U.S. v. Luster

• Decision Date: 21 November 1989
• Docket Number: No. 89-1277,89-1277
• Citation: 889 F.2d 1523
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William LUSTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1523

889 F.2d 1523

UNITED STATES of America, Plaintiff-Appellee, v. William LUSTER, Defendant-Appellant.

No. 89-1277.

United States Court of Appeals Sixth Circuit.

Argued Oct. 6, 1989.

Decided Nov. 21, 1989.

Steven L. Hiyama, Asst. U.S. Atty. (argued), U.S. Attorney's Office, Detroit, Mich., for plaintiff-appellee.

Jill L. Price (argued), Federal Public Defenders Office, Detroit, Mich., for defendant-appellant.

Before MARTIN and MILBURN, Circuit Judges, and CONTIE, Senior Circuit judge.

CONTIE, Senior Circuit Judge.

Defendant-appellant William Luster appeals the sentence imposed by the district court pursuant to the Federal Sentencing Guidelines (the guidelines), which were promulgated pursuant to the Sentencing Reform Act of 1984, as amended 18 U.S.C. Sec. 3551 et seq. (1982 ed. Supp. IV) and 28 U.S.C. Secs. 991-98 (1982 ed. Supp. IV). For the following reasons, we affirm the judgment of the district court.

I.

On April 29, 1988, defendant William Luster was arrested by Redship Township police officers for driving a stolen car and possessing narcotics paraphenalia. In a bag in the car were fourteen credit cards in the name of Ethel or Charles Russell. Defendant admitted to fraudulently applying for seven of the fourteen cards after taking Ethel Russell's purse, which contained the other half of the credit cards, during a robbery in September 1987. Defendant explained that he was a $100-a-day heroin addict and sold merchandise purchased with the credit cards to pay for drugs. During a three-month time period, defendant charged $8,223.58 in goods and services to the fraudulently obtained credit cards. An arrest warrant was issued on May 4, 1988.

After eluding arrest for one week, defendant turned himself in to the U.S. Secret Service. He was released on bond but failed to keep in contact with the Pretrial Services Agency or reside with his parents as required by the order for release. On May 26, 1988, the federal grand jury for the Eastern District of Michigan indicted defendant for credit card fraud in violation of 18 U.S.C. Sec. 1029(a)(2). On August 17, 1988, after eluding authorities for three months, defendant was arrested.

On October 5, 1988, defendant pled guilty to the offense charged pursuant to a plea agreement in which the parties agreed to disagree on the applicability of two provisions of the federal sentencing guidelines. Prior to sentencing, defendant filed a Sentencing Memorandum with the court, urging the court to find that his actions warranted a two-level reduction for acceptance of responsibility under Guideline 3E1.1 and contending that the criminal livelihood adjustment, Guideline 4B1.3, was unconstitutional. After a hearing, defendant was sentenced to thirty months imprisonment. Defendant timely appeals.

II.

In the present case, defendant argues that the district court incorrectly applied the guidelines. Appellate review of sentences under the guidelines is set forth in 18 U.S.C. Sec. 3742, which provides in relevant part:

The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous.

Section 3E1.1 of the guidelines allows for a two-level reduction "if the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct." Application Note Five to this guideline sets forth the standard of review for decisions made concerning this section: "The sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation."

This court has recently adopted the "clearly erroneous" standard of review for a district court's acceptance of responsibility determination.

Whether or not a defendant has accepted responsibility for his crime is a factual question. The district court's determination of that question, like its findings with respect to manager status, and minimal participant status, enjoys the protection of the 'clearly erroneous' standard. Because the trial court's assessment of a defendant's contrition will depend heavily on credibility assesements, the 'clearly erroneous' standard will nearly always sustain the judgment of the district court in this area.

United States v. Wilson, 878 F.2d 921 (6th Cir.1989) (quoting United States v. Thomas, 870 F.2d 174, 176 (5th Cir.1989)).

Defendant argues that the sentencing court misapplied the guidelines by failing to give him a two-level reduction for his acceptance of responsibility, which was apparent from his guilty plea without extensive motion practice, affirmative statements of his guilt at the time of his bond hearing, and cooperation in the preparation of his Presentence Report.

The government argues that defendant does not deserve the reduction because throughout the summer of 1988 from the time the federal complaint was pending in May 1988 until his arrest on the indictment on August 17, 1988, defendant did what he could to deny responsibility for his conduct. He lied to the Pretrial Services Agency about where he lived and worked, carried false identification, failed to appear for his preliminary examination, and intentionally eluded federal authorities. It was not until defendant was arrested and involuntarily detained that he showed some signs of accepting responsibility for his conduct.

Application Note Three to Guideline 3E1.1 states: "A guilty plea may provide some evidence of the defendant's acceptance of responsibility. However, it does not, by itself, entitle a defendant to a reduced sentence under this section." Appropriate considerations in determining whether a defendant qualifies for provision 3E1.1 include, but are not limited to, the following:

(a) voluntary termination or withdrawal from criminal conduct or associations;

(b) voluntary payment of restitution prior to adjudication of guilt;

(c) voluntary and truthful admission to authorities of involvement in the offense and related conduct;

(d) voluntary surrender to authorities promptly after commission of the offense;

(e) voluntary assistance to authorities in the recovery of the fruits and instrumentalities of the offense;

(f) voluntary resignation from the office or position held during the commission of the offense; and

(g) the timeliness of the defendant's conduct in manifesting the acceptance of responsibility.

We find that although defendant eventually pled guilty, his actions prior to apprehension by the police do not demonstrate an acceptance of responsibility. Defendant did not voluntarily terminate or withdraw from criminal conduct (Guideline 3E1.1, Application Note 1(a)), or voluntarily and promptly surrender to authorities (Application Note 1(d)). Both the U.S. Secret Service and U.S. Marshals Service devoted substantial resources to the effort to locate and apprehend defendant. When he was arrested, defendant denied for over half an hour that he was William Luster. The lack of timeliness of defendant's acceptance of responsibility (Application Note 1(g)) weighs against the availability of a reduction for defendant.

Given these facts relied on by the district court, we believe its determination of the acceptance of responsibility issue is not clearly erroneous or without foundation and, therefore, it will not be disturbed.

III.

Defendant next argues that the criminal livelihood section of the sentencing guidelines is an unconstitutional violation of the equal protection clause.

The Criminal Livelihood Guideline, Section 4B1.3, provides:

If the defendant committed an offense as part of a pattern of criminal conduct from which he derived a substantial portion of his income, his offense level shall be not less than 13, unless Sec. 3E1.1 (Acceptance of Responsibility) applies, in which event his offense level shall be not less than 11.

Appellant argues that the Criminal Livelihood Guideline violates the equal protection clause because it is applied only when a substantial portion of a defendant's income is derived from a pattern of criminal activity. Because the guideline provides for a more severe punishment based on a percentage of income, an indigent defendant would receive a more severe sentence for $5000 worth of credit card fraud than would a defendant who earned, for example, $25,000.

The guidelines and Sentencing Reform Act of 1984 do not define the phrase "a substantial portion of his income." The legislative history of the Sentencing Reform Act states that Congress derived the category found in the criminal livelihood provision from the dangerous special offender provisions of 18 U.S.C. Sec. 3575(e) and dangerous special drug offender provisions of 21 U.S.C. Sec. 849(e). S.Rep. No. 225, 98th Cong., 1st Sess. 176, reprinted in 1984 U.S.Code Cong. & Admin.News, 3182, 3359. These statutes define a dangerous special offender as a defendant who committed a felony as part of a pattern of criminal conduct, "which constituted a substantial source of his income." A "substantial source" is an amount which exceeds the yearly minimum wage under the Fair Labor Standards Act, 29 U.S.C. Sec. 206(a)(1) (approximately $6,700), and which exceeds half of the defendant's declared adjusted gross income. 18 U.S.C. Sec. 3575(e); 21 U.S.C. Sec. 849(e). The government urges that we adopt this definition as the district court for the Western District of Pennsylvania did in United States v. Kerr, 686 F.Supp. 1174 (W.D.Pa.1988). The court stated:

Since we do not detect any Congressional intent to alter this definition and since we find that the definition's purpose of providing an explicit, convenient, and objective measure of proof to be wise, we adopt it as definitive of the "substantial portion" language within the guidelines.

Id. at 1178. ¹

The Kerr...