United States v. Mercer

22 F. App'x 415
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 3, 2001
DocketNo. 00-1087, 00-1178
StatusPublished
Cited by2 cases

This text of 22 F. App'x 415 (United States v. Mercer) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Mercer, 22 F. App'x 415 (6th Cir. 2001).

Opinion

KENNEDY, Circuit Judge.

Defendant Thomas Mercer was charged in a third superceding indictment with multiple counts of mail fraud, 18 U.S.C. § 1341, false statements to a bank, 18 U.S.C. § 1014, deceptive use of a social security number, 42 U.S.C. § 408(a)(7)(B), and conspiracy, 18 U.S.C. § 371. Defendant pleaded guilty to two mail fraud counts pursuant to a second modified Rule 11 plea agreement. (J.A. 135.) The district court sentenced defendant to sixty-five months in prison. Defendant appealed, alleging six sentencing errors committed by the district court. The government cross-appealed, alleging that the district court erred in failing to impose a three level sentence enhancement for committing an offense while on release. For the reasons stated below, we hold that the district court did not err on any of the grounds put forth by defendant. We remand, however, for the district court to consider an enhancement under U.S.S.G. § 2J1.7.

I.

Defendant was engaged in an insurance fraud scheme, primarily involving false disability insurance claims, beginning in 1991. Defendant filed multiple false claims with automobile insurance companies or with companies that had enrolled defendant and others under individual or group disability policies. In particular, defendant reported lost income due to fully disabling injuries.

Defendant was originally indicted on January 22, 1998 on nine counts of mail fraud and false representation of a social security number. (J.A. 47.) On January 19, 1999, a third superceding indictment containing twenty-four counts was issued against defendant. Ultimately, defendant pleaded guilty pursuant to a Rule 11 agreement to counts two and eleven, for mail fraud in violation of 18 U.S.C. § 1341. The remaining counts of the indictment were dismissed.

Under the original plea agreement, defendant stipulated that the loss involved exceeded $350,000, that the offense involved multiple victims and more than minimal planning, that he should receive a three level enhancement under U.S.S.G. § 2J1.7 for committing an offense while on release, and that he should receive a two level increase for an aggravating role. He reserved the right to request a reduction for acceptance of responsibility and to contest an increase for obstruction of justice. The parties agreed to a criminal history category of IV. The maximum sentence under the agreement was eighty-eight months. (J.A. 135.)

Defendant then filed pro se motions to withdraw his plea and replace his appointed attorney. (J.A. 166, 168.) Replacement counsel was appointed but defendant ultimately decided to continue with the guilty plea. The parties then negotiated modifications to the plea agreement. The supplemental agreement provided that defendant would raise only the following issues at sentencing: acceptance of responsibility and obstruction of justice guideline reductions, whether the “offense on release” provision applied to defendant, whether the amount of a particular bank loan qualified as a “loss” under the guidelines, and whether he should receive any sentencing points for an “operating while impaired” conviction that the probation officer included in the calculation of his criminal history category. The plea agreement provision provided that, “defendant agrees not to raise any issue on direct appeal or collateral attack other than those identified in paragraph 4.” (J.A. 174.)

II.

This court reviews a district court’s interpretation and application of the Sen[418]*418tencing Guidelines de novo. United States v. Adu, 82 F.3d 119, 124 (6th Cir.1996). This court reviews a district court’s factual determination as to whether a guideline applies in a particular case under a clearly erroneous standard. Id.

A.

Defendant first claims that the district court erred in not awarding a two point sentencing level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1 when defendant pleaded guilty on the morning of trial and admitted his involvement in the alleged crimes. Defendant is not entitled to a departure for acceptance of responsibility simply because he pleaded guilty. A defendant seeking this departure must demonstrate why it is appropriate in his particular case. United States v. Wolfe, 71 F.3d 611, 616 (6th Cir. 1995). “Whether or not a defendant has accepted responsibility for his crime is a factual question. The district court’s determination of that question ... enjoys the protection of the ‘clearly erroneous’ standard.” United States v. Wilson, 878 F.2d 921, 923 (6th Cir.1989). Application note 5 to U.S.S.G. § 3E1.1 states that, “[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 and should not be disturbed unless it is without foundation.” WTiether defendant sufficiently demonstrated acceptance of responsibility for his offenses is an inherently factual question best determined by the district court. The district court did not commit clear error in declining to grant a two point reduction for acceptance of responsibility.

B.

Defendant next alleges that the district court erred in applying a two point sentencing enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1. The district court applied the obstruction of justice enhancement as a result of defendant’s failure to comply with an order revoking defendant’s bond. United States District Judge Robert DeMascio issued the order on September 14, 1998 based on information that defendant had committed new offenses while on bond. Defendant admits that his pretrial services officer informed him over the phone on either September 14 or 15 that he was required to turn himself in the following day. (J.A. 271, 277.) Defendant’s trial was scheduled to begin on September 28, 1998. On September 25, defendant’s counsel requested an adjournment because he had not had any contact with defendant and could not prepare the defense without him. Mercer ultimately surrendered to the court on September 28.

Defendant concedes that he knew that he was obliged to turn himself. His failure to do so resulted in the delay of his scheduled trial. This circuit has held on previous occasions that jumping bond and failing to report to a probation officer may be grounds for an obstruction of justice enhancement. United States v. Perry, 908 F.2d 56, 59 (6th Cir.1990). This circuit has stated that, “[bjecause [defendant] defied a judicial order, his flight constituted obstruction of justice within the meaning of the guidelines.” United States v. Oleson, 44 F.3d 381, 386 (6th Cir.1995).

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22 F. App'x 415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mercer-ca6-2001.