United States v. Travis, Christopher ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3954
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTOPHER TRAVIS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 973—Ruben Castillo, Judge.
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ARGUED APRIL 25, 2002—DECIDED JUNE 19, 2002
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Before CUDAHY, RIPPLE, and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Christopher Travis pleaded guilty
to two counts of mail fraud, 18 U.S.C. § 1341, and was sen-
tenced to 96 months’ imprisonment. His appeal presents
the single question whether the district court properly de-
nied an acceptance-of-responsibility adjustment. The district
court denied the adjustment after finding that Mr. Travis’
comments to probation officials demonstrated that he failed
to accept responsibility for his misconduct. Because the
court’s finding is not clearly erroneous, we affirm.
From 1995 to 1998 Mr. Travis used counterfeit checks and
checks drawn on closed accounts to defraud financial in-
2 No. 01-3954
stitutions, including Brown & Company (a securities in-
vestment corporation), Merrill Lynch, and several banks.
Mr. Travis was arrested in December 1998, and the follow-
ing month a grand jury returned a nine-count indictment
charging him with crimes including bank fraud and posses-
sion of forged securities. After Mr. Travis pleaded guilty to
one count of the indictment, he was sentenced in Septem-
ber 1999 to 36 months’ imprisonment. Mr. Travis did not
voluntarily report in October to serve his prison term,
however, and it was not until April 2000 that federal mar-
shals detained him at a hotel in Los Angeles, California.
From 1998 until his arrest in Los Angeles, Mr. Travis also
orchestrated an investment scam by purporting to run an
investment company called “Maple Investments,” which
in fact was not a legitimate business. Mr. Travis solicited a
total of more than $200,000 from a dozen or more different
“investors” in Maple Investments—much of which he then
deposited into his own accounts. Mr. Travis enlisted the
investors by promising rates of return between 20% and
50% and by styling himself as a wealthy, accredited stock-
broker who held seats on stock exchanges in New York and
Chicago. To conceal the fraud, Mr. Travis sent monthly ac-
count statements and other correspondence to the investors
purporting to show financial transactions made on their be-
half. In addition, when the grand jury in Mr. Travis’ bank
fraud case subpoenaed records from Maple Investments,
Mr. Travis provided fraudulent financial statements that
failed to show the investments of the two investors who had
given him money by that time.
In July 2001 Mr. Travis was charged with ten counts of
mail fraud in connection with his operation of Maple Invest-
ments as well as an eleventh count for failing to appear to
serve the prison term imposed in the bank fraud case. After
No. 01-3954 3
entering into a plea agreement, Mr. Travis pleaded guilty
to the first two counts of the indictment. At sentencing the
district court determined that Mr. Travis had obstructed
justice by responding falsely to the grand jury subpoena in
the bank fraud case. The court also found that Mr. Travis
had failed to accept responsibility for his conduct during the
Maple Investments scam because he attempted to minimize
that conduct when probation officials interviewed him. The
court accordingly adjusted Mr. Travis’ offense level upward
two levels for obstruction of justice and denied his request
for a downward adjustment for acceptance of responsibility.
On appeal Mr. Travis argues only that the district court
improperly denied an adjustment for acceptance of respon-
sibility. Section 3E1.1(a) of the sentencing guidelines au-
thorizes a two-level downward adjustment if the defendant
“clearly demonstrates acceptance of responsibility for his
offense.” U.S.S.G. § 3E1.1(a) (2000). An additional one-level
adjustment is permitted if the defendant “has assisted au-
thorities in the investigation or prosecution of his own mis-
conduct,” and the defendant’s offense level, prior to the
application of § 3E1.1(a), was greater than level 16. Id.
§ 3E1.1(b). The defendant has the burden to establish by a
preponderance of the evidence that an acceptance-of-re-
sponsibility adjustment is warranted. United States v. Ewing,
129 F.3d 430, 435 (7th Cir. 1997). Whether a defendant has
accepted responsibility is a factual question reviewed for
clear error, United States v. Mayberry, 272 F.3d 945, 948 (7th
Cir. 2001); we will affirm absent a “definite and firm” con-
viction that a mistake occurred, Anderson v. City of Bessemer
City, 470 U.S. 564, 573 (1985); United States v. United States
Gypsum Co., 333 U.S. 364, 395 (1948).
A defendant who obstructs justice is presumed not to
have accepted responsibility. See Mayberry, 272 F.3d at 949;
4 No. 01-3954
United States v. Buckley, 192 F.3d 708, 711 (7th Cir. 1999); see
also United States v. Allee, 282 F.3d 997, 1002 (8th Cir. 2002);
U.S.S.G. § 3E1.1, cmt. n.4. The government has stressed this
presumption both in its brief and at oral argument. How-
ever, obstruction-of-justice and acceptance-of-responsibility
adjustments are not always mutually exclusive. See United
States v. Champion, 234 F.3d 106, 110-11 (2d Cir. 2000); see
also United States v. Harper, 246 F.3d 520, 526-28 (6th Cir.
2001); United States v. Lallemand, 989 F.2d 936, 938 (7th Cir.
1993). Here the district court did not cite Mr. Travis’ ob-
structive conduct as the basis for denying an adjustment for
acceptance of responsibility. Instead, the district court de-
nied the adjustment because Mr. Travis downplayed the
illegality of his operation of Maple Investments during a
presentence interview held after he pleaded guilty in
connection with the Maple Investments scam. Mr. Travis
told probation officials, for example, that he did not intend
to defraud the investors in Maple Investments and that the
government had “really overblown” his conduct. R. 40, PSR
at 5. He also discounted the significance of his actions by
suggesting that his problems began only after he received
phony checks from his investors. Mr. Travis went on to say
that, had he “checked out” the investors, he would not have
started writing bad checks. Id. Defendants like Mr. Travis,
who minimize illegal conduct or blame others for wrongdo-
ing, have failed to accept responsibility. See United States v.
Sierra, 188 F.3d 798, 804 (7th Cir. 1999); United States v. Field,
110 F.3d 592, 594 (8th Cir. 1997); United States v. Wilder, 15
F.3d 1292, 1299 (5th Cir. 1994). Thus, the record supports the
district court’s finding that Mr. Travis failed to accept
responsibility, even after he pleaded guilty in this case, and
it is unnecessary to consider whether Mr. Travis’ obstruc-
tion of justice also provided the district court with grounds
to deny an adjustment for acceptance of responsibility.
No. 01-3954 5
Mr. Travis responds that because he entered his pleas
before trial and acceded to the government’s estimate of the
loss caused by his conduct, he still should have received an
acceptance-of-responsibility adjustment. But simply sparing
the government the expense of a trial does not automatically
entitle a defendant to the adjustment. See U.S.S.G. § 3E1.1,
cmt. n.3; see also United States v. Wallace, 280 F.3d 781, 785-86
(7th Cir. 2002); United States v. Branch, 195 F.3d 928, 937 (7th
Cir. 1999). The adjustment’s purpose is not only to induce
guilty pleas; it also takes into account the reduced rate of
recidivism among defendants who admit the wrongfulness
of their actions. See United States v. Lopinski, 240 F.3d 574,
575 (7th Cir. 2001). To accept responsibility a defendant
must therefore express more than regret about the conse-
quences of illegal conduct; the defendant must also ac-
knowledge that the conduct violated the law. See id. at 576.
Yet here Mr. Travis merely apologized at his sentencing
hearing to his family and victims “for all the havoc I’ve
caused” and remarked to probation officials that he had
made “a wrong turn.” R. 42, Sent. Tr. at 24; R. 40, PSR at 5.
Because Mr. Travis’ other comments to probation officials
demonstrated that he did not fully appreciate the illegality
of his actions, the district court did not commit clear error
in denying Mr. Travis’ requested adjustment.
Mr. Travis advances two additional arguments, but nei-
ther requires extended discussion. He first submits that the
district court gave inadequate reasons for denying the ad-
justment. It is true that the district court needed to give
reasons for the sentence it imposed, see 18 U.S.C. § 3553(c),
but we shall uphold a sentence imposed with an incomplete
statement, provided that a “more than adequate” founda-
tion in the record supports the district court’s findings, see
United States v. Corral-Ibarra, 25 F.3d 430, 442 (7th Cir. 1994).
In Mr. Travis’ case the record contains not only an ade-
6 No. 01-3954
quate factual foundation for denying the adjustment, but
it also includes comments from the court explaining why
the adjustment was denied. As Judge Castillo explained,
Mr. Travis was not entitled to an adjustment because he told
probation officials that he never intended to defraud the
investors and that he began “floating checks” only because
some of the investors provided him with fraudulent checks.
R. 40, PSR at 6. Given this explanation, which is sufficient,
Mr. Travis has no basis to challenge the district court’s
articulation of its reasons. Second, Mr. Travis maintains
that in addition to a two-level adjustment under U.S.S.G.
§ 3E1.1(a), he should also have received another one-level
decrease under § 3E1.1(b)(2) since he timely notified
authorities of his intention to plead guilty. But § 3E1.1(b) by
its own terms applies only to defendants who qualify for
a decrease under § 3E1.1(a), and here the record supports
the district court’s finding that Mr. Travis was not entitled
to a two-level decrease in the first place.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—6-19-02