation: 316 F.3d 1151
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rebecca Zoe BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

316 F.3d 1151

UNITED STATES of America, Plaintiff-Appellee, v. Rebecca Zoe BROWN, Defendant-Appellant.

No. 01-5189.

United States Court of Appeals, Tenth Circuit.

January 22, 2003.

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Barry L. Derryberry, Office of the Public Defender, (Jack B. Schisler, Assistant Public Defender, with him on the briefs), Tulsa, OK, for the Defendant-Appellant.

Kevin C. Danielson, Assistant United States Attorney, Northern District of Oklahoma (David E. O'Meilia, United States Attorney, and Kenneth P. Snoke, Assistant United States Attorney, on the brief), Tulsa, OK, for the Plaintiff-Appellee.

Before SEYMOUR, EBEL, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

Rebecca Zoe Brown pleaded guilty to bank fraud in violation of 18 U.S.C. § 1344(1), but before her sentencing hearing, she forged two letters of support. On appeal, she argues that (1) the district court erred in refusing to grant a downward departure from the sentencing guideline range under § 5K2.13 of the United States Sentencing Guidelines based upon diminished mental capacity; and (2) that the district court err in granting a one-level, rather than two-level, downward adjustment in the offense level under USSG § 3E1.1(a) for acceptance of responsibility. For the reasons detailed below, we dismiss Ms. Brown's appeal of the first ruling and affirm the district court's second ruling.

BACKGROUND

Ms. Brown worked as a nurse at several Tulsa, Oklahoma hospitals. Using personal information obtained from patients, she made unauthorized withdrawals from the patients' bank accounts and charged approximately $70,000.00 in purchases to their credit cards. A federal grand jury indicted Ms. Brown on a number of charges, and she eventually pleaded guilty to the commission of bank fraud in violation of 18 U.S.C. § 1344(1). The district court dismissed the remaining counts.

In preparation for sentencing, Ms. Brown submitted two allegedly forged letters of support from nursing colleagues. The district court was informed of the alleged forgeries and held an investigative hearing. After the hearing, the district court concluded that the letters were forgeries. The district court also concluded that certain statements of support in the letters reflected the actual views of the people whose letters and signatures were falsified. Nevertheless, the district court stated that the evidence "can only compel the Court's conclusion of fabrication." Aple's App. at 4 (Sentencing Hr'g dated June 29, 2001). The district court also stated "when people stand here ... and say these are the facts, let's do the right thing based on these facts and it turns out that the facts — those aren't the facts, those just happen to be the documents ... then it enormously undermines the system, id. at 8, and added, "I'm simply troubled by that input being manufactured." Id. at 11.

At the sentencing hearing, the district court calculated Ms. Brown's criminal history category as one and her offense level as 16. The offense level determination reflected a two-level enhancement for obstruction of justice under USSG § 3C1.1 and a one-level reduction for acceptance of responsibility under USSG § 3E1.1(a). Significantly, Ms. Brown's trial counsel did not object to the one-level reduction under § 3E1.1.

These sentencing determinations produced an applicable sentence range of between 21 and 27 months of imprisonment. Despite Ms. Brown's submission of evidence suggesting that she suffered from diminished mental capacity at the time of her criminal conduct, the district court refused to enter a departure under USSG § 5K2.13 for diminished mental capacity. The court sentenced Ms. Brown to 24 months' imprisonment and ordered her to pay $71,021.13 in restitution.

DISCUSSION

I. USSG § 5K2.13

Ms. Brown first challenges the district court's refusal to depart downward under § 5K2.13 on the basis of diminished mental capacity. We may exercise jurisdiction to review a sentencing court's refusal to depart from the sentencing guidelines only in the very rare circumstance that the district court states that it does not have any authority to depart from the sentencing guideline range for the entire class of circumstances proffered by the defendant. United States v. Whitaker, 152 F.3d 1238, 1240 (10th Cir.1998).

Here, the district court stated:

The Court finds that the requirements of 5K in this case, ... [i.e.,] that [Ms. Brown] ... [has] a significantly impaired ability to (A) understand the wrongfulness of the behavior comprising the offense or to exercise a power of reason, or (b) control behavior that the [she] knows is wrongful, that [—] applying either of th[e]se prongs to the facts of this case [—] that the Court finds that neither prong has been satisfied in this record, and therefore [that] the motion for the downward departure is denied.

Rec. vol. III, doc. 1, at 56 (Sentencing Hr'g dated Sept. 28, 2001).

The district court thus (1) acknowledged the court's authority to depart pursuant to USSG. § 5K2.13, (2) applied § 5K2.13 to the facts of Ms. Brown's case, and (3) simply declined, on those facts, to enter the requested departure. Because the district court recognized its authority to depart, we lack jurisdiction to review the decision not to grant the requested departure.

II. USSG § 3E1.1(a)

Ms. Brown next challenges the district court's grant of a one-level downward adjustment in offense level under USSG § 3E1.1(a) for acceptance of responsibility. Ms. Brown argues that she was entitled to a two-point downward adjustment.

A. Standard of Review

Because Ms. Brown did not object in the district court to the imposition of a one-level adjustment under the guidelines, we review her sentence for plain error, applying the four-step analysis recognized by the Supreme Court in United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), and reaffirmed in Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). See United States v. Battle, 289 F.3d 661, 669-70 (10th Cir. 2002) ("Battle further contends that the district court erred in applying the guidelines.... These sentencing issues are raised for the first time in this appeal.... We review his contentions for plain error") (citing Johnson, 520 U.S. at 467, 117 S.Ct. 1544), cert. denied, ___ U.S. ___, 123 S.Ct. 219, 154 L.Ed.2d 91 (2000).¹ Although "[w]e will ... apply the plain error rule less rigidly when reviewing a potential constitutional error,'" United States v. Nelson, 36 F.3d 1001, 1003 (10th Cir.1994) (internal quotation marks omitted), Ms. Brown does not allege a constitutional error, nor do we perceive such a violation in the alleged misapplication of § 3E1.1.

Accordingly, we decline to apply a relaxed standard of plain error review, and apply a traditional full-rigor plain error analysis. This analysis allows us to use our discretion to reverse unobjected-to error on plain error review if we find four elements: "(1) `error'; (2) that is `plain'... (3) that `affects substantial rights,'" Johnson, 520 U.S. at 467, 117 S.Ct. 1544 (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770), and (4) that "seriously affects the fairness, integrity, or public reputation of judicial proceedings." Olano, 507 U.S. at 732, 113 S.Ct. 1770.

B. Analysis

1. Error

The first issue on plain error analysis is whether the district court erred. We hold that the district court did err when it concluded that USSG § 3E1.1 permits a compromise one-level downward adjustment for acceptance of responsibility.

We begin our analysis by reviewing the district court's consideration of the interplay between two guideline sections: §§ 3C1.1 and 3E1.1. Section 3C1.1 provides for a two-level upward adjustment in sentencing offense level when the sentencing judge concludes that "the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense of conviction." USSG § 3C1.1.

Section 3E1.1 states that "[i]f the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels" (emphasis in original). USSG § 3E1.1. The commentary to § 3E1.1 states that "[c]onduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct." Id. at cmt. n. 4 (2002). The commentary further provides, however, that "[t]here may, however, be extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply." Id.

Applying those two guidelines to Ms. Brown's case, the district court found that (1) Ms. Brown's conduct warranted a two-level upward adjustment for obstruction of justice under § 3C1.1, and that (2) a one-level downward adjustment for acceptance of responsibility was warranted under § 3E1.1, and stated.

this is indeed a unique case for purposes of acceptance of responsibility.... The obstruction of justice went to leniency issues, not culpability issues. It is not dealing with the kind of obstruction that would destroy the ability of the United States to prosecute, but rather sought to give coloration to the defendant and put her in the most positive light. Moreover,... certain of these people would have written the same thing. So therefore, while it does not change the fact that it is obstruction, it does go to the weight of the acceptance of responsibility, or at least the degree to which the acceptance of responsibility will be lost.

Rec. vol. III, doc. 1, at 39 (Sentencing Hr'g dated Sept. 28, 2001).

Because neither the Supreme Court nor this court has directly addressed the issue of whether a one-point reduction may be awarded pursuant to USSG § 3E1.1(a), we look to the guideline's text, to applicable precedent from other circuits, and to the arguments regarding the interpretation of the guideline.

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