United States v. Roberson

11 F. App'x 462
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 26, 2001
DocketNo. 99-2407
StatusPublished
Cited by1 cases

This text of 11 F. App'x 462 (United States v. Roberson) 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. Roberson, 11 F. App'x 462 (6th Cir. 2001).

Opinion

OPINION

HEYBURN, District Judge.

Defendant, Roger Roberson, pleaded guilty to bank fraud in violation of 18 U.S.C. § 1344. At sentencing, the district court denied Roberson a two point reduction in his offense level for acceptance of responsibility under U.S.S.G. § 3E1.1 and adjusted his offense level upward three points for his supervisory role in the offense under U.S.S.G. § 3Bl.l(b). Roberson now appeals, arguing that the district court should have granted the reduction for acceptance of responsibility and should not have increased his offense level for a supervisory role. We AFFIRM the district court on both counts.

I

Roberson began participating in a bank-fraud scheme in late 1998 that involved cashing checks made payable to fictitious payees. Ivan Spears, the leader of the scheme, encouraged Roberson to recruit crack addicts who, under Roberson’s tutelage, and using forged identification, would pass the bad checks at federally insured financial institutions.. Roberson would drive them to the financial institutions, provide them with the checks, collect the proceeds, pay the check-eashers, and turn the remaining proceeds over to Spears. Spears paid Roberson in cash or crack cocaine. In addition, Roberson also [464]*464cashed four bad checks himself. In his plea agreement, Roberson took responsibility for $9,735 obtained through fraudulent checks.

A federal grand jury indicted Roberson for conspiracy to commit bank fraud and two counts of bank fraud. After arraignment on June 28, 1999, Roberson was released on bond on condition that he refrain from using illegal drugs. A July 15, 1999 drug test came back positive for cocaine, as did a second drug test taken on July 29, 1999. The government began bond revocation proceedings and the magistrate judge revoked Roberson’s bond on August 13, 1999. On August 30, 1999, Roberson pled guilty to one count of bank fraud under 18 U.S.C. § 1344. The district court sentenced Roberson on November 23, 1999 to twenty-one months of imprisonment and three years of supervised release. Roberson’s sentencing range was calculated at fifteen to twenty-one months based on a criminal history category of II and a total offense level of thirteen. The offense level included a three point upward adjustment for his supervisory role in the bank fraud and did not contain a two point reduction for acceptance of responsibility.

II

We generally review a district court’s finding that a defendant is not entitled to a reduction for acceptance of responsibility under the “clearly erroneous” standard. United States v. Childers, 86 F.3d 562, 563 (6th Cir.1996). Where, however, the only question concerns whether the reduction should apply to uncontested facts, we review de novo. United States v. Tilford, 224 F.3d 865, 867 (6th Cir.2000). If this case presented a purely legal question— can the post-indictment, pre-guilty plea use of cocaine in violation of bond conditions serve as the basis for refusal to grant a downward departure for a bank fraud conviction — then the district court’s decision would be reviewed de novo. See id. Here, however, at the sentencing hearing the district court also found that Roberson did not show remorse for his behavior and described Roberson as “an individual who just avoids looking at himself and what he’s done for the last 47 years.” J.A. at 55. Since the district court based its sentencing decision on both the cocaine use and the general lack of acceptance of responsibility, we must review the district court’s decision for clear error.

Ill

Section 3El.l(a) of the Sentencing Guidelines allows for a two-level reduction in a sentence if the defendant “clearly demonstrates acceptance of responsibility for his offense.” The defendant must show acceptance of responsibility by a preponderance of the evidence. See United States v. Williams, 990 F.2d 176, 181 (6th Cir.1991). This reduction is not available as a matter of right. See U.S.S.G. § 3E1.1 cmt. n. 3.

Commentary to the Sentencing Guidelines identifies “voluntary termination or withdrawal from criminal conduct or associations” as an appropriate consideration for the sentencing court to use in determining whether a defendant qualifies for a reduction. U.S.S.G. § 3E1.1 cmt. n. 1(b). Roberson argues that the unrelated nature and timing of his bond violation preclude its consideration in the determination of eligibility for the acceptance of responsibility reduction. Both claims fail as a matter of law.

In United States v. Morrison, 983 F.2d 730 (6th Cir.1993), this circuit described the type of criminal conduct that the district court should consider in its review of defendant’s acceptance of responsibility. The Morrison court held that the criminal conduct referenced in commentary note 1(b) included all criminal conduct “related to the underlying of[465]*465fense.” Id. at 735. Related conduct includes, among other types, conduct that is “the motivating force behind the underlying offense” or involves “an otherwise strong link with the underlying offense.” Id. Here, a strong nexus connected the bank fraud and the use of cocaine. Roberson was an admitted frequent crack user and participated in the bank fraud in order to finance his drug addiction. Therefore, the drug use motivated his participation in the bank fraud, making the drug use related conduct and consideration of the drug use was proper under Morrison.

Roberson also argues that the timing of the drug use — one month prior to his plea and four months before sentencing — renders it irrelevant in determining his acceptance of responsibility. District courts have broad discretion in determining when conduct becomes relevant for determining acceptance of responsibility. However, they cannot consider conduct before the defendant is “on notice that the federal government has an interest in his or her affairs.” United States v. Jeter, 191 F.3d 637, 639-40 (6th Cir.1999). Here, the magistrate judge arraigned Roberson more than two weeks prior to his first failed drug test and conditioned his release on Roberson’s discontinuing the use of any illegal drugs. Roberson, undoubtedly, was on notice of the federal government’s interest in his drug use and the district court therefore had discretion to consider the conduct even though it occurred prior to the plea agreement or sentencing. The district judge did not use any inappropriate factors in making his decision to deny Defendant acceptance of responsibility credit and, therefore, his decision should be affirmed.

IV

Finally, Roberson challenges the district court’s finding that he played a supervisory role in the offense.

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Bluebook (online)
11 F. App'x 462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-roberson-ca6-2001.