United States v. Gilmore

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 24, 1998
• Docket: 97-6342
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS NOV 24 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-6342 (D.C. No. CR-97-56-T) ALLEN WAYNE GILMORE, (W.D. Okla.)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before PORFILIO , BARRETT , and KELLY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Defendant appellant Allen Wayne Gilmore pled guilty to one count of

conspiracy to commit offenses against the United States and one count of theft of

stolen mail. Defendant was sentenced to a term of twenty-four months’

imprisonment on each count to run concurrently, directed to make restitution, and

ordered to serve a term of supervised release. On appeal, defendant argues that

the district court erred in denying him an adjustment to his sentence for

acceptance of responsibility. We affirm.

Section 3E1.1 of the United States Sentencing Guidelines (Guidelines)

allows a district court to reduce a sentence where the defendant clearly

demonstrates that he has accepted responsibility for his criminal conduct. “The

district court has broad discretion to determine whether to award a sentence

reduction pursuant to §3E1.1 for acceptance of responsibility, and we will not

disturb its decision absent clearly erroneous findings.” United States v. Bindley ,

157 F.3d 1235, 1240 (10th Cir. 1998); see also United States v. Moudy , 132 F.3d

618, 621 (10th Cir. 1998) (holding § 3E1.1 determination entitled to great

deference on review). The defendant bears the burden of establishing entitlement

to the § 3E1.1 reduction, see United States v. Jaynes , 75 F.3d 1493, 1508 (10th

Cir. 1996), which is not automatically granted merely because he or she has

entered a guilty plea, see United States v. Gacnik , 50 F.3d 848, 853 (10th Cir.

1995).

-2- In denying defendant the requested reduction, the district court noted that,

after his arrest and release on bond, defendant was stopped for speeding. When

stolen checks related to the instant offense were found in the vehicle, defendant

denied knowledge of their presence. Defendant also traveled outside the Western

District of Oklahoma in violation of his bond conditions, and tested positive for

methamphetamine and marijuana, indicating drug use after his release on bond.

For these reasons, the district court denied the reduction for acceptance of

responsibility.

Among the factors suggested for consideration by a sentencing court in

deciding whether a defendant qualifies for a reduction for acceptance of

responsibility is whether the defendant has voluntarily terminated or withdrawn

from criminal conduct or associations. See Guidelines Manual § 3E1.1

application note 1(b). The weight of authority among the circuits which have

considered the question holds that any criminal conduct committed while a

defendant is free on bond is relevant in determining whether a defendant has

accepted responsibility. See United States v. Ceccarani , 98 F.3d 126, 129 (3d Cir.

1996) (collecting cases); but see United States v. Morrison , 983 F.2d 730, 735

(6th Cir. 1993) (holding that acceptance of responsibility considers only conduct

related to the charged offense). This circuit has affirmed the denial of a

downward adjustment for acceptance of responsibility where the defendant

-3- violated his appearance bond, see United States v. Hawley , 93 F.3d 682, 689

(10th Cir. 1996), and where the defendant had attempted escape, see United States

v. Amos , 984 F.2d 1067, 1073 (10th Cir. 1993). Based on evidence of

defendant’s conduct while free on bond, we find no error in the district court’s

decision to deny defendant a reduction based on acceptance of responsibility.

Defendant argues that the district court erred in not performing an

evaluation of all of the factors listed in the application notes when making its

sentencing decision. We find no authority requiring the district court to make

findings as to each of the suggested factors contained in the notes. As the

relevant application note states, “[t]he sentencing judge is in a unique position to

evaluate a defendant’s acceptance of responsibility. For this reason, the

determination of the sentencing judge is entitled to great deference on review.”

Guidelines Manual § 3E1.1 application note 5. Given this deferential standard

and the fact that the Guideline factors are suggestive only, we will not require a

sentencing judge to make findings regarding each factor listed in the application

notes to § 3E1.1.

-4- The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED.

Entered for the Court

James E. Barrett Senior Circuit Judge

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