USA. v. McIntosh, 98-4023

• Decision Date: 05 January 2000
• Docket Number: No. 98-4023,98-4023
• Citation: 198 F.3d 995
• Parties: (7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Carlton T. McIntosh, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 995

198 F.3d 995 (7th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Carlton T. McIntosh, Defendant-Appellant.

No. 98-4023

In the United States Court of Appeals For the Seventh Circuit

Argued May 21, 1999

Decided January 5, 2000

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 98 CR 36--David F. Hamilton, Judge. [Copyrighted Material Omitted]

Before Flaum, Kanne and Rovner, Circuit Judges.

Kanne, Circuit Judge.

Carlton McIntosh pleaded guilty to one count of money laundering. The district court sentenced him to seventy-eight months imprisonment and three years supervised release. While it imposed no fine, it did order him to pay restitution in the amount of $38,764.50. McIntosh believes the district court improperly calculated his sentence under the United States Sentencing Guidelines by denying him a downward departure for acceptance of responsibility, erroneously determining the amount of restitution and failing to consider his ability to pay restitution. We disagree and affirm the sentence.

I. History

In March 1997, McIntosh was serving a sentence for a bank fraud conviction out of the U.S. District Court in St. Louis. He was incarcerated at the federal prison facility in Duluth, Minnesota. Under the Interstate Agreement on Detainers, federal officials released McIntosh to the custody of the State of Illinois. After pleading guilty in state court to forgery and being sentenced to time served, he was inadvertently released from state custody and not returned to federal custody. McIntosh remained at large and did not voluntarily surrender himself to federal officials. Shortly after his mistaken release, McIntosh was charged with escape in U.S. District Court in Minnesota.

While attempting to evade capture, McIntosh opened three accounts with Bank One in Kenosha, Wisconsin. Two were in the name of "Irwin Hardis," and the third was in the name of "Hardis Investment Services." When establishing these accounts, he deposited checks into them drawn from accounts with either no money in them or accounts with insufficient funds. Then, he attempted to make withdrawals from the three new accounts. The largest single withdrawal appears to be a cashier's check provided to him by Bank One in the amount of $28,900.00 from the "Hardis Investment Services" account.

U.S. Marshals apprehended McIntosh in late April in Indianapolis. At the time of his arrest, he was driving a 1994 BMW that he had purchased with the Bank One cashier's check. They also recovered from him $1,558.54 in cash.

Before McIntosh returned to Minnesota to face the charges for escape, the government charged him in the Southern District of Indiana on April 30, 1997, with a two count criminal complaint alleging bank fraud and money laundering. An arrest warrant was issued based on the criminal complaint. Subsequently, the escape charge in Minnesota was dismissed, and on May 1, 1997, the arrest warrant issued in Indianapolis was executed. On May 30, 1997, the government filed a single-count information, charging McIntosh with bank fraud under 18 U.S.C. sec. 1344. For a period of ten months, plea negotiations ensued between McIntosh and the government, but ultimately McIntosh refused to enter into a plea agreement. With the breakdown in plea negotiations, a grand jury returned an indictment on March 3, 1998, charging McIntosh with one count of money laundering under 18 U.S.C. sec. 1957. On that same day, the government moved to dismiss the pending bank fraud information. That information was dismissed on March 16, 1998.

In response, McIntosh filed a motion to dismiss based on the Speedy Trial Act, alleging that it barred prosecution of the money laundering charge because the government failed to try McIntosh within seventy days of filing the charging information and that the indictment was returned ten months after his arrest. After holding an evidentiary hearing, the district court denied the motion, concluding that the bank fraud and money laundering charges were different and that the clock on the money laundering charge in the indictment did not begin to run with the bank fraud charge in the information. The district court concluded that the government had not exceeded the seventy-day limit with regard to the money laundering charge because the delay resulted from various extensions requested by McIntosh. The district court also found "no suggestion of bad faith on the part of the government," but rather that "the delay that did result was caused by protracted plea negotiations between the parties."

Five days before he was scheduled for trial, McIntosh requested to enter a plea of guilty without a plea agreement. The district court held an evidentiary hearing, during which it advised him of his rights and accepted his guilty plea. McIntosh subsequently filed pro se a request to dismiss his counsel and set aside his guilty plea. He contended that the government's indictment failed to allege a federal offense because it did not assert that the bank was federally insured. In addition to requesting that the district court dismiss the case with prejudice, he claimed his court-appointed counsel refused to act on this issue and requested new counsel. At sentencing, however, he withdrew the motion. In a separate motion, McIntosh objected to the Presentence Investigation Report ("PSI") because of its calculation of points under the United States Sentencing Guidelines ("U.S.S.G." or "Sentencing Guidelines") and its calculation of restitution. The district court sentenced him to serve seventy-eight months imprisonment and three years supervised release and to pay $38,764.50 in restitution to Bank One for its direct losses due to his criminal activity.

II. Analysis

McIntosh appeals his sentence and the assessment of restitution. First, he claims the district court erred when it denied him a two-level decrease under U.S.S.G. sec. 3E1.1(a) for acceptance of responsibility. Second, he contests the district court's order of restitution, contending that no evidence supports the amount Bank One lost, that he should be credited for the property the government confiscated when he was arrested, and that the court failed to consider his economic status when imposing the order.

A. Acceptance of Responsibility

McIntosh's first challenge to his sentencing involves the district court's denial of a two- level decrease in his base offense level for acceptance of responsibility in accordance with U.S.S.G. sec. 3E1.1(a). We review a district court's factual determination regarding acceptance of responsibility for clear error. See United States v. Jones, 52 F.3d 697, 700 (7th Cir. 1995). We will reverse the finding only if the record contains no evidence providing a foundation for it. See id. The district court is entitled to great deference in making these determinations because it is "in a unique position to evaluate a defendant's acceptance of responsibility." U.S.S.G. sec. 3E1.1 cmt. 5. "The question of whether a defendant has accepted responsibility for his crimes is a factual one, depending largely on credibility assessments of the sentencing judge." United States v. Rosalez- Cortez, 19 F.3d 1210, 1218 (7th Cir. 1994) (quoting United States v. Skinner, 986 F.2d 1091, 1100 (7th Cir. 1993)).

Under U.S.S.G. sec. 3E1.1(a), a district court may grant a defendant who "clearly demonstrates acceptance of responsibility for his offense [a] decrease [in] the offense level by 2 levels." The accompanying commentary explains that a district court may consider, but is not limited to, the truthfulness of the admission, the false or frivolous denial of additional relevant conduct, voluntary termination or withdrawal from the criminal conduct or association, voluntary payment of restitution prior to adjudication of guilt, voluntary surrender to authorities promptly after commission of the offense, voluntary assistance to authorities in recovering the fruits and instrumentalities of the offense, voluntary resignation from offices held during the offense, post-offense rehabilitation efforts, and timeliness of manifestation of acceptance of responsibility. See id. cmt. 1. Simply pleading guilty does not entitle a defendant to an automatic reduction. See id. at cmt. 2. The burden, however, rests with the defendant who enters a guilty plea to establish that he is entitled to a reduction. See United States v. Taylor, 72 F.3d 533, 549 (7th Cir. 1995), dismissal of post-conviction relief affirmed by 142 F.3d 440 (7th Cir. 1998).

In light of our deference to district courts, "[w]e have refrained from formulating categorical tests, preferring to leave it to the sentencing judges to apply common sense to the testimony they hear and the defendants they observe." United States v. Dvorak, 41 F.3d 1215, 1217 (7th Cir. 1994). When the district court considers this type of decrease, it should assess the defendant's "demonstration of 'genuine remorse,' or 'conscience.'" Id. "A judge may determine that a defendant has failed to accept responsibility by finding that he failed to demonstrate truthfulness and remorse prior to 'the final hour.'" Rosalez-Cortez, 19 F.3d at 1219 (quoting United States v. Osborne, 931 F.2d 1139, 1155 (7th Cir. 1991)). "A 'grudging and incomplete admission, accompanied by an excuse to minimize his own culpability, does not indicate acceptance of responsibility.'" Id. at 1220 (quoting United States v. Aquilla, 976 F.2d 1044, 1053 (7th Cir. 1992)).

The transcript of the sentencing hearing reflects the district court's reluctance to accept McIntosh's plea as indicative of true remorse. Specifically, the district court stated:

At this point I'm not persuaded that Mr. McIntosh has accepted responsibility for his conduct, given the developments in this case up to today, and I would be happy to hear anything [the defense] has to say on that subject. Ordinarily, someone who pleads...