U.S. v. Rutledge

• Decision Date: 05 October 1994
• Docket Number: No. 93-10119,93-10119
• Citation: 28 F.3d 998
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas Lee RUTLEDGE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 998

28 F.3d 998

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Lee RUTLEDGE, Defendant-Appellant.

No. 93-10119.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 9, 1994.

Decided July 6, 1994.

As Amended on Denial of Rehearing and Rejection of

Suggestion for Rehearing En Banc Oct. 5, 1994.

Daniel J. Broderick, Asst. Federal Public Defender, Sacramento, CA, for defendant-appellant.

Eugene Illovsky, Asst. U.S. Atty., Sacramento, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before: POOLE, BEEZER, and T.G. NELSON, Circuit Judges.

Opinion by Judge T.G. NELSON.

T.G. NELSON, Circuit Judge:

I

OVERVIEW

Thomas Lee Rutledge (Rutledge) appeals his 120-month sentence after he pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1). He contends that the district court erred in: (1) refusing to grant a reduction in his offense level for acceptance of responsibility; (2) calculating his criminal history score; and (3) enhancing his base offense level for possession of a firearm in connection with an attempted robbery. We affirm.

II

BACKGROUND

On April 30, 1992, a federal grand jury for the Eastern District of California indicted Rutledge for being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1). Rutledge pled guilty to the charge. At the sentencing hearing on February 9, 1993, the district court heard testimony regarding the events of March 23, 1992.

On that day, Rutledge entered a Subway sandwich shop in South Lake Tahoe with a semi-automatic pistol in his pocket. He and Patricia Dement (now Rutledge's wife) had been on vacation in the area and were returning to Fresno when Rutledge pulled into the Subway parking lot. Because Rutledge had an upset stomach, they remained in the parking lot for 10 to 15 minutes while Rutledge drank antacid. Rutledge then entered the Subway store to get some water.

Two store clerks were working that day, Steven and Sergio. At the sentencing hearing, Steven testified that Rutledge entered the store and obtained a soda cup from him. When he returned to the counter to pay for the soda, Rutledge demanded that Steven give him "all your 20's, 10's, 5's and all your bills." Steven stated that Rutledge had a gun in his right hand when he made the demand for money. Sergio corroborated his co-worker's testimony. He overheard Rutledge demand the money in "5's, 10's and 20's," and he saw Rutledge holding a gun.

At the hearing, Rutledge's version was somewhat different. He insisted that he laid the gun on the counter without realizing it and that once he realized what he had done, he immediately covered the gun with his hand. Although Rutledge admitted that he knew he was committing a crime by carrying the gun, he denied attempting to rob the store.

These events were captured on videotape. The district court viewed the videotape several times and after considering all of the evidence presented, concluded that Rutledge had attempted to rob the store. Because the videotape did not conclusively resolve the dispute, the district court did not base its decision solely upon the tape. Rather, it relied upon the testimony of the witnesses, finding the store clerks' testimony credible. It specifically found that Rutledge's testimony was not credible.

The district court calculated Rutledge's base offense level at 24 and increased it four levels for possession of a firearm in connection with another felony offense. His criminal history category was VI, resulting in a sentencing range of 140-175 months. The district court sentenced Rutledge to 120 months in prison, the statutory maximum. Rutledge appeals that sentence.

III

STANDARD OF REVIEW

We review for clear error both the district court's factual findings underlying its sentencing decision, United States v. Chapnick, 963 F.2d 224, 226 (9th Cir.1992), and its determination to grant or deny the defendant an acceptance of responsibility reduction. United States v. Martinez-Gonzalez, 962 F.2d 874, 878 (9th Cir.1992). We accord great deference to the district court's evaluation

of the defendant's acceptance of responsibility. See U.S.S.G. Sec. 3E1.1, comment. (n. 5).

IV

DISCUSSION

A. Acceptance of Responsibility

The parties agree that the amended 1992 version of the Guidelines apply and that if Rutledge is entitled to a reduction for acceptance of responsibility, he should receive a three-level reduction under the amended U.S.S.G. Sec. 3E1.1. Rutledge contends that the district court erred in refusing to grant a reduction for acceptance of responsibility because it conditioned the refusal upon the fact that he denied possessing the gun during the commission of another felony, i.e., attempted robbery. He fully admitted the felony possession charge; however, he adamantly denied the attempted robbery allegation. Consequently, he argues, it violated his Fifth Amendment right against self-incrimination to deny the acceptance of responsibility reduction because he denied the attempted robbery conduct. We reject this argument.

Section 3E1.1(a) provides that a defendant is entitled to a two-level ¹ reduction if he "clearly demonstrates acceptance of responsibility for his offense." Sec. 3E1.1(a) (Nov.1992) (emphasis added). ² The amended Application Note 1(a) outlines the appropriate considerations for determining whether a defendant qualifies for the reduction:

truthfully admitting the conduct comprising the offense(s) of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which the defendant is accountable under Sec. 1B1.3 (Relevant Conduct). Note that a defendant is not required to volunteer, or affirmatively admit, relevant conduct beyond the offense of conviction in order to obtain a reduction under subsection (a). A defendant may remain silent in respect to relevant conduct beyond the offense of conviction without affecting his ability to obtain a reduction under this subsection. However, a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility.

U.S.S.G. Sec. 3E1.1, comment. (n. 1(a)) (Nov. 1992) (emphasis added). ³ The relevant conduct provision, Sec. 1B1.3, provides that the base offense level and specific offense characteristics shall be determined upon the basis of conduct that "occurred during the commission of the offense of conviction." See U.S.S.G. Sec. 1B1.3(a)(1) Nov. 1992).

Rutledge received a base offense level of 24 pursuant to Sec. 2K2.1(a)(2) because he had two prior felony convictions for crimes of violence. He then received a four-level increase for specific offense characteristics which occurred during the course of the offense. See Sec. 2K2.1(b)(5) (requiring four-level increase "[i]f the defendant used or possessed any firearm or ammunition in connection with another felony offense"). The district court concluded that this increase was appropriate because Rutledge possessed the gun in connection with the attempted robbery of the sandwich shop. Because Rutledge denied the attempted robbery conduct, the district court did not grant a reduction for acceptance of responsibility.

Rutledge contends that because he admitted the conduct comprising the offense of conviction, he should receive the reduction. In support of his argument, he relies upon United States v. Piper, 918 F.2d 839, 840 (9th Cir.1990). Piper did not reach the question posed here, and thus, contrary to Rutledge's insistence, Piper does not compel application of the acceptance of responsibility reduction in this case. In that decision, we held that conditioning an acceptance of responsibility reduction upon the defendant's admission of conduct for which he had not been convicted could violate his Fifth Amendment rights. Id. at 840. We stated that a defendant may be entitled to the reduction "without being required to confess to unproved, uncharged conduct." Id.

Relying upon the First Circuit's holding in United States v. Perez-Franco, 873 F.2d 455, 459 (1st Cir.1989) (finding district court erred in conditioning acceptance of responsibility on defendant's express acknowledgment of responsibility for conduct alleged in all counts of indictment, even dismissed counts), we concluded that "a defendant may controvert evidence of other criminal conduct at sentencing without thereby losing the reduction for acceptance of responsibility." Piper, 918 F.2d at 841. "To merit such a reduction, a defendant must show contrition for the crime of which he was convicted, but he need not accept blame for all crimes of which he may be accused." Id. However, the holdings in Piper and Perez-Franco are premised upon the fact that a defendant cannot be required to admit to uncharged conduct or to relinquish his Fifth Amendment right to silence in order to obtain sentencing benefits. Neither decision reaches the question of a defendant's false denials.

The First Circuit recently addressed the issue presented in this case. See United States v. Olea, 987 F.2d 874, 878 (1st Cir.1993). In Olea, the court held that Perez-Franco does not permit the acceptance reduction when a defendant lies about related conduct:

[T]he court's supported finding that appellant had lied when denying involvement in the two later sales took appellant well beyond the Perez-Franco safe harbor, which allows a defendant to remain silent as to the conduct contained in a dismissed charge but does not sanction a defendant's giving of materially false information relative thereto.

Id. (emphasis added). ⁴

We agree with the First Circuit's approach in Olea. The goals of the acceptance of responsibility provision would not be fulfilled if a defendant were eligible to receive the reduction even though he falsely denied relevant conduct. See Sec. 3E1.1, comment. (n. 1(a)) ("[A] defendan...