UNITED STATES of America, Plaintiff-Appellee, v. Charles CONNELLY, Defendant-Appellant

156 F.3d 978, 98 Cal. Daily Op. Serv. 7284, 98 Daily Journal DAR 10090, 1998 U.S. App. LEXIS 22688, 1998 WL 638026
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 18, 1998
Docket97-30233
StatusPublished
Cited by44 cases

This text of 156 F.3d 978 (UNITED STATES of America, Plaintiff-Appellee, v. Charles CONNELLY, Defendant-Appellant) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
UNITED STATES of America, Plaintiff-Appellee, v. Charles CONNELLY, Defendant-Appellant, 156 F.3d 978, 98 Cal. Daily Op. Serv. 7284, 98 Daily Journal DAR 10090, 1998 U.S. App. LEXIS 22688, 1998 WL 638026 (9th Cir. 1998).

Opinions

REED, District Judge:

Charles Connelly (hereinafter, “Defendant”) pled guilty on separate occasions in 1997 to one count of bank fraud under 18 U.S.C. § 1344 and one count of credit card fraud under 18 U.S.C. § 1029(a)(2). Departing upward, and denying a requested downward adjustment for acceptance of responsibility, the district court sentenced him to 60 months for each charge, to be served concurrently. He now challenges his sentence. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

FACTS

In January 1996 Defendant approached an acquaintance, Richard Husarick, in the state of Ohio and falsely represented to him that he was a loan officer with a local bank. Persuading Mr. Husarick that he would help him consolidate his loans and obtain a line of credit, Defendant acquired an American Express card in Mr. Husarick’s name. He subsequently incurred $22,274.14 in unauthorized charges.

In August 1996, after representing to Nor-west Bank in Bozeman, Montana that he was an heir to the Pittsburgh Glass Company fortune, Defendant opened a savings account and deposited two checks totalling $16,500. A few days later he opened a checking account at the same Norwest Bank branch and deposited two checks totaling $21,500. All four checks were written on fraudulently established accounts and were dishonored. On August 13,1996 Defendant attempted to cash a cheek for $12,500 at the Norwest Bank branch in Billings, Montana; the teller alerted the police and Defendant was arrested. Between his first deposit and his arrest Defendant withdrew $12,169.80 from the Nor-west accounts.

PROCEEDINGS BELOW

Defendant pled guilty to the Montana bank fraud charge on January 21,1997. Pursuant to Fed.R.Crim.P. 20, he pled guilty in federal district court in Montana to the Ohio, credit card fraud charge on July 18, 1997. At that time he was sentenced to terms of 60 months for each charge, to run concurrently, followed by five years of supervised release. The district court denied a requested two-level downward adjustment for acceptance of responsibility, based largely on the court’s observations at sentencing.

Additionally, the court departed upward on the ground that Defendant’s criminal history category did not “adequately reflect the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3. Specifically, in 1990 Defendant pled guilty in Ohio state court to three counts of theft, for which he received three concurrent sentences of 18 months. Because the convictions were consolidated for sentencing, they were “related” under U.S.S.G. § 4A1.2 and were therefore counted as one sentence of 18 months, resulting in three criminal history points; had he been sentenced separately on each count, he would have received six more criminal history points. United States v. Smith, 991 F.2d 1468, 1473 (9th Cir.1993) (citing U.S.S.G. § 4A1.2). Second, in 1993 Defendant pled guilty in Ohio state court to one count of attempted receipt of stolen property and one count of forgery, for which he was sentenced to three years’ probation in a consolidated sentencing proceeding. This sentence resulted in one criminal history point; [982]*982had the two convictions not been consolidated for sentencing, he would have received one additional point. The district court departed upward in criminal history by seven points, six points for the 1990 guilty pleas and one point for the 1993 guilty plea, resulting in a criminal history score of 16 and a criminal history category of VI.

Defendant now challenges the denial of the acceptance of responsibility adjustment and the upward departure.

DISCUSSION

I. Standard of Review

A district court’s decision to adjust a defendant’s sentence based on acceptance of responsibility is a factual determination reviewed for clear error. United States v. Villasenor-Cesar, 114 F.3d 970, 973 (9th Cir.1997). A district court’s decision to depart from the Sentencing Guidelines range is reviewed for abuse of discretion. United States v. Sablan, 114 F.3d 913, 916 (9th Cir.1997) (en banc), cert. denied, — U.S. -, 118 S.Ct. 851, 139 L.Ed.2d 752 (1998). This standard also applies where the court departs from a criminal history category. United States v. Goshea, 94 F.3d 1361, 1363 (9th Cir.1996). Although a district court abuses its discretion when it makes an error of law, our abuse of discretion standard includes review to determine whether the district court’s discretion was guided by erroneous legal conclusions. United States v. Koon, 518 U.S. 81, 116 S.Ct. 2035, 2047-48, 135 L.Ed.2d 392 (1996).

II. Acceptance of Responsibility

“If the defendant clearly demonstrates acceptance of responsibility” for his offense, then he qualifies for, in this case, a two-level downward adjustment in offense level. U.S.S.G. § 3El.l(a). Although pleading guilty and truthfully admitting the offense conduct constitute “significant evidence of acceptance of responsibility,” this evidence may be outweighed by conduct inconsistent with such acceptance of responsibility. U.S.S.G. § 3E1.1, App. note 3; United States v. Vance, 62 F.3d 1152, 1159 (9th Cir.1995). In particular, a failure to demonstrate contrition and remorse weighs against a finding of acceptance of responsibility, because “implicit in acceptance of responsibility is an admission of moral wrongdoing,” as Defendant concedes. United States v. Gallant, 136 F.3d 1246, 1248 (9th Cir.1998); see United States v. Davis, 36 F.3d 1424, 1435-36 (9th Cir.1994) (under pre-1992 version of § 3E1.1, affirmative evidence of contrition warrants adjustment), cert. denied sub nom., Williams v. U.S., 513 U.S. 1171, 115 S.Ct. 1147, 130 L.Ed.2d 1106 (1995). Lying about offense conduct or relevant conduct also weighs against acceptance of responsibility. Vance, 62 F.3d at 1160.

The district court denied the adjustment because Defendant “clearly stated ... that it’s always somebody else’s fault ... [and] laid out a pretty good story about what appeared to be a Robin Hood theory of what he was doing.” This holding is not clearly erroneous. Regarding the Montana bank fraud count, Defendant asserted at sentencing:

I went to Norwest Bank in Bozeman and I opened an account with a check that wasn’t good from a brokerage company that I got from New York to buy food and housing and HIV medication.

Defendant may have at one time thought he was HIV-positive; however, in his allocution he acknowledged that he is not.

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156 F.3d 978, 98 Cal. Daily Op. Serv. 7284, 98 Daily Journal DAR 10090, 1998 U.S. App. LEXIS 22688, 1998 WL 638026, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-of-america-plaintiff-appellee-v-charles-connelly-ca9-1998.