United States v. Charles Raimondi, Jr. , 620 F. App'x 803 ( 2015 )

Case: 14-15479 Date Filed: 08/13/2015 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-15479
Non-Argument Calendar
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D.C. Docket No. 4:14-cr-00032-RH-CAS-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES RAIMONDI, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(August 13, 2015)
Before TJOFLAT, MARCUS and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
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On May 12, 2012, at the Federal Detention Center in Tallahassee, Florida,
while Charles Raimondi, Jr., a Detention Center inmate, was conversing with an
inmate (“victim”), Rickey Lacey, an inmate, attacked the victim from behind with
a “shank” made of razor blades embedded in a tooth brush. Lacey split the
victim’s earlobe and cut his face, neck and throat. The victim’s medical treatment
included 24-300 stitches. A piece of a razor blade was found in a drain near where
Raimondi had been standing. Raimondi hid the toothbrush containing a remaining
razor blade between his buttocks, where corrections officers found it.
A four-count indictment was returned against Lacey and Raimondi, each
charged separately in two counts. Count Three alleged that Raimondi, in violation
of 18 U.S.C. § 2, aided and abetted Lacey’s possession of the shank in violation of
18 U.S.C. § § 1791(a)(2), 1791(b)(3), and 1791(d)(1)(B). Count Four alleged that
Raimondi, in violation of 18 U.S.C. § 3, assisted Lacey in order to hinder or
prevent Lacey’s apprehension, trial or punishment for the commission of an assault
with a dangerous weapon with intent to do bodily harm.
Raimondi plead guilty to the two counts pursuant to a plea agreement. At
sentencing, the District Court determined that Raimondi’s sentence range under the
Guidelines came to 46 to 57 months incarceration. 1 In doing so, the court denied
Ramondi a three-level reduction of his adjusted offense level under U.S.S.G. §
1
An adjusted offense level of 17 and a criminal history category V yielded this sentence
range.
2
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3E1.1 for acceptance of responsibility because of his post-plea prison conduct,
which included possession of a weapon similar to the shank used in Lacey’s
commission of the assault. Nonetheless, the District Court departed downward
from the sentence range and sentenced Raimondi to concurrent prison terms of 36
months. He now appeals these sentences, arguing that the District Court erred in
denying his request for acceptance of responsibility in calculating his adjusted
offense level.
We review the District Court’s denial of the acceptance of responsibility
adjustment for clear error. United States v. Calhoon, 97 F.3d 518, 531 (11th Cir.
1996). To find the court’s decision clearly erroneous, we must have a “definite
and firm conviction that a mistake was committed.” United States v. Rothenberg,
610 F.3d 621, 624 (11th Cir. 2010) (quotation omitted).
The Sentencing Guidelines allow for a decrease in the offense level by two
or three levels if the defendant clearly demonstrates acceptance of responsibility.
U.S.S.G. § 3E1.1. The commentary states that while a guilty plea is significant
evidence of acceptance of responsibility, it may be outweighed by other conduct
that is inconsistent with acceptance of responsibility. U.S.S.G. § 3E1.1, comment.
(n.3). Additionally, the commentary provides a non-exclusive list of factors to be
considered in determining whether a defendant accepted responsibility, including
whether the defendant has voluntarily withdrawn from criminal conduct. U.S.S.G.
3
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§ 3E1.1, comment. (n.1). A wide range of evidence may be considered in
determining if the defendant recognizes the wrongfulness of his conduct, has
remorse for the consequences, and is willing to turn away from that conduct in the
future. United States v. Scroggins, 880 F.2d 1204, 1215-16 (11th Cir. 1989).
We have consistently found that subsequent criminal conduct is a valid basis
for denying an acceptance of responsibility adjustment. United States v. Davis,
878 F.2d 1299, 1300-01 (11th Cir. 1989) (holding continued drug use while out on
bond supports denying acceptance of responsibility); United States v. Villarino,
930 F.2d 1527, 1529-30 (11th Cir. 1991) (holding conviction for nine additional
offenses while released on bond supports denying acceptance of responsibility).
Subsequent criminal conduct may be considered even if it is unrelated to the
underlying offense. United States v. Pace, 17 F.3d 341, 343 (11th Cir. 1994)
(denying adjustment based on subsequent marijuana use when underlying charge
was for making false claims against the United States).
Such continued criminal conduct after arrest evidences unwillingness to turn
away from the criminal lifestyle that led to the initial arrest, and, therefore, shows
the defendant has not accepted responsibility. Scroggins, 880 F.2d at 1215-16
(holding continued use of cocaine supports denying acceptance of responsibility).
The Supreme Court has noted that when a defendant “obviously did not cease his
life of crime, receipt of a sentencing reduction for acceptance of responsibility
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would . . . [be] so ludicrous as itself to compromise the public reputation of judicial
proceedings.” Puckett v. United States, 556 U.S. 129, 143, 129 S.Ct 1423, 1433,
173 L. Ed. 2d 266 (2009).
The District Court’s acceptance of responsibility finding was not clearly
erroneous. Raimondi Jr.’s post-plea prison conduct falls within the type of
subsequent criminal conduct that this court has recognized as a valid consideration
in determining acceptance of responsibility. Particularly, Raimondi Jr.’s
possession of a weapon similar to that used in the underlying offense is significant
evidence that he had not accepted responsibility and turned away from his criminal
conduct. Even Raimondi Jr.’s subsequent criminal actions that were unrelated to
the underlying offense, such as the physical violence against another inmate and
general refusal to comply with prison officials, are proper considerations in
determining whether he has accepted responsibility. In sum, Raimondi Jr. failed to
meet his burden in proving he should have received an adjustment for acceptance
of responsibility.
AFFIRMED.
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