U.S. v. Hardy, 95-1841

• Decision Date: 04 April 1996
• Docket Number: No. 95-1841,95-1841
• Citation: 99 F.3d 1242
• Parties: UNITED STATES of America, Appellee, v. Frederick HARDY, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1242

99 F.3d 1242

UNITED STATES of America, Appellee, v. Frederick HARDY, Defendant, Appellant.

No. 95-1841.

United States Court of Appeals First Circuit.

Heard April 4, 1996.

Decided Nov. 8, 1996.

Owen S. Walker, Boston, MA, for defendant, appellant.

Ralph F. Boyd, Jr., Assistant United States Attorney, Boston, MA, with whom Donald K. Stern, United States Attorney, and Michael J. Pelgro, Assistant United States Attorney, were on brief for appellee.

Before CYR, BOUDIN and LYNCH, Circuit Judges.

CYR, Circuit Judge.

Frederick Hardy challenges two sentencing rulings by the district court which successively denied him a downward adjustment for acceptance of responsibility and imposed an upward departure following his trial and conviction on three felony charges. We affirm the district court judgment.

I BACKGROUND

A. The Offense of Conviction

On the evening of April 18, 1991, multiple gunshots rang out on the grounds of the Lenox Street Housing Development in Boston. Five Boston police officers in plain clothes, members of the Anti-gang Violence Unit, were on routine patrol at the time, and saw Raymond Moreno, Stephen Fernandes, and appellant Hardy run from the area where the shots had been fired. The officers gave chase on foot. Just before submitting to arrest, Moreno handed a long, dark, cylindrical object to Hardy, who kept on running through the residential neighborhood adjacent to the housing development. Shortly after the officers overtook Hardy, but before he could be subjected to arrest, he tossed a loaded Browning .32 caliber semi-automatic pistol onto the ground.

Following Hardy's arrest, the officers retraced his likely route from the shooting scene to the arrest scene and found a fully-loaded, sawed-off, twelve-gauge, double-barrel shotgun planted barrel-up in the backyard garden of a residence occupied by a family with three young children. Nearby, Fernandes was arrested while in possession of an unloaded Helwan 9 millimeter semiautomatic pistol, later confirmed to be the firearm discharged at the Lenox Street Housing Development site where the police first observed Hardy and two associates. Later, Hardy falsely denied knowing either Moreno or Fernandes, claimed to be living with his mother, and gave a false home address.

B. The Trial and First Appeal

Hardy was charged with being a felon in unlawful possession of a firearm, 18 U.S.C. § 922(g)(1), as well as unlawful possession of ammunition, id., and with possession of an unregistered firearm, 26 U.S.C. § 5861(d). As Hardy's extensive criminal record included three violent felonies and one serious drug offense since 1985, the government gave notice that it intended to seek the mandatory minimum fifteen-year prison sentence authorized under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e); see also U.S.S.G. § 4B1.4. Following trial, Hardy was convicted and sentenced to 262 months in prison.

While Hardy's first appeal was pending, this court held that a criminal defendant exposed to an ACCA sentencing enhancement may challenge any predicate state court conviction during his federal sentencing proceeding even though his state court remedies have never been exhausted. United States v. Paleo, 967 F.2d 7, 11-12 (1st Cir.1992). We accordingly remanded Hardy's case to the district court for reconsideration in light of Paleo.

C. The First Remand and Second Appeal

On remand, the district court again imposed a 262-month prison term, after rejecting Hardy's claim that his predicate state court convictions were invalid. United States v. Hardy, 829 F.Supp. 478 (D.Mass.1993). Hardy again appealed. Without reaching the sentencing claims, this court vacated Hardy's federal convictions on the ground that the prosecution had made improper comments during closing argument at trial. United States v. Hardy, 37 F.3d 753 (1st Cir.1994).

D. The Second Remand and Sentencing

During the second remand, Hardy obtained a continuance and successfully challenged two of the predicate state court convictions. As he was no longer subject to the ACCA mandatory minimum sentence, he then pled guilty to all three federal charges.

At the resentencing, the district court began its guideline calculation with a base offense level (BOL) of 18, see U.S.S.G. § 2K2.1(a)(1) (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition) (1990), then adopted a revised presentence report (PSR) recommendation that Hardy not receive a two-level downward adjustment for acceptance of responsibility, see id. § 3E1.1. ¹ The court set Hardy's criminal history category (CHC) at III (6 points), by counting four unvacated prior convictions at one point each, see id. § 4A1.1, ² and adding two points because Hardy was on probation at the time the offense of conviction was committed. The resulting guideline sentencing range (GSR) for Level 18, CHC III, was 33 to 41 months.

The district court decided to make an upward departure due to Hardy's "ten-year history of grievous antisocial conduct," citing eight reasons: (1) CHC III did not adequately reflect either the seriousness of Hardy's past criminal conduct or the likelihood of recidivism; (2) only one month before the offense of conviction, Hardy had been arrested and charged with another "very serious offense"--his and Moreno's shooting and attempted murder of a fourteen-year-old boy, Kenneth Walker, at the same Lenox Street Housing Development; (3) Hardy was on bail in the Walker case at the time he committed the offense of conviction; (4) Hardy had been arrested and charged with four violent felonies between 1985 and 1990, including kidnapping and assault and battery, which were not taken into account in the CHC III calculation since the state court charges had been dismissed; (5) Hardy's two prior state court convictions for assault and battery against his girlfriend and another woman had been vacated, not because Hardy was not responsible for the criminal conduct underlying the convictions but due to procedural infirmities at trial; ³ (6) "the [two] weapons used ... in this federal case [a sawed-off shotgun and semi-automatic pistol] were particularly dangerous weapons"; (7) officers of the Anti-gang Violence Unit attested that the offense of conviction was part of a long series of violent drug-related offenses in the same neighborhood, committed by street gangs like the Columbia Point Dogs, of which Hardy, Moreno, and Fernandes were known members; and (8) the offense of conviction occurred in an economically depressed neighborhood "where very vulnerable people live."

The district court determined that even a full "horizontal" departure from Level 18, CHC III (33-41 months), to Level 18, CHC VI (57-71 months), would be inadequate to reflect these eight factors. Accordingly, the court determined upon a "vertical" upward departure as well, from Level 18, CHC VI (57-71 months) to Level 24, CHC VI (100-125 months). The court gauged its vertical departure through reference to the 121-151 month (Level 32, CHC I) GSR which would have been applicable to Hardy under the then-current (i.e., November 1994) guidelines. ⁴ Ultimately, the court settled upon the 120-month prison sentence from which Hardy now appeals.

II DISCUSSION

A. Acceptance of Responsibility

The district court denied a two-level downward adjustment for acceptance of responsibility see U.S.S.G. § 3E1.1, for the following reasons:

There was in fact a trial of the offense in this case four or so years ago, [during which] the defendant denied knowing the codefendant in that case, and ... that ... does bespeak ... failure to accept responsibility, and then there was an appeal ... during which there still was no acceptance of responsibility, and ... I think I should consider the fact ... that a plea of guilty in this case did not occur ... until [after Hardy's two predicate convictions had been set aside in state court.] I don't criticize counsel for undertaking that because it makes some difference to the kinds of sentence that may be ultimately imposed in this case, but it strikes me that none of this suggests that there has been a sincere acceptance of responsibility.

Hardy asserts two challenges to the district court ruling. ⁵

First, while acknowledging that he must establish any entitlement to an adjustment for acceptance of responsibility, see United States v. Gonzales, 12 F.3d 298, 300 (1st Cir.1993), Hardy argues that section 3E1.1 creates a rebuttable presumption that a defendant who has pled guilty has carried his burden of proof, even though the record discloses no affirmative manifestations of remorse. U.S.S.G. § 3E1.1, comment. (n.3) (1994).

This contention is severely undercut by the pertinent guideline commentary, however, which plainly provides that "[e]ntry of a plea of guilty prior to the commencement of trial combined with truthful admission of involvement in the offense and related conduct will constitute significant evidence of acceptance of responsibility." U.S.S.G. § 3E1.1, comment. (n.3) (emphasis added). The revised PSR discloses that Hardy, despite ample time and opportunity, has never truthfully admitted the facts underlying the offense of conviction, let alone subjectively manifested "candor and authentic remorse." See United States v. Wheelwright, 918 F.2d 226, 229 (1st Cir.1990).

Moreover, even assuming Hardy had truthfully admitted the relevant facts, nothing in the commentary upon which he relies remotely indicates that a guilty plea, even combined with a truthful admission, see U.S.S.G. § 3E1.1, comment. (n.3), gives rise to a rebuttable presumption that a two-level downward adjustment for acceptance of responsibility will follow. Indeed, Hardy's prolonged reticence aside, the commentary explicitly states that even the "significant evidence of acceptance of responsibility" generated by "a plea of guilty prior to the commencement of trial combined with truthful admission," id., "may be outweighed by conduct of the...