U.S. v. Shipley ( 1992 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-7117
(Summary Calendar)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENJAMIN J. SHIPLEY, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(May 29, 1992)
Before JONES, DUHÉ and WIENER, Circuit Judges.
PER CURIAM:
In this sentencing guideline case, we consider the propriety
of the sentencing court's refusal to reduce the Defendant's offense
level by two as required by U.S.S.G. § 3E1.1(a) (Nov. 1990) for
recognition and acceptance of personal responsibility for his
criminal conduct. Here, the defendant clearly admitted and
accepted full responsibility for the crime of conviction--bank
robbery in violation of 18 U.S.C. § 2113(A)--unconditionally
acknowledging that he committed each element of the crime during
the course of the offense. He denied, however, that his was a
leadership role--itself not a crime of conviction but related
conduct addressed as a sentence enhancing provision in the
guidelines. We thus consider the question whether a defendant's
denial of such sentence enhancing behavior taints an otherwise
complete and unequivocal acceptance of personal responsibility for
the crime of conviction, as a result of which the defendant is
ineligible for the mandatory offense level reduction for acceptance
of responsibility. Finding that it does, we agree with the
district court's denial of Shipley's reduction for acceptance of
responsibility, and affirm the sentence imposed by the court.
I
FACTS AND PROCEEDINGS
After entering a bank in Dallas, Texas, handing a teller a
note stating that an armed robbery was in progress, and demanding
money from her teller's drawer, Defendant-Appellant Benjamin
Shipley left the bank with $2,589, including some "bait bills"
which bore previously recorded serial numbers. A surveillance
camera in the bank photographed Shipley committing the robbery.
Outside, Shipley got into the back seat of a car driven by co-
Defendant Dennis Restle. The front seat of the getaway car was
occupied by another co-Defendant, Allen Miller. Within minutes of
the robbery, the getaway car was spotted and stopped by law
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enforcement agents. Identifiable bait bills were found in the car.
During the presentence investigation the probation officer was
told by Shipley that he committed the bank robbery. He implied
that Restle was the unofficial leader of the group who had
persuaded Shipley to come to Dallas and rob a bank. Shipley's co-
Defendants, however, claimed that Shipley was the planner and
leader.
In the presentence report (PSR) the investigating probation
officer recommended no downward adjustment to Shipley's base level
offense for acceptance of responsibility. After Shipley objected,
the probation officer acknowledged that Shipley had admitted the
robbery but had claimed he was only "going along" with the other
members of the group. The district court resolved the objection
against Shipley, implicitly choosing to credit his two co-
Defendants regarding Shipley's leadership role.
II
ANALYSIS
Our review of a sentence under the guidelines is "confined to
determining whether a sentence was `imposed in violation of law' or
`as a result of an incorrect application of the sentencing
guidelines.'" United States v. Nevarez-Arreola, 855 F.2d 243, 245
(5th Cir. 1989) (citing 18 U.S.C. § 3742(e)). We affirm
applications of the guidelines when they are based on factual
findings that are not clearly erroneous. Id. "A factual finding
is not clearly erroneous as long as it is plausible in light of the
record read as a whole." United States v. Sanders, 942 F.2d 894,
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897 (5th Cir. 1991).
Under U.S.S.G. § 3E1.1(a) (Nov. 1990) a sentencing court must
reduce the offense level by two if the Defendant clearly
demonstrates a recognition and affirmative acceptance of personal
responsibility for his criminal conduct. See Nevarez-Arreola, 885
F.2d at 245-46. The mere entry of a guilty plea, however, does not
entitle a defendant to a sentencing reduction for acceptance of
responsibility as a matter of right. § 3E1.1(b). "Entry of a
guilty plea prior to commencement of trial combined with a truthful
admission of involvement in the offense and related conduct will
constitute significant evidence of acceptance of responsibility."
§ 3E1.1, Application Note 3 (Nov. 1990) (emphasis added).
"However, this evidence may be outweighed by conduct of the
defendant that is inconsistent with such acceptance of
responsibility." Id.
Determination by the district court whether the Defendant has
accepted responsibility is entitled to even greater deference on
review than that accorded under a simple "clearly erroneous"
standard. Nevarez-Arreola, 885 F.2d at 245. "This is so because
the sentencing judge is in a unique position to evaluate whether
the defendant has indeed accepted responsibility." Id.
Facially, the instant case appears to illustrate a blurring of
two guidelines provisions: reduction of offense level for
acceptance of responsibility and enhancement of offense level for
a leadership role. A careful analysis dispels that appearance.
"[B]efore a defendant is entitled to reduction for acceptance of
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responsibility, he must first accept responsibility for all of his
relevant criminal conduct." United States v. Mourning, 914 F.2d
699, 705 (5th Cir. 1990) (statutorily overruled in part on another
issue) (emphasis added). In Mourning the district court declined
to award a 2-level reduction for acceptance of responsibility. Id.
The PSR indicated that Mourning "sought to minimize his role in the
drug trafficking and conspiracy activities by `characterizing
himself as a peripheral observer or minimal participant.'" Id.
The PSR concluded, based on the DEA's investigation and the
district court's findings in connection with Mourning's motion to
suppress, that Mourning "took the lead" in negotiations related to
the conspiracy. Id.
The proposition implicit in Mourning is that a defendant who
is found to have had a leadership role in the offense does not
fully accept responsibility for purposes of § 3E1.1 if, despite his
admission of all elements of the offense of conviction, he
nevertheless attempts to minimize his leadership role. This
proposition finds support in the Ninth Circuit. See United States
v. Sanchez, 908 F.2d 1443, 1450-51 (9th Cir. 1990).
Both Mourning and Sanchez are similar to the instant case.
Shipley's refusal to acknowledge responsibility for all of his
relevant conduct, including his leadership role in the bank
robbery, relieves the district court of the obligation to award a
2-level reduction for acceptance of responsibility.
Shipley claims that the district court abused its discretion
in denying him a reduction for acceptance of responsibility "solely
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on the basis of extra judicial [sic] assertions by co-defendants
with a significant interest in lowering their level of criminal
responsibility." There is no indication in the record, however,
that the district court relied solely on the assertions of the co-
defendants; there was also Shipley's own attempts to shift some of
the blame to Restle.
Moreover, the district court is allowed to rely on information
contained in the PSR in making factual sentencing determinations
"so long as the information has `some minimum indicium of
reliability.'" United States v. Vela, 927 F.2d 197, 201 (5th
Cir.), cert. denied, 112 S. Ct. 214 (1991) (quoting United States v.
Vonsteen, 910 F.2d 187, 190 (5th Cir. 1990)). Shipley bore the
responsibility for demonstrating that the information on which the
district court relied was materially untrue. Id. Assuming for the
sake of argument that the district court had relied solely on
assertions of the co-defendants, Shipley still has not demonstrated
that those assertions were materially untrue. His own coyness and
lack of candor demonstrate an inadequate acceptance of
responsibility.
For purposes of comparing acceptance of responsibility and
leadership role, it is important to observe the temporal
relationships of those guideline provisions. A clear reading of
§ 3B1.1, the guideline provision regulating adjustments to the base
offense level for the defendant's role in the offense, demonstrates
that such an adjustment is based on evidence of the defendant's
role during the commission of the offense and his related conduct.
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See esp. § 3B1.1, Introductory Commentary. On the other hand, such
a reading of § 3E1.1, the guideline provision regulating
adjustments for acceptance of responsibility, is concerned with the
defendant's post-offense acknowledgment of his conduct during the
commission of the crime. Once evidence with the required "indicium
of reliability" is introduced in connection with sentencing to
suggest that the defendant was a leader in the offense, the
defendant must either acknowledge such role or demonstrate that the
information on which the district court relied was untrue. United
States v. Vela, 927 F.2d 197, 201. Here, the district court made
the permissible credibility decision to believe Shipley's co-
defendants' statements and found that Shipley was probably "more
culpable" than his co-defendants. This finding of fact was not
clearly erroneous because it was "plausible in light of the record
read as a whole." United States v. Sanders, 942 F.2d 894, 897.
The district court was entitled to consider that fact among those
relevant to Shipley's acceptance of responsibility.
III
CONCLUSION
The district court was not clearly erroneous in crediting
Shipley's co-Defendants to find that Shipley's role in the bank
robbery was greater than that of a mere follower, as he insisted.
Even though leadership role in the offense of conviction is covered
in a different section of the guidelines than is acceptance of
responsibility for committing that crime, such a role is conduct
related to the offense and thus proper grist for the "acceptance of
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responsibility" mill. The sentencing court committed no reversible
error in denying the otherwise mandatory 2-level reduction for
acceptance of responsibility in light of Shipley's unrelenting
denial of the role that the district court found he played in the
bank robbery. Therefore, the sentence imposed by the district
court is
AFFIRMED.
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