United States v. Felton

• Court: Court of Appeals for the Third Circuit
• Decided: May 22, 1995
• Docket: 94-5431
• Status: Unknown

Opinion

Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit

5-22-1995

United States v Felton Precedential or Non-Precedential:

Docket 94-5431

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Recommended Citation "United States v Felton" (1995). 1995 Decisions. Paper 138. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/138

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________________

No. 94-5431 _____________________

UNITED STATES OF AMERICA

v.

DENNIS FELTON Appellant _____________________

On Appeal from the United States District Court For the District of New Jersey (D.C. Crim. Action No. 93-cr-209) _____________________

Argued February 16, 1995

Before: STAPLETON and COWEN, Circuit Judges, and HUYETT, District Judge*

(Opinion Filed May 22, 1995 )

Chester M. Keller (argued) Assistant Federal Public Defender 972 Broad Street Newark, New Jersey 07102

Attorney for Appellant

Faith S. Hochberg United States Attorney Jayne K. Blumberg Alain Leibman (argued) Assistant United States Attorney 970 Broad Street Newark, New Jersey 07102

Attorney for Appellee

_____________________

* Honorable Daniel H. Huyett, 3rd, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. OPINION OF THE COURT _____________________

HUYETT, District Judge: Appellant Dennis Felton was a tax examining assistant

with the Automated Collection Service ("ACS") of the Internal

Revenue Service ("IRS"). He was responsible for, among other

things, contacting taxpayers with regard to collecting delinquent

income tax payments. Felton offered delinquent taxpayers the

opportunity to settle tax debts with the IRS for personal

payments to him. He was convicted of one count of demand and

acceptance of a bribe by a public official and five counts of

unlawful gratuity demanded and sought by a public official.

Felton appeals his sentence on three grounds. First,

Felton argues that the district court erred in adjusting his

offense level upward by two levels pursuant to United States

Sentencing Guideline section 3B1.1 for being a leader, organizer,

manager, or supervisor of a criminal activity. Second, he argues

that the district court erred in departing from the Sentencing

Guidelines to make a one-level upward adjustment. Third, he

argues that the district court made a mathematical error in its

computation of his offense level that caused it to find him

ineligible for a decrease in his offense level authorized by

section 3E1.1 of the Sentencing Guidelines. We agree with

Felton's third contention and vacate the district court's

judgment of sentence and remand for resentencing. I. Factual and Procedural Background In early September 1992, while working for the IRS,

Felton received a telephone call from a Colonia, New Jersey

taxpayer concerning approximately $22,000 she owed in taxes in

connection with her 1990 Form 1040. In response to her inquiry

as to whether she could be excused from penalties and interest on

the money she owed, Felton telephoned her and told her that if

she paid him, he would "take care of business." He arranged a

meeting at a mall in New Jersey, where he told her that in

exchange for a personal payment of $8,000, he would close the

collection action, abate all penalties and interest, and arrange

for the return of approximately $13,000 to her. Subsequently,

she contacted the IRS Office of the Regional Inspector concerning

this incident and participated in a controlled investigation. At

an October 6, 1992 meeting, the taxpayer paid Felton $2000 and

Felton told her that he wanted to receive the balance of the

bribe payment when she received the refund check. The ACS

received a return with falsified information, and in June 1993,

the taxpayer received a refund check for $24,805.44. Felton was

arrested on July 14, 1993 after he demanded and received the

remaining $6,000 payment.

On Felton's arrest, he advised the authorities that his

co-worker, Walter Clark, actually amended the return for the

taxpayer and that Clark was to share equally in the payments.

Felton needed Clark or some other person to participate in the

schemes because Felton is legally blind and cannot alter tax

returns alone. Following Felton's arrest, agents reviewed the

files Felton and Clark handled and investigated the five other frauds for which Felton was convicted. With Felton's

cooperation, the authorities investigated Clark's involvement in

the schemes and prosecuted him for his involvement in one fraud.

In the five incidents for which Felton was convicted of

demanding a gratuity, Felton sought payments to prepare tax

returns or resolve tax penalties or other tax problems. In some

instances, he offered to reduce their individual tax liabilities

and generate refunds in exchange for payments to him. In other

instances, he solicited taxpayers by offering to amend their

income tax returns and cause refunds to issue in exchange for

payments to him. In several instances, he demanded and took

money from taxpayers without performing services. In two frauds,

involving taxpayers from Englewood, New Jersey and Mount Holly,

New Jersey, Felton contacted taxpayers after they called the IRS

to resolve their tax problems. The Mount Holly taxpayers later

referred Felton as a tax adviser to their friends and relatives,

which led to frauds against taxpayers in Burlington Township, New

Jersey, Williamstown, New Jersey, and Budd Lake, New Jersey. The

Mount Holly, Burlington Township, Williamstown, and Budd Lake

taxpayers claimed that they did not know Felton was an IRS agent.

On April 22, 1994, Felton entered a guilty plea to an

information charging him with one count of "demand and acceptance

of bribe by public official," in violation of 18 U.S.C. §

201(b)(2), and five counts of "unlawful gratuity demanded and

sought by public official," in violation of 18 U.S.C. §

201(c)(1)(B). A sentencing hearing was held on July 11, 1994.

In the judgment, subsequently filed on July 20, 1994, the district court adopted the factual findings and Guideline

applications in the Presentence Investigation Report

("presentence report" or "PSR") except for three paragraphs.

App. 115 (Judgment, July 20, 1994). Thus, the record reviewed

includes the presentence report, the court's oral explanation of

its decision at the hearing, and the judgment order.

At the sentencing hearing, the district court

calculated a base offense level of ten, pursuant to section

2C1.1, "Offering, Giving, Soliciting, or Receiving a Bribe;

Extortion Under Color of Official Right." As recommended in the

presentence report, pursuant to subsection 3B1.1(c), the court

raised the offense level by two levels because Felton played an

aggravating role in the offense. The court also considered the

specific offense characteristics provisions of section 2C1.1(b).

First, the court adopted the probation office's calculation of a

$31,295.44 loss attributable to Felton and increased the offense

level by four levels because the aggregate harm exceeded $20,000,

pursuant to subsection 2C.1.1(b)(2). Second, the district court

rejected the probation officer's calculations and agreed with

Felton that although the Guidelines authorized a two-level

increase for multiple gratuities or multiple bribes, the

Guidelines did not authorize an increase when there was just one

bribe, but multiple gratuities. The court, however, used

Felton's argument to depart from the Guidelines to increase the

offense level by one level. Next, although the presentence

report recommended a three-level decrease for acceptance of

responsibility pursuant to section 3E1.1, the court granted only a two-level decrease. The court believed that by not imposing

the two-level increase for multiple bribes, the offense level

prior to the operation of subsection 3E1.1(a) was 15, and not 16

or greater, which would have permitted another decrease in

offense level for timely providing information concerning

involvement in offense or timely notifying authorities of his

intention to enter a plea of guilty. Finally, the district court

granted a one-level downward departure, following the

government's section 5K1.1 motion.

In summary, the district court's modification of the

presentence report yielded an offense level of 14. The following

calculation reflects the order in which the offense level should

be calculated, pursuant to the application instructions of

section 1B1.1: Base offense level, § 2C1.1(a) 10 Specific offense characteristics, § 2C1.1(b) More than one gratuity or bribe 0 Aggregate harm more than $20,000 + 4 Aggravating role in the offense, § 3B1.1(c) + 2 Acceptance of responsibility, § 3E1.1(a) - 2 Additional adjustment for acceptance of responsibility, § 3E1.1(b) 0 Upward Departure from § 2C1.1 + 1 Downward departure, § 5K1.1 - 1

Total Offense Level = 14

For an offense level of 14, the Guidelines prescribe a sentence

within the range of 15 to 21 months. USSG Ch. 5, Pt. A. The

district court sentenced Felton to 15 months on the bribery

charge and 15 months on each of the gratuities charges, each to

be served concurrently. II. Discussion We have appellate jurisdiction over this appeal from

the final decision of the district court pursuant to 28 U.S.C. §

1291. The district court had subject matter jurisdiction in this

criminal matter. See 18 U.S.C. § 3231. We review the district

court's factual findings in relation to sentencing issues for

clear error. United States v. Fields, 39 F.3d 439, 447 (3d Cir.

1994); United States v. Miele, 989 F.2d 659, 663 (3d Cir. 1993);

United States v. Belletiere, 971 F.2d 961, 964 (3d Cir. 1992). A

finding is clearly erroneous, if, after reviewing all of the

evidence, we are left with the firm conviction that a mistake has

been made. Belletiere, 971 F.2d at 969. Our review with respect

to the district court's application and interpretation of the

Sentencing Guidelines is plenary. Id. at 964; United States v.

Bogusz, 43 F.3d 82, 85 (3d Cir. 1994); United States v. Murillo,

933 F.2d 195, 197 (3d Cir. 1991). When the application of the

Guidelines presents a mixed question of law and fact, "our

standard and scope of review takes on greater scrutiny,

approaching de novo as the issue moves from one of strictly fact

to one of strictly law." Belletiere, 971 F.2d at 964 (quoting

Murillo, 933 F.2d at 198). A. Adjustment for Aggravating Role

We first address Felton's argument that the district

court's two-level increase for Felton's aggravating role in the

offense was in err. The pertinent portion of section 3B1.1 of

the Guidelines provides: Based on the defendant's role in the offense, increase the offense level as follows: . . . (c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.

USSG § 3B1.1.1 Section 3B1.1 requires the district court to find

that "the defendant exercised control over at least one other

person." United States v. Katora, 981 F.2d 1398, 1402 (3d Cir. 1992). See also USSG § 3B1.1, comment. (n.2) ("the defendant

must have been the organizer, leader, manager, or supervisor of

one or more other participants").

Felton takes issue with the district court's

determination that he was a leader in criminal activity. This

determination is essentially factual, therefore, we reverse the

district court only if its conclusion was clearly erroneous.

Fields, 39 F.3d at 447; United States v. Phillips, 959 F.2d 1187,

1191 (3d Cir.), cert. denied, ___ U.S. ___, 113 S. Ct. 497, 121

L. Ed. 2d 434 (1992); United States v. Ortiz, 878 F.2d 125, 127

(3d Cir. 1989).

The presentence report mentions Clark in connection

with three of the six incidents for which Felton was convicted,

although Clark was only charged with and convicted of one fraud.

Neither Felton nor the government objected to the facts as

presented by the probation office with regard to these three

incidents. With regard to the bribery concerning the Colonia

taxpayer, Felton offered to arrange the return of taxes she

1 . Subsections (a) and (b) concern situations where the defendant was a leader, organizer, manager, or supervisor of criminal activity that involved five or more participants or was otherwise extensive. already paid to the IRS for a personal payment to him, Felton

requested that the check be payable to him, and Felton requested

documentation relating to her mortgage, sale of her home, and her

profit sharing plan. Felton also scheduled meetings with her and

agreed to adjust her current and past tax returns, Felton told

the taxpayer how to make payments, and Felton personally accepted

$6,000 in cash from the taxpayer. Clark, along with Felton and

other Tax Examining Assistants, extended her account suspension.

Clark also amended the taxpayer's income tax return, received

$1,000 for this service, and Felton promised him another $3,000

after payment of the balance owed by her.

With respect to the Englewood taxpayer, Felton's first

contact with the taxpayer was through the IRS toll free telephone

number. Felton later contacted her to assist her with her tax

problems, Felton requested money in exchange for purported

services, and Felton received payments from this taxpayer. Clark

only attended meetings at her residence with Felton.

With respect to the Mount Holly taxpayers, after the

taxpayers had made numerous telephone contacts with IRS

representatives, Felton contacted them. He told them that he

could prepare and submit their income tax returns using

information they provided, Felton denied that any illegality was

involved, and Felton was paid by the taxpayers. According to the

presentence report, Clark met one of the taxpayers with Felton,

amended the tax return, and got some portion of the payment

received by Felton. The probation officer summarized their involvement and

offenses as follows: 26. Felton made all initial and subsequent contacts with the victim's [sic] of this offense. He made preliminary judgments as to feasibility of amending their returns, and made the arrangements to gather necessary information from the victims to be used in amending the returns. He solicited the assistance of Walter Clark, who was responsible for amending some or all of the returns, in exchange for payment by Felton, and presumably provided Clark with the information necessary for amendment. Pursuant to 3B1.1(c), Felton was the organizer of the offense.

27. Clark's role was in assistance to Felton, such as transporting Felton to meetings with the victims, and taking notes during the meetings. While Clark was responsible for actually amending the returns themselves, his assistance was solicited by Felton, by whom Clark was paid. Pursuant to 3B1.2(b), Clark was a minor participant in the offense.

PSR ¶¶ 26-27. Neither party specifically objected to these

paragraphs, although they both objected to the probation

officer's characterization of Felton as an organizer in other parts of the presentence report. The court, however, considered

Felton the leader, stating: There is no question that he should get the two point enhancement under 3B1.1(c). Mr. Felton's sentence should reflect his conduct without reference to whatever sentence Clark got and why. Under 3B1.1(c), Mr. Felton in my judgment was clearly the organizer, leader, manager of this criminal activity. He recruited Clark and, I suggest, others.

App. at 85 (Transcript). "When a person manages or supervises another in the

course of a criminal enterprise, the manager or supervisor will

normally be more culpable than the person managed or supervised."

United States v. Fuentes, 954 F.2d 151, 153 (3d Cir. 1992). "The

direction and control of others is a recurrent theme in legal

definitions of the terms 'manager' and 'supervisor.'" United

States v. King, 21 F.3d 1302, 1305 (3d Cir. 1994). The record

supporting the district court's conclusion that Felton was the

organizer, leader, manager, or supervisor is not extensive,

especially considering that at the sentencing, neither the

prosecution nor the defense thought the increase was appropriate.

However, several uncontested facts in the presentence report do

tend to support the district court's conclusion that Felton

played a supervisory role over Clark. First, Felton made all

initial contacts with the victims of the fraud. Second, Clark

performed much of the menial work of the scheme: he drove Felton

to meetings with the victims, he took notes during those

meetings, and he was given the responsibility of amending the

victims' tax returns. While Felton's blindness -- and inability

to perform these tasks -- no doubt diminishes the import of those

tasks to determining Clark's role, we think that they do evidence

the fact that Felton had at least some authority over Clark to

have Clark do his bidding. Finally, the fact that Felton was

involved in more incidents than Clark supports the district

court's conclusion that it was Felton's scheme to begin with and

that Felton "recruited Clark" to work for him. The evidence

concerning their individual roles in the offense was sufficient record evidence for the district court to conclude that Felton

was an organizer, leader, manager, or supervisor, even though

Clark did not participate in every scheme. The district court's

finding was not clearly erroneous.

B. Departure from the Guidelines

We next consider Felton's argument that the district

court erred in departing from the Sentencing Guidelines to adjust

his offense level upward by one level. Generally, the district

court must sentence a defendant within the applicable guideline

range. However, when "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 in formulating the guidelines that should result in a

sentence different from that described" the court may depart from

the guideline range. 18 U.S.C. § 3553(b). See also United

States v. Bertoli, 40 F.3d 1384, 1408 (3d Cir. 1994); United

States v. Kikumura, 918 F.2d 1084, 1098 (3d Cir. 1990).

We review the district court's decision according to

the model set forth in United States v. Kikumura, 918 F.2d 1084.

First, we determine whether the circumstances upon which the

district court relied to justify the departure were adequately

considered by the Sentencing Commission. This requires a two-

fold inquiry: we exercise plenary review over the district

court's determination that the Guidelines do not adequately take

a particular factor into consideration, Kikumura, 918 F.2d at 1098, and we apply a clearly erroneous standard of review to

determine whether the facts support the sentencing court's rationale. United States v. Seale, 20 F.3d 1279, 1287 (3d Cir.

1994); Kikumura, 918 F.2d at 1098. Second, we must determine

whether the sentence imposed was reasonable. This also demands a

two-fold inquiry: we consider whether the factors on which the

court relied were appropriate and whether the degree of departure

was appropriate. United States v. Ryan, 866 F.2d 604, 610 (3d

Cir. 1989). In this determination, we permit the district courts

to exercise a substantial amount of discretion. Bertoli, 40 F.3d

at 1408; Kikumura, 918 F.2d at 1098. We address each issue in

turn.

1. Adequate Consideration by the Sentencing Commission

We must first determine whether the Sentencing

Commission took adequate consideration of the aggravating

circumstance upon which the district court relied. In this case,

the factual basis for departure was not disputed. The district

court found that Felton accepted one bribe and five gratuities.

The district court reasoned that the magnitude of Felton's

schemes was an aggravating factor that the Sentencing Commission

did not adequately consider.

The district court is permitted to examine only the

Sentencing Guidelines, the policy statements, and the official

commentary of the Guidelines to determine whether the Sentencing

Commission adequately considered this aggravating factor. 18

U.S.C. § 3553(b); Kikumura, 918 F.2d at 1104.2

2 . To minimize confusion in the arguments Felton advances, we briefly explain the Guideline sections applied. The Sentencing Guidelines require the district court to group together all counts involving substantially the same harm. USSG § 3D1.2. The Section 2C1.1 requires a two-level increase in offense

level, "[i]f the offense involved more than one bribe or

extortion." USSG § 2C1.1(b)(1). Section 2C1.2, which would have

applied had their been no bribes, requires a two-level increase

"[i]f the offense involved more than one gratuity." USSG §

2C1.2(b)(1). The Guidelines, the policy statements, and the

official commentary of the Sentencing Commission do not mention

that an increase is available to raise the offense level for one

bribe and multiple gratuities. See § 2C1.1(b)(1).

The court's analysis of this issue was not extensive.

While making objections to the presentence report, Felton's

counsel argued that the Guidelines do not permit the court to

aggregate one bribe with multiple gratuities to increase the

offense level by two levels because then the gratuities would be

treated as bribes. The court appeared to accept this argument

and used this argument to justify its departure from the

Guidelines. An exchange concerning this issue was as follows: MR. KELLER: I'm saying that it's totally improper to start aggregating one bribe with certain gratuities and lump all these gratuities, all of a sudden to become bribes. . . .

THE COURT: Well, suppose I don't give him those two points. Look, at the rate you're going I'm going to have to give him a present. (..continued) counts of bribery and gratuities must be grouped together. § 3D1.2(d). Because these counts involve offenses of the same general type, the court must apply the offense guideline that produces the highest offense level. § 3D1.3(b). Because the bribery provision, § 2C1.1, produces a higher offense level than the gratuity provision, § 2C1.2, the bribery guideline is used. You know, I'm not going to buy this argument, though I'll tell you I am not going to not count five counts on which he accepted an illegal gratuity. So even if you're right on the law here, it would certainly be an appropriate ground for an upward departure. Right? You couldn't disagree with that.

MR. KELLER: Well --

THE COURT: Because this is conduct which would not otherwise be counted. So I mean I don't know, which way do you want me to go on that?

App. at 78-79 (Transcript). After a recess, the court explained

its departure from the Guidelines as follows: I am going to grant Mr. Keller's objection to the -- what is it, 2C1.1 bribery or extortion language. This is very complicated. I think I could make an argument that because one is referred under the gratuity statute to 2C1.1, and that language of bribery or extortion, that perhaps Mr. Keller's argument should be rejected. But I'm not clear enough on it to say. It is just too murky. So I'm going to take off those two points. That does not quite end the issue though. Because by taking off those two points, Mr. Felton is no longer eligible for the additional point on acceptance of responsibility. Because he's down into a -- what's it, a 15 instead of a 16. So all of that having been said, that's not to say Mr. Keller, because I told you I would, I'm going to give you the two points on that particular objection. But I will upward depart and I will upward depart one level to compensate for the one level that is being lost on the acceptance of responsibility, third point.

App. at 85-86 (emphasis added) (Transcript).

In the judgment order, the court explained its basis

for the upward departure as follows: Because one bribery and five gratuities were not aggregated to receive the 2 level increase under 2C1.1, the gratuities would not be punished absent an upward departure, a circumstance not adequately taken into consideration by the Commission.

App. at 114 (Judgment).

We reject Felton's argument that the multiple count

provisions, found in Chapter Three, Part D of the Sentencing

Guidelines, make clear that the Sentencing Commission considered

the impact of multiple count convictions on the sentencing

process and believed that certain offenses were so closely

intertwined that they should not receive any increase under the

Guidelines. As explained by the Sentencing Commission in its

introductory commentary to the multiple count provisions: Some offense guidelines, such as those for theft, fraud and drug offenses, contain provisions that deal with repetitive or ongoing behavior. Other guidelines, such as those for assault and robbery, are oriented more toward single episodes of criminal behavior. Accordingly, different rules are required for dealing with multiple-count convictions involving these two different general classes of offenses.

USSG Ch. 3, Pt. D, intro. comment. The Sentencing Commission

explicitly authorized a two-level increase in offense level for

multiple bribes in section 2C1.1 and a similar increase for

multiple unlawful gratuities in section 2C1.2. Thus, despite the

multiple count provisions, the Sentencing Commission approved an

increase in offense level for multiple bribes or gratuities, as

compared to single instances of a bribe or a gratuity. The Sentencing Commission authorized an increase in

offense level for six bribes or six gratuities, but not for a

combination of one bribe and five gratuities. The Sentencing

Guidelines, the commentary, and the background notes do not

indicate that the Sentencing Commission believed that this type

of repeated unlawful conduct involving a bribe and gratuities

should be treated less harshly than repeated unlawful conduct

involving only bribes or only gratuities. Thus, it appears that

the Sentencing Commission did not consider this result.

2. Reasonableness of the Adjustment

We also must consider whether the district court's

upward adjustment was reasonable. Kikumura, 918 F.2d at 1110.

Review is deferential. Id. at 1098. To determine whether the

sentence was reasonable, we consider the factors set forth in 18

U.S.C. § 3553(a) and the reasons for the imposition of the

particular sentence as stated by the district court, pursuant to

section 3553(c). 18 U.S.C. § 3742 (Review of a sentence);

Kikumura, 918 F.2d at 1098. We consider "whether the factors

relied on are appropriate; and whether the degree of departure

was appropriate." Kikumura, 918 F.2d at 1098 (internal

quotations omitted). "In order to be 'appropriate,' a factor

occasioning or contributing to an upward departure must be

relevant to the defendant's culpability." United States v.

Schweitzer, 5 F.3d 44, 48 (3d Cir. 1993).

The factors upon which the court relied were

appropriate. The fact that Felton accepted multiple gratuities

is relevant to his culpability because the Sentencing Guidelines already meted increased punishment for public officials who

accepted multiple bribes or multiple gratuities. To sentence

pursuant to the Guidelines would have been equivalent to

sentencing Felton for one bribe greater than $20,000 without

reflecting the multitude of gratuities demanded or accepted.

Furthermore, the degree of departure was appropriate. The

increase in the offense level was no greater than the increase

that would have been required for acceptance of two gratuities,

had there been no bribery charges. Thus, we find no error in the

court's upward departure.

C. Reduction for Acceptance of Responsibility

Finally, we consider Felton's argument that the

district court erred in its computation of his offense level,

which caused the district court to find him ineligible for a

third decrease in his offense level which was authorized by

section 3E1.1 of the Sentencing Guidelines. The district court

decreased Felton's offense level by two levels, pursuant to

subsection 3E1.1(a). Felton argues that he should have received

an additional one-level decrease pursuant to subsection 3E1.1(b).

Section 3E1.1 provides as follows: (a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.

(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and the defendant has assisted authorities in the investigation or prosecution of his own misconduct by taking one or more of the following steps: (1) timely providing complete information to the government concerning his own involvement in the offense; or (2) timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently, decrease the offense level by 1 additional level.

USSG § 3E1.1. The district court is particularly well suited to

evaluate a defendant's acceptance of responsibility. Therefore,

its determination can only be reversed if we find it was clearly

erroneous. United States v. Pardo, 25 F.3d 1187, 1193 (3d Cir.

1994).

Felton argues that the district court failed to grant

him a reduction of one level pursuant to subsection 3E1.1(b)

because it thought that he had an offense level of only 15

instead of 16. The transcript of the sentencing hearing and the

ensuing judgment support this argument. Prior to the operation

of subsection 1B1.1(a), Felton's offense level was sixteen, based

on a base offense level of ten, a four-level increase for loss

greater than $20,000, and a two-level increase for Felton's role

as organizer. The court, however, said with respect to this

issue: [B]y taking off those two points, Mr. Felton is no longer eligible for the additional point on acceptance of responsibility. Because he's down into a -- what's it, a 15 instead of a 16. So all of that having been said, that's not to say Mr. Keller, because I told you I would, I'm going to give you the two points on that particular objection. App. at 107 (Transcript). The court repeated this reasoning in

the judgment as follows: 2C1.1 states that if the offense involved more than one "bribe or extortion" increase by 2 levels. The offense here involved one bribe and five gratuities. Because it is unclear whether this aggregate behavior can receive the 2 level increase, the two level increase was deleted. As a result, the additional adjustment for acceptance of responsibility in paragraph 46 was deleted as well.

App. at 115 (Judgment). The court's explanation was clear

error.3 The government argues that Felton was not granted the

additional one-level reduction because the district court could

have made independent findings of fact that Felton failed to

assist authorities. The district court, however, never made any

such findings. The only evidence of Felton's failure to assist

that the government can find is an offhand remark by the

government's counsel that Felton embellished certain facts

surrounding the offense in the course of aiding the authorities. 3 . The government maintains that Felton never objected to the district court's refusal to give a three-level reduction and accordingly waived his right to appeal unless the mistake was plain error. United States v. Pollen, 978 F.2d 78, 88 (3d Cir. 1992) (sentencing disputes reviewed for plain error where defendant fails to object in the district court but finding that the miscalculation in that case was plain error), cert. denied, ___ U.S. ___, 113 S. Ct. 2332, 124 L. Ed.2d 244 (1993). Under a plain error standard, the court is concerned only with errors that seriously affect substantial rights or compromise the fairness of the proceedings. Id. This circuit and others have found that the miscalculation of a defendant's offense level "certainly is error that seriously affect[s] [the defendant's] rights, and so amounts to plain error." Id. at 90; United States v. Moss, 9 F.3d 543, 553 (6th Cir. 1993) (application of clearly incorrect base level offense deemed clear error); United States v. Plaza-Garza, 914 F.2d 345, 348 (1st Cir. 1990). The district court never referred to this comment, nor did it

explicitly find that Felton failed to assist. The district

court's reason for denying the third offense level decrease for

acceptance of responsibility was clear error. We remand the case

for resentencing on this issue. III. Conclusion

In summary, we hold that the district court's reason

for denying an additional decrease for acceptance of

responsibility was clear error. The court did not err, however,

in finding that Felton was a leader, organizer, manager, or

supervisor, nor did the court err in departing upward one level

in sentencing Felton. Accordingly, we will vacate the district

court's judgment and order of sentence and remand with

instructions for the district court to resentence Felton in

accord with this opinion.