United States v. Zanni

Opinion

USCA1 Opinion

                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


____________________



        No. 95-1126



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                  BENJAMIN R. ZANNI,



                                Defendant, Appellant.


____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                        FOR THE DISTRICT OF RHODE ISLAND



                       [Hon. Mary M. Lisi, U.S. District Judge]
                                           ___________________



                                 ____________________



                                        Before



                                Cyr, Boudin and Lynch,

                                   Circuit Judges.
                                   ______________



                                 ____________________



            Edward J. Romano and Joel D. Landry II on brief for appellant.
            ________________     _________________

            Sheldon Whitehouse,  United States  Attorney, and  Edwin J.  Gale,
            __________________                                 ______________

        Assistant United States Attorney, on brief for appellee.


____________________



                                   August 18, 1995

                                 ____________________



Per  Curiam.    Defendant-appellant  Benjamin  R.  Zanni
                 ___________



            appeals his sentence on  two grounds.  First, he  argues that



            the district court  erred in  failing to award  him a  three-



            level credit  for acceptance of responsibility  pursuant to  



            3E1.1   of   the   United   States    Sentencing   Guidelines



            ("U.S.S.G.").    Second,  he  contends  that  the  government



            breached the plea agreement by recommending a sentence at the



            high end of the guideline sentencing range.



                I. Acceptance of Responsibility
                   ____________________________



                 Zanni argues on appeal that the district court's failure



            to  award  him  the  three-level  credit  for  acceptance  of



            responsibility was clear error.  He contends that his initial



            statement   of  acceptance   of  responsibility   was  merely



            incomplete and  that he immediately amended  it following the



            government's  objection.   With  respect  to  his failure  to



            resign  from  office,  Zanni   emphasizes  that  he  took  no



            affirmative action to retain his seat after  his guilty plea,



            merely completing  his responsibilities to  his constituents.



            Therefore, "appellant  clearly and unequivocally ceased to be



            a public official upon his decision to enter  a plea."  Zanni



            argues that the  "crucial aspects" of    3E1.1 were satisfied



            by his clear acceptance  of responsibility and his expedition



            in notifying the government of his intention to plead guilty.



                 "The  ultimate  question  under  section  3E1.1  is  not



            whether  the  defendant has  uttered  'a pat  recital  of the


-2-



vocabulary of  contrition,' but whether he  has accepted full



            responsibility for his  part in the offense of  conviction by



            demonstrating 'candor and  authentic remorse.'" United States
                                                            _____________



            v.  Ocasio-Rivera, 991  F.2d 1,4  (1st Cir.  1993) (citations
                _____________



            omitted).    The   burden  is  on  the   defendant  to  prove



            entitlement to  the credit for acceptance  of responsibility.



            Id.   "The sentencing  court's determination to  withhold the
            ___



            reduction  will   be  overturned   only  if  it   is  clearly



            erroneous." Id.
                        ___



                 "The   inquiry  into  acceptance  of  responsibility  is



            necessarily factbound.   In  deciding whether a  defendant is



            entitled  to a reduction on this score, a district court must



            weigh   a  multitude   of  factors,   some  objective,   some



            subjective.  Credibility and demeanor  play a crucial role in



            determining whether a  person is genuinely contrite."  United
                                                                   ______



            States v. Royer,  895 F.2d 28,  30 (1st Cir.  1990).  At  the
            ______    _____



            sentencing hearing,  the  court stated  that  it had  had  an



            opportunity  to "evaluate [Zanni's] level of understanding of



            the  crime that  he has  committed and  his remorse  for that



            crime."  Zanni's statements before and during the hearing, as



            well  as his actions between  the time of  his arrest and his



            guilty plea  formed the  basis for the  court's determination



            that Zanni  had failed to  accept responsibility.   The court



            was  not   persuaded  that  Zanni   was  genuinely  contrite.


-3-



"Because  the court had a plausible basis for arriving at the



            conclusion, no more was required."  Id.  
                                                ___



                 The sentencing court was  troubled by Zanni's failure to



            acknowledge  the full  extent of his  conduct in  his initial



            statement  contained in the PSR.   Efforts by  a defendant to



            minimize   his   culpability   "whether  during   presentence



            interview  or   in  his   allocution"  are   appropriate  for



            consideration  in  denying  a  reduction  for  acceptance  of



            responsibility. Ocasio-Rivera,  991 F.2d at 5.  The court was
                            _____________



            also  disturbed by  Zanni's reference  to his  conduct during



            sentencing  as  a  "mistake."   The  court's  opportunity  at



            sentencing to see  the defendant, "listen to  him, and assess



            his credibility" is entitled to deference. Royer, 895 F.2d at
                                                       _____



            30.  



                 In denying the  three-level reduction for acceptance  of



            responsibility, the  district  court was  also influenced  by



            Zanni's conduct in failing to resign from  his position after



            his arrest and in continuing to collect his salary and to run



            for re-election until  the time  of his guilty  plea.   Zanni



            argues that  this  conduct is  irrelevant  to whether  he  is



            entitled to a reduction for acceptance of responsibility.  We



            have  held,  however,  that  a   defendant's  later  conduct,



            following the offense of conviction but before a guilty plea,



            "certainly could shed light on the sincerity of a defendant's



            claims of remorse"  and may be  considered. United States  v.
                                                        _____________


-4-



O'Neil, 936 F.2d  599, 600  (1st Cir. 1991).   Moreover,  the
            ______



            commentary   to     3E1.1   specifically  provides  that  one



            consideration in deciding whether  to grant the reduction for



            acceptance of responsibility  is "voluntary resignation  from



            the  office or  position held  during the  commission of  the



            offense."  U.S.S.G.   3E1.1, comment, n.1(f).



                 The district court did not commit clear error in denying



            Zanni a reduction for acceptance of responsibility.



                 II.  Breach of Plea Agreement
                      ________________________



                 Zanni argues that  the government "functionally  reneged



            on  their plea agreement"  by recommending a  sentence at the



            high  end  of the  imprisonment  range  after the  court  had



            rejected the government's recommendation that Zanni receive a



            reduction for acceptance of responsibility.  Zanni's argument



            is essentially that when the plea agreement ("the Agreement")



            was entered into, the  parties anticipated that a three-level



            reduction  would be  granted,  resulting in  an  imprisonment



            range of 18  to 24  months.  Therefore,  when the  government



            recommended sentencing Zanni at  the high end of the 27 to 33



            month range, it "functionally" breached the plea agreement.



                 "[W]hen  a plea  rests in  any significant  degree on  a



            promise or agreement  of the  prosecutor, so that  it can  be



            said  to be  part of  the inducement  or consideration,  such



            promise must be fulfilled." Santobello v. New York,  404 U.S.
                                        __________    ________



            257, 262  (1971); see  also United  States v. Kurkculer,  918
                              ___  ____ ______________    _________


-5-



F.2d  295, 297 (1st Cir. 1990) ("The Government must keep its



            promises  or   the  defendant  must  be   released  from  the



            bargain.").  



                 In this  case, the government fulfilled  the promises it



            made in the Agreement.   The Agreement provided that  "no one



            has promised a particular sentence or sentencing range."   It



            further  provided  that  "[d]efendant has  been  advised  and



            understands .  .  . that  the final  decision concerning  the



            range of sentences applicable  to his offense rests with  the



            Court  and that defendant will  not have a  right to withdraw



            his  plea   based  upon   the  Court's  application   of  the



            guidelines."  After Zanni amended his statement in the PSR to



            "completely  and truthfully  admit[] his  involvement in  the



            criminal  conduct  to  which  he  is  pleading  guilty,"  the



            government withdrew its opposition to a three-level reduction



            for acceptance of responsibility.  The government recommended



            a jail sentence "within  the range of jail terms  computed by



            the   Court."    The  Agreement  specifically  provided  that



            "Defendant understands  that the  government will be  free to



            recommend  any specific  sentence it  deems appropriate  from



            within that range." 



                  Zanni was not promised a  particular imprisonment range



            or a particular sentence.  The Agreement anticipated both the



            possibility that the sentencing  court would deny a reduction



            for  acceptance  of responsibility  and  that the  government


-6-



would  recommend a sentence at the high end of the applicable



            sentencing range.   The  government did not  breach the  plea



            agreement by recommending a  sentence at the high end  of the



            sentencing range arrived at by the court.



                 Accordingly, Zanni's sentence is summarily affirmed. See
                                                            ________  ___



            Loc. R. 27.1. 


-7-