U.S. v. Osborne

• Decision Date: 04 November 1991
• Docket Number: No. 90-6597,90-6597
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward L. OSBORNE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 210

948 F.2d 210

UNITED STATES of America, Plaintiff-Appellee, v. Edward L. OSBORNE, Defendant-Appellant.

No. 90-6597.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 6, 1991.

Decided and Filed Nov. 4, 1991.

Joe B. Brown, U.S. Atty., William Cohen (Briefed), Robert C. Watson (Argued), Asst. U.S. Attys., Office of the U.S. Atty., Nashville, Tenn., for plaintiff-appellee.

Deborah S. Swettenam, Asst. Federal Public Defender (Argued & Briefed), Federal Public Defender's Office, Nashville, Tenn., for defendant-appellant.

Before MARTIN and NELSON, Circuit Judges, and WELLFORD, Senior Circuit Judge.

WELLFORD, Senior Circuit Judge.

Defendant, Edward L. Osborne, pleaded guilty to count two of an indictment charging him with knowingly executing a scheme to defraud a federally insured bank in Nashville, Tennessee. The plea was documented in a formal written agreement under Rule 11 of the Rules of Criminal Procedure, wherein defendant stated that his attorney advised him that the sentencing guidelines range in his case "should be from 21 to 27 months." He conceded that this was "simply [his] attorney's estimate," and he acknowledged that a probation officer would prepare a presentence report for the district court that would include his or her own estimation of a guidelines range. Defendant acknowledged further in the plea agreement that no one had "told me what sentence I will receive."

The appeal by Osborne relates to the correctness of his sentence of 57 months imprisonment, a $50 special assessment, and three years supervised release. The prosecution agreed to take no position on the issue of the two point downgrade for acceptance of responsibility, and recommended a sentence at the low end of the applicable guideline range. The presentence report recommended a downward adjustment for acceptance of responsibility and a 24 point criminal history determination, resulting in a proposed range of 27 to 33 months. The district court made an upward departure in effecting the 57 month sentence at issue.

Osborne arranged for two wire transfers of funds from the accounts of one Christopher A. Allen. When the money arrived, defendant went to the bank, falsely identified himself as Christopher Allen, and appropriated the funds. Osborne also used credit cards of Christopher Allen, making substantial charges for his own benefit. Also, using Allen's identity, defendant purchased a Nissan pickup truck, worth about $12,000. Upon discovering that the sale had been fraudulent, the dealer notified the police, and the defendant was thereafter arrested.

Defendant had obtained personal data on Christopher A. Allen, including his birth date, social security number, Tennessee driver's license number, place of employment, and bank name. He then obtained a Louisiana driver's license bearing Allen's name, but containing defendant's photograph. Following his arrest, Osborne admitted to a federal agent that he had used the identity of Allen and had made the endorsements as Allen on the documents involved in this case.

I. ACCEPTANCE OF RESPONSIBILITY

Defendant maintains that because the 1990 sentencing guideline application Notes have deleted the phrase "should not be disturbed unless it is without foundation" from a Note addressing the appellate court's standard of review, we now have greater leeway in reviewing a determination of acceptance of responsibility. We are not persuaded.

It has heretofore been settled that appellate review of the sentencing guidelines' factfinding is governed by the clearly erroneous standard. The guidelines in effect at the time of a criminal's conviction are applicable, see 18 U.S.C. § 3553(a)(5), but we are satisfied that the standard of review has not changed by this minor alteration in the application Notes. 18 U.S.C. § 3742(e) (1991) states in pertinent 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 and shall give due deference to the district court's application of the guidelines to these facts.

Defendant challenges the district court's finding that he did not accept responsibility under the guidelines; we will not overturn this factual determination in the sentencing process unless its finding was clearly erroneous.

The district court considers:

(5) any pertinent policy statement issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a)(2) that is in effect on the date the defendant is sentenced; ....

18 U.S.C. § 3553(a)(5) (1991) (emphasis added). Defendant was sentenced on December 5, 1990. The 1990 Guidelines, therefore, are applicable in this case.

U.S.S.G. § 3E1.1 provides:

(a) If the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct, reduce the offense level by 2 levels.

....

(c) A defendant who enters a guilty plea is not entitled to a sentencing reduction under this section as a matter of right.

(Emphasis added). The sentencing court may also consider:

(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 activities of involvement in the offense and related conduct;

(d) voluntary surrender ...;

....

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

Application Note 1 (emphasis added). Since "[t]he sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility ... the determination of the sentencing judge is entitled to great deference on review." Application Note 5. The guidelines also state:

Entry 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 for purposes of this section. However, this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility.

Application Note 3. Defendant argues that his guilty plea, his oral admission of guilt to be a federal agent, and his written statement to his probation officer should not be deemed to be outweighed by factors relied upon by the district court. We conclude, however, that the district court's finding was not clearly erroneous, and we AFFIRM the acceptance of responsibility determination.

The district court based its finding on this issue on the following factors:

(1) his entire criminal history indicates no acceptance of responsibility;

(2) the typewritten statement filed with the probation officer by Osborne was not signed by defendant;

(3) defendant did not voluntarily admit his guilt;

(4) he did not try to make restitution;

(5) Osborne showed no real sign of "changing his ways."

In addition, the district court was aware that defendant was on probation for passing worthless checks at the time of the indictment offenses, and that his significant history reflected Osborne to be a "con man."

II. DEPARTURE

The district court departed in this case because it was convinced that the category in which Osborne's criminal history was placed failed significantly to reflect the seriousness of the defendant's extensive past criminal conduct and the likelihood that the defendant would commit further crimes. It found that the criminal history score applicable to defendant was 24, placing defendant in category VI, which applies to criminal history scores of 13 points or more. The district court determined that because the criminal history score of 24 was so high, category VI did not adequately reflect the seriousness of defendant's persistent criminal history as a "con man." The court then noted that each criminal history category after category II contained three criminal history category points and that, similarly, category VI and all categories above category VI would also contain a spread of 3 criminal history points. Using this analysis, the district court determined that the defendant's 24 criminal history points should be considered to fall into a hypothetical category IX (bringing about a 3 level increase in the defendant's criminal history range). This analysis resulted in an offense level of 16, a criminal history category of VI, or a guideline range of 46-57 months. Based on this rationale, Judge Morton sentenced the defendant to the high limit of 57 months incarceration.

Defendant does not essentially challenge the district court's decision to make an upward departure from the guidelines in determining his sentence. Rather, he argues that the court improperly calculated the sentencing range. This improper calculation, defendant argues, resulted in a sentence that is excessive and unreasonable under the guidelines structure. Defendant argues that the Sentencing Commission intended courts to increase offense levels, rather than criminal history categories, moving vertically on the table instead of horizontally. He asserts that the guidelines structure "seems to indicate" that the Commission intended that the seriousness of an offense, as defined by the offense level, would carry more weight in increasing a defendant's sentence.

Congress has authorized departures from the sentencing ranges announced in the guidelines only where "the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission." 18 U.S.C. § 3553(b). See United States v. Brewer, 899 F.2d 503 (6th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 127, 112 L.Ed.2d 95 (1990). In United States v. Joan, 883 F.2d 491 (6th Cir.1989), this court adopted a three part test in determining whether an upward departure is warranted. First, the court reviews as a question of law the...