United States v. Peter Harmon , 357 F. App'x 129 ( 2009 )

FILED
NOT FOR PUBLICATION DEC 08 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-50565
Plaintiff - Appellee, D.C. No. 2:08-cr-00695-ODW-1
v.
MEMORANDUM *
PETER HARMON,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Submitted September 2, 2009 **
San Francisco, California
Before: HUG, SKOPIL and BEEZER, Circuit Judges.
Criminal defendant Peter Harmon appeals the district court’s sentence of
four months imprisonment and three years of supervised release following his plea
of guilty to possession of stolen mail under 18 U.S.C. § 1708. Harmon contends
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
that he was entitled to a reduction in sentence under the section 3E1.1 of the
federal sentencing guidelines for accepting responsibility for his actions. We have
jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We review the
district court’s factual determination of whether a defendant has accepted
responsibility for clear error. United States v. Wilson, 392 F.3d 1055, 1061 (9th
Cir. 2005).
The facts of this case are known to the parties. We do not repeat them.
Under the federal sentencing guidelines, a criminal defendant is entitled to a
downward adjustment if he clearly accepts responsibility for all of his relevant
conduct. Id. A plea of guilty is evidence of acceptance of responsibility, but it
may be outweighed by a defendant’s inconsistent conduct. U.S.S.G. § 3E1.1 app.
n.3. The defendant carries the burden of proof in demonstrating acceptance of
responsibility. United States v. Innie, 7 F.3d 840, 848 (9th Cir. 1993).
The district court did not clearly err when it determined that Harmon had not
clearly accepted responsibility. The district court found that Harmon had not
clearly accepted responsibility despite his admission and guilty plea because of his
pattern of missing appointments with probation officers and showing up late to
court, if at all. The court found this behavior inconsistent with acceptance of
responsibility and declined to apply a reduction. This determination is entitled to
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“great discretion” and is amply supported by the record. See Wilson, 392 F.3d at
1061 (noting we “afford the district court great deference because of its unique
position to evaluate a defendant’s acceptance of responsibility”) (internal quotation
marks omitted).
AFFIRMED.
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