U.S. v. Connelly, 97-30233
| Decision Date | 18 September 1998 |
| Docket Number | No. 97-30233,97-30233 |
| Citation | 156 F.3d 978 |
| Parties | 98 Cal. Daily Op. Serv. 7284, 98 Daily Journal D.A.R. 10,090 UNITED STATES of America, Plaintiff-Appellee, v. Charles CONNELLY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Anthony R. Gallagher, Federal Defender, Great Falls, MT, for defendant-appellant.
Carl E. Rostad, Asst. U.S. Atty., Great Falls, MT, for plaintiff-appellee.
Appeal from the United States District Court for the District of Montana; Donald W. Molloy, District Judge, Presiding. D.C. Nos. CR 96-15-BU-DWM, CR 97-5-BU-DWM.
Before: HUG, Chief Judge, REINHARDT, Circuit Judge, and REED, * District Judge.
Charles Connelly (hereinafter, "Defendant") pled guilty on separate occasions in 1997 to one count of bank fraud under 18 U.S.C. § 1344 and one count of credit card fraud under 18 U.S.C. § 1029(a)(2). Departing upward, and denying a requested downward adjustment for acceptance of responsibility, the district court sentenced him to 60 months for each charge, to be served concurrently. He now challenges his sentence. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
In January 1996 Defendant approached an acquaintance, Richard Husarick, in the state of Ohio and falsely represented to him that he was a loan officer with a local bank. Persuading Mr. Husarick that he would help him consolidate his loans and obtain a line of credit, Defendant acquired an American Express card in Mr. Husarick's name. He subsequently incurred $22,274.14 in unauthorized charges.
In August 1996, after representing to Norwest Bank in Bozeman, Montana that he was an heir to the Pittsburgh Glass Company fortune, Defendant opened a savings account and deposited two checks totalling $16,500. A few days later he opened a checking account at the same Norwest Bank branch and deposited two checks totaling $21,500. All four checks were written on fraudulently established accounts and were dishonored. On August 13, 1996 Defendant attempted to cash a check for $12,500 at the Norwest Bank branch in Billings, Montana; the teller alerted the police and Defendant was arrested. Between his first deposit and his arrest Defendant withdrew $12,169.80 from the Norwest accounts.
Defendant pled guilty to the Montana bank fraud charge on January 21, 1997. Pursuant to Fed.R.Crim.P. 20, he pled guilty in federal district court in Montana to the Ohio credit card fraud charge on July 18, 1997. At that time he was sentenced to terms of 60 months for each charge, to run concurrently, followed by five years of supervised release. The district court denied a requested two-level downward adjustment for acceptance of responsibility, based largely on the court's observations at sentencing.
Additionally, the court departed upward on the ground that Defendant's criminal history category did not "adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes." U.S.S.G. § 4A1.3. Specifically, in 1990 Defendant pled guilty in Ohio state court to three counts of theft, for which he received three concurrent sentences of 18 months. Because the convictions were consolidated for sentencing, they were "related" under U.S.S.G. § 4A1.2 and were therefore counted as one sentence of 18 months, resulting in three criminal history points; had he been sentenced separately on each count, he would have received six more criminal history points. United States v. Smith, 991 F.2d 1468, 1473 (9th Cir.1993) (citing U.S.S.G. § 4A1.2). Second, in 1993 Defendant pled guilty in Ohio state court to one count of attempted receipt of stolen property and one count of forgery, for which he was sentenced to three years' probation in a consolidated sentencing proceeding. This sentence resulted in one criminal history point Defendant now challenges the denial of the acceptance of responsibility adjustment and the upward departure.
had the two convictions not been consolidated for sentencing, he would have received one additional point. The district court departed upward in criminal history by seven points, six points for the 1990 guilty pleas and one point for the 1993 guilty plea, resulting in a criminal history score of 16 and a criminal history category of VI.
A district court's decision to adjust a defendant's sentence based on acceptance of responsibility is a factual determination reviewed for clear error. United States v. Villasenor-Cesar, 114 F.3d 970, 973 (9th Cir.1997). A district court's decision to depart from the Sentencing Guidelines range is reviewed for abuse of discretion. United States v. Sablan, 114 F.3d 913, 916 (9th Cir.1997) (en banc), cert. denied, --- U.S. ----, 118 S.Ct. 851, 139 L.Ed.2d 752 (1998). This standard also applies where the court departs from a criminal history category. United States v. Goshea, 94 F.3d 1361, 1363 (9th Cir.1996). Although a district court abuses its discretion when it makes an error of law, our abuse of discretion standard includes review to determine whether the district court's discretion was guided by erroneous legal conclusions. United States v. Koon, 518 U.S. 81, 116 S.Ct. 2035, 2047-48, 135 L.Ed.2d 392 (1996).
"If the defendant clearly demonstrates acceptance of responsibility" for his offense, then he qualifies for, in this case, a two-level downward adjustment in offense level. U.S.S.G. § 3E1.1(a). Although pleading guilty and truthfully admitting the offense conduct constitute "significant evidence of acceptance of responsibility," this evidence may be outweighed by conduct inconsistent with such acceptance of responsibility. U.S.S.G. § 3E1.1, App. note 3; United States v. Vance, 62 F.3d 1152, 1159 (9th Cir.1995). In particular, a failure to demonstrate contrition and remorse weighs against a finding of acceptance of responsibility, because "implicit in acceptance of responsibility is an admission of moral wrongdoing," as Defendant concedes. United States v. Gallant, 136 F.3d 1246, 1248 (9th Cir.1998); see United States v. Davis, 36 F.3d 1424, 1435-36 (9th Cir.1994) (), cert. denied sub nom., Williams v. U.S., 513 U.S. 1171, 115 S.Ct. 1147, 130 L.Ed.2d 1106 (1995). Lying about offense conduct or relevant conduct also weighs against acceptance of responsibility. Vance, 62 F.3d at 1160.
The district court denied the adjustment because Defendant "clearly stated ... that it's always somebody else's fault ... [and] laid out a pretty good story about what appeared to be a Robin Hood theory of what he was doing." This holding is not clearly erroneous. Regarding the Montana bank fraud count, Defendant asserted at sentencing:
I went to Norwest Bank in Bozeman and I opened an account with a check that wasn't good from a brokerage company that I got from New York to buy food and housing and HIV medication.
Defendant may have at one time thought he was HIV-positive; however, in his allocution he acknowledged that he is not. In any event, of the money placed in the Bozeman account, he spent $6500 on a car and $469 on a mountain bike, and lost $3000 in a poker game. Regarding the Ohio credit card count, Defendant stated:
[Mr. Husarick] had an AIDS fund-raising through the Gay Pride festival in which he took the money, from the bar [he owns], and never got it to the people who were supposed to receive it. And so I went--he told me that he was trying to get a loan from the bank. The guy is crooked. Crooked as could be.... He gave me a corporate credit card. I went and bought furniture and things. I went and bought things that the AIDS money was supposed to buy. But I was not authorized to make those purchases on the credit card because, apparently, I obtained a credit card ...
without--I mean, under fraudulent conditions, fraudulent terms.
I mean, you know, what I did wasn't right. I understand that.... But, unfortunately, in--in the system today, if you get ill, you don't have your Government help you out, you're stuck by yourself.
Defendant demonstrated neither contrition nor remorse, and told a "Robin Hood story" regarding the motive behind his frauds. His statements at sentencing are sufficiently inconsistent with acceptance of responsibility to warrant denial of a downward adjustment.
The district court departed upward pursuant to U.S.S.G. § 4A1.3, which permits departures based upon under-representation of criminal history, observing:
based upon the criminal history and my observations of the Defendant himself, his manner of speaking to the Court and his way indicates to me that it is highly unlikely that this individual is going to not be a recidivist and that he has demonstrated the pattern of conduct throughout his life that would indicate to me he's likely to continue. And, therefore, I find that the criminal history that is stated as nine is under-represented.
The district court departed seven points in criminal history, six points for the 1990 guilty pleas and one point for the 1993 guilty plea, resulting in a post-departure criminal history category of VI. Defendant challenges the decision to depart.
"An upward departure may be warranted when the defendant has committed crimes or conduct that the criminal history calculation instructions fail specifically to consider." United States v. Henderson, 993 F.2d 187, 189 (9th Cir.1993) (citation omitted). We limit our review to the reasons actually given by the sentencing court. Id.; see also United States v. Green, 105 F.3d 1321, 1322 (9th Cir.1997) ().
A sentencing court engages in a four-step departure analysis: 1) it identifies what features of...
To continue reading
Request your trial
-
U.S. v. Patterson
... ... Patterson urges us to hold that the career offender provisions of the Sentencing Guidelines and the mandatory minimum ... ...
-
U.S. v. Daychild
...or the likelihood that the defendant will commit other crimes, an upward departure may be warranted."); see also United States v. Connelly, 156 F.3d 978, 985 (9th Cir.1998) ("Departure is also justified purely on the basis of Defendant's likelihood of Daychild's criminal history is extensiv......
-
U.S. v. Martin
...of at least $2000 through credit card fraud [and] forgery... is ... serious and supports horizontal departure." United States v. Connelly, 156 F.3d 978, 985 (9th Cir.1998).4 Two of Defendant's uncounted offenses were for forgery in excess of $2,000. Taken together with the rental car fraud ......
-
U.S. v. Bad Marriage
...a defendant's past conduct or the likelihood of recidivism was underrepresented can support an upward departure. United States v. Connelly, 156 F.3d 978, 984 (9th Cir.1998). In Connelly, the Court approved an upward departure where it found that the defendant's past conduct was "serious," b......