U.S. v. Panadero, 92-2571

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: Before BAUER, KANNE and ROVNER; ILANA DIAMOND ROVNER
• Citation: U.S. v. Panadero, 7 F.3d 691 (7th Cir. 1993)
• Decision Date: 21 October 1993
• Docket Number: No. 92-2571,92-2571
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. K'Maryan PANADERO, Defendant-Appellant.

Page 691

7 F.3d 691

UNITED STATES of America, Plaintiff-Appellee, v. K'Maryan PANADERO, Defendant-Appellant.

No. 92-2571.

United States Court of Appeals Seventh Circuit.

Argued May 12, 1993.

Decided Oct. 21, 1993.

Barry R. Elden, Asst. U.S. Atty. and John J. Tharp, Jr. (argued), Office of the U.S. Atty., Cr. Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

Richard L. Kagan and Anthony M. Petrone (argued), Chicago, IL, for defendant-appellant.

Before BAUER, KANNE and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

After pleading guilty to three counts of bank fraud and one count of making false statements on a loan application, K'Maryan Panadero was sentenced under the Guidelines to 132 months of incarceration. She appeals her sentence on numerous grounds. Because we find several errors in the district court's calculations, we vacate Panadero's sentence and remand for resentencing.

I. Background

Between January 1986 and August 1991, K'Maryan Panadero stole nearly $2.4 million from several companies owned by Aaron Israel and his family, who employed her as a bookkeeper. Panadero forged the signatures of Israel and his son David on company checks made payable to two companies she operated (Travelworld International and Asiaworld Productions), various real and fictitious persons, credit card companies, and merchants. Panadero concealed the theft by making false entries into the books, depositing forged checks into the accounts from which she stole, altering bank statements, and destroying the forged checks when they had been canceled and returned. For concealment purposes alone, Panadero forged more than 200 checks worth over $4 million, but those checks did not result in any additional loss to the Israel family.

After being arrested for that offense and released on bond, Panadero continued her spree, this time defrauding or attempting to defraud several banks. She deposited checks written on overdrawn credit cards into the accounts of various businesses she operated and then wrote checks to herself on the insufficiently funded accounts. In this manner, she stole nearly $50,000 from the First Chicago Bank of Ravenswood and attempted to steal $14,000 from the Albany Bank and Trust Company.

During this same period, Panadero also submitted a falsified home mortgage application to Household Mortgage Services, a division of Household Bank. Panadero indicated that the loan of $87,800 was for her daughter Katrina when it was actually intended for Panadero's sister, whose own credit history disqualified her from receiving a loan. Panadero also falsely represented Katrina's income, submitted false 1988 and 1989 federal tax returns and W-2 forms in Katrina's name, and falsely "certified" that she had borrowed $10,000 from Katrina and would be repaying her within ten days.

The government charged Panadero by way of an information with three counts of bank fraud in violation of 18 U.S.C. § 1344 and one count of making false statements on a loan application in violation of 18 U.S.C. § 1014. Panadero waived indictment and pled guilty to all four counts.

The three bank fraud counts were grouped for sentencing purposes pursuant to Guidelines section 3D1.2(d). They were then considered under Guidelines section 2F1.1, which directed a base offense level of six (U.S.S.G. § 2F1.1(a)), to be increased by twelve levels to reflect the amount of money that Panadero had stolen (U.S.S.G. § 2F1.1(b)(1)(M)). That offense level was then increased by two levels for more than minimal planning (U.S.S.G. § 2F1.1(b)(2)), by three levels for committing two of the offenses while released on bond (U.S.S.G. § 2J1.7), and by two levels for abusing a position of private trust (U.S.S.G. § 3B1.3). The offense level for counts I, II, and III was therefore 25.

The false loan application count produced a base offense level of six (U.S.S.G. § 2F1.1(a)), which was increased by six levels to account for the potential loss of $87,000 (U.S.S.G. § 2F1.1(b)(1)(G)). Because the resulting offense level of 12 was more than nine levels below the offense level for the bank fraud group, it was disregarded pursuant to Guidelines section 3D1.4(c). The district court believed that the resulting adjusted offense level of 25 underrepresented the seriousness of Panadero's offense and departed upward by three levels, placing Panadero at level 28.

Panadero's criminal history included two state court convictions for forgery. On February 26, 1981, she was convicted after forging 236 checks worth $76,183 while working as a bookkeeper for the Institute of European Studies. She was sentenced to five years of probation and community service. Panadero violated her probation, however, when she again committed forgery and was arrested on September 14, 1982. This time, she had stolen approximately $80,000 from her employer, Midwest Products of Illinois, which went out of business due to the loss. After pleading guilty, Panadero was sentenced to six months of weekend imprisonment (a total of 52 days) and three years of probation, and was ordered to pay restitution of $2,367.97. The two state court sentences produced one criminal history point each under Guidelines section 4A1.1(c). Because Panadero's theft from the Israels, which occurred between January 1986 and August 1991, coincided with her state court probation term, she received two additional criminal history points under Guidelines section 4A1.1(d). The district court found that the resulting criminal history category of III underrepresented the seriousness of Panadero's criminal history and departed upward to category V. Panadero's sentencing range was thus 130-162 months. The district court sentenced her to 132 months, to be followed by 5 years of supervised release.

On appeal, Panadero argues that the district court erred by refusing to reduce her offense level for acceptance of responsibility, by increasing her offense level for more than minimal planning, and by departing upward from both the adjusted offense level and the criminal history category. We address her arguments in turn.

II. Acceptance of Responsibility

Guidelines section 3E1.1 provides that the district court may reduce a defendant's offense level by two if "the defendant clearly demonstrates a recognition and affirmative acceptance of responsibility for [her] criminal conduct." Panadero argues that she should have received the reduction because she not only pled guilty to the charges, but also freely provided potentially incriminating information to the government and the Israels (who had brought a civil action against her) regarding the fraudulent transactions.

Although pleading guilty may demonstrate acceptance of responsibility, doing so does not automatically entitle a defendant to the reduction. U.S.S.G. § 3E1.1, App. Note 3; United States v. Beserra, 967 F.2d 254, 255 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 419, 121 L.Ed.2d 341 (1992). Whether a defendant has accepted responsibility is a factual finding that depends primarily on credibility assessments. United States v. McKenzie, 922 F.2d 1323, 1329 (7th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 163, 116 L.Ed.2d 127 (1991). We will therefore overturn the sentencing court's determination only if it is clearly erroneous. United States v. Yanez, 985 F.2d 371, 374 (7th Cir.1993). Panadero bears the burden of demonstrating that the district court's finding was "without foundation." United States v. White, 993 F.2d 147, 151 (7th Cir.1993). She has failed to do so.

The district court rested its decision on two grounds. First, the court found that Panadero did not qualify for the reduction because she had continued to engage in criminal activity following her arrest. We approved this basis for denying the reduction in United States v. Franklin, 902 F.2d 501, 506 (7th Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 274, 112 L.Ed.2d 229 (1990). See also United States v. Jordan, 890 F.2d 968, 974 (7th Cir.1989). The district court clearly did not err here in finding that a defendant who had defrauded several banks while awaiting disposition of similar charges had not accepted responsibility for her criminal conduct.

The court also denied the reduction because it found Panadero's acceptance of responsibility to be insincere. Although Panadero contends that this finding was "simply stated, in essence, without more" (Panadero Brief at 17), the district court's finding was in fact well-reasoned, supported by the evidence, and consistent with the law of this Circuit. The court found that although Panadero had pled guilty, she "represent[ed] a paradigm case of someone who pleads guilty but does not accept personal responsibility for her own acts in the moral sense." (June 23, 1992 Tr. at 11.) The court believed that instead of expressing actual remorse, Panadero had accepted responsibility only in order to reduce her sentence. The court noted that Panadero had in the past committed similar crimes, pled guilty, received light sentences, and then resumed her criminal activity upon release. Denial of the reduction on this basis is consistent with our precedents that recognize the distinction between actual acceptance of responsibility and merely seeking to reduce one's sentence. See White, 993 F.2d at 151; Franklin, 902 F.2d at 505-06. The district court's refusal to grant the reduction was therefore appropriate.

III. More than Minimal Planning

Guidelines section 2F1.1(b)(2) requires the district court to increase the offense level by two in cases of fraud that involved "more than minimal planning." "We review a finding of 'more than minimal planning' for clear error, and reverse it only if we are left 'with a definite and firm conviction that a mistake has been committed.' " United States v. Moore, 991 F.2d 409, 412 (7th Cir.1993) (quoting United States v. Lennick, 917 F.2d 974, 979 (7th Cir.1990)).

Panadero argues that her conduct did not involve "more...