U.S. v. Lublin
| Decision Date | 11 December 1992 |
| Docket Number | No. 92-2453,92-2453 |
| Citation | 981 F.2d 367 |
| Parties | UNITED STATES of America, Appellee, v. Allen Robert LUBLIN, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Virginia Villa, Minneapolis, MN, argued, for appellant.
Andrew Stephen Dunne, Asst. U.S. Atty., Minneapolis, MN, argued, for appellee.
Before McMILLIAN, MAGILL, and HANSEN, Circuit Judges.
Allen Robert Lublin appeals from a sentence of imprisonment and supervised release for three counts of using a false social security number. He claims the district court 1 erred by (1) refusing to grant an acceptance of responsibility reduction; (2) adding two points for more than minimal planning; and (3) determining that two prior convictions were not related offenses for purposes of calculating his criminal history score. We affirm.
On April 22, 1991, Lublin, using the alias Allen Marx, withdrew money in the form of a bank check from an account at the Santa Monica Consumer's Credit Union in California. He took this check to the Santa Monica Bank and received three separate cashier's checks in the amounts of $9,900; $9,900; and $9,900.36. On May 5, Lublin moved to Rochester, Minnesota, and rented an apartment under the alias Allen Nash. He listed an address in Torrance, California, as his last residence, and gave a false social security number. On June 3, Lublin rented a post office box at the Austin, Minnesota, post office under the alias Allen Marx. He listed his home address as Seaford, New York.
Also on June 3, Lublin, using the alias Allen Marx, opened accounts jointly with Evelyn Yigdall by purchasing six-month certificates of deposit (CDs) at three different banks in Albert Lea, Minnesota, using the cashier's checks from the Santa Monica Bank. He used a false California driver's license as identification and gave the same false social security number at each of the banks. He also gave the banks a local street address in Austin, Minnesota, which listed to the post office box in Austin.
On June 11, Lublin rented a safety deposit box at the Eastwood Bank in Rochester, Minnesota, under the alias Allen Nash. Lublin returned to the Albert Lea banks several times, attempting to remove Evelyn Yigdall's name from the accounts. On each trip, Lublin represented himself as Allen Marx. He also completed and filed IRS W-9 tax forms under the alias Allen Marx, using the false social security number.
Lublin returned to the banks to close the accounts on December 3. He received the money from each bank in a combination of cash and cashier's checks payable to Allen Marx. After closing the accounts, Lublin went to Austin to close the post office box. When he left the post office, he was stopped by Austin police. Lublin consented to a search of his vehicle, which revealed large amounts of cash and checks, and two California driver's licenses in the names of Allen Lublin and Allen Marx. Lublin also had in his possession typed instructions pertaining to cashing the CDs, how to structure the transactions to avoid detection, and how to answer if a teller asked for his social security card. Austin police took Lublin into custody. On December 4, Rochester police searched Lublin's apartment. This search revealed several types of identification in the names of Allen Nash, Allen Marx, and Paul Allen; typed instructions regarding money and insurance transactions; and a telephone tap detector.
In January 1992, a federal grand jury returned an indictment charging Lublin with three counts of using a false social security number and one count of structuring financial transactions to evade federal financial reporting requirements. While Lublin was still in federal custody, the State of California brought criminal charges and extradition proceedings against Lublin. California authorities also were investigating Lublin in connection with insurance fraud.
Lublin pled guilty in federal district court to three counts of using a false social security number in violation of 42 U.S.C. § 408(g)(2). The government agreed to dismiss the structuring count. Lublin received concurrent sentences of twelve months of imprisonment and three years of supervised release for each of the three counts to which he pled guilty. He appeals from this sentence.
Lublin argues the district court erred when it refused to grant him a two-level reduction for acceptance of responsibility. He asserts the court denied the reduction because he refused to answer certain questions during the presentence investigation. Lublin claims he refused to answer these questions because the answers may have incriminated him in the California criminal proceedings. He claims the court thus violated his Fifth Amendment privilege against self-incrimination. We disagree.
A district court has discretion to reduce a defendant's offense level by two levels if the defendant "clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct." U.S.S.G. § 3E1.1(a) (Nov. 1991). This court will reverse a district court's decision whether to grant a reduction for acceptance of responsibility only for clear error. United States v. Laird, 948 F.2d 444, 447 (8th Cir.1991). The burden of proof is on the defendant to demonstrate acceptance of responsibility for the criminal conduct. See U.S.S.G. § 3E1.1(a) (Nov. 1991).
We have held in the past that § 3E1.1 does not facially violate the Fifth Amendment. United States v. Lyles, 946 F.2d 78, 81-82 (8th Cir.1991). On the record before us, we do not need to reach the question of whether conditioning the acceptance of responsibility reduction on a defendant answering questions regarding potentially incriminating conduct violates the Fifth Amendment. We find the record clearly supports a foundation for denying the reduction on other grounds.
Lublin argues that the amended version of § 3E1.1, which went into effect November 1, 1992, demonstrates that the Sentencing Commission intended the reduction to be granted whenever a defendant admits to the elements of the offense. Under both the 1991 version and the amended version, however, "[a] defendant who enters a guilty plea is not entitled to an adjustment ... as a matter of right." U.S.S.G. § 3E1.1, comment. (n. 3) (Nov. 1992); U.S.S.G. § 3E1.1(c) (Nov. 1991); see United States v. Evidente, 894 F.2d 1000, 1003 (8th Cir.), cert. denied, 495 U.S. 922, 110 S.Ct. 1956, 109 L.Ed.2d 318 (1990). Whether a defendant has accepted responsibility is a factual question, and largely is dependent on a credibility assessment by the sentencing judge. Evidente, 894 F.2d at 1003. We give great deference to the district court's determination because "[t]he sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility." U.S.S.G. § 3E1.1, comment. (n. 5) (Nov. 1991); see United States v. Big Crow, 898 F.2d 1326, 1330 (8th Cir.1990).
The district court stated Lublin was not sincere in accepting responsibility for his crime. It stated Lublin's attitude was that of having been caught on a technicality, and not that he "did wrong" and deserved punishment. The district court's credibility assessment is further supported by the probation officer's assessment in the presentence report. The probation officer noted Lublin did not give any believable indication he had accepted responsibility for his offense, and his statements that he wanted to express his remorse were less than sincere. Additionally, Lublin was not truthful with the probation officer during the presentence investigation, he did not voluntarily withdraw from the offense, see U.S.S.G. § 3E1.1, comment. (n. 1(a)) (Nov. 1991), and he did not assist authorities during investigation of the offense, see id. (n. 1(e)). The district court's denial of the reduction for acceptance of responsibility was not clearly erroneous.
Lublin next claims the district court...
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