United States v. Tankersley, William ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3425
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIAM H. TANKERSLEY,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 99 CR 181—Rudy Lozano, Judge.
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ARGUED MAY 22, 2002—DECIDED JULY 22, 2002
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Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
KANNE, Circuit Judge. William H. Tankersley pled guilty
to two counts of criminal contempt of court. On appeal,
Tankersley argues that the district court erroneously de-
clined to reduce his sentence by two levels for acceptance of
responsibility; that the district court erred when it en-
hanced his sentence for substantially interfering with the
administration of justice; and that the district court erred
when it enhanced his sentence for obstructing the admin-
istration of justice. We affirm in part, and we vacate and
remand in part.
2 No. 01-3425
I. Background
The Federal Trade Commission (“FTC”) filed a civil fraud
suit against Think Achievement Corporation, New Age
Advertising, and several other corporations, alleging that
the corporations engaged in consumer fraud in connection
with a nationwide telemarketing program for persons seek-
ing employment with the Postal Service. Tankersley was
added as a defendant in an amended complaint that also
sought an injunction and other equitable relief, including
restitution and disgorgement. The district court entered
temporary restraining orders that enjoined the defendants’
unlawful practices, froze their assets, and appointed a
temporary receiver. Additionally, a stipulated preliminary
injunction was then entered that prohibited Tankersley
from, among other things, disposing of or transferring any
of his assets.
However, Tankersley sold his Tiara 3500 Express Yacht
for approximately $213,500 in violation of the preliminary
injunction. In further violation of the injunction, Tankersley
attempted to transfer and conceal the proceeds of this sale.
Specifically, he attempted to mail a check payable to and
endorsed by him in the amount of $191,482.50 to Barclays
Bank in Nassau, Bahamas. On the outside of the envelop
containing the check, Tankersley used an alias, “John
Tinsley,” in an attempt to disguise the sender of the check.
Shortly thereafter, Tankersley was indicted for two counts
of contempt of court for his above stated actions and eventu-
ally pled guilty to both counts of contempt the day before
trial was scheduled to commence.
At sentencing for the contempt convictions, the district
judge determined that Tankersley was not entitled to a two-
level reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1 because (1) Tankersley failed to admit all
of his involvement in the underlying offenses; (2) Tank-
ersley did not accept any responsibility for his actions until
No. 01-3425 3
the day before trial was scheduled to commence; (3) even
after he pled guilty, Tankersley continued to engage in con-
duct that violated the injunction; and (4) Tankersley never
showed any remorse for his actions. Further, the district
court judge determined that Tankersley’s sentence should
be enhanced under U.S.S.G. § 2J1.2(b)(2) for substantially
interfering with the administration of justice by willfully
failing to comply with orders of the district court and that
Tankersley’s sentence should be enhanced under U.S.S.G.
§ 3C1.1 for obstructing the administration of justice.
On appeal, Tankersley argues that he is entitled to a two-
level reduction for acceptance of responsibility because un-
der the Sentencing Guidelines and under the Fifth Amend-
ment he had a right not to disclose his financial status and
relevant conduct beyond what was necessary to convict for
the offense of contempt. Tankersley also contends that the
district court improperly enhanced his sentence for substan-
tially interfering with the administration of justice. Accord-
ing to Tankersley, the district court improperly “double
counted” his conduct by punishing him for contempt
and enhancing his sentence on account of the same con-
duct. Finally, Tankersley contends that the district court
erred when it enhanced his sentence for obstructing the
administration of justice. The government concedes that the
district court’s basis for this enhancement was improper but
offers alternative grounds for affirming this enhancement
that were not considered by the district court.
II. Analysis
We review the district court’s underlying factual findings
for clear error and the district court’s interpretation of the
Sentencing Guidelines de novo. See United States v. May-
berry, 272 F.3d 945, 948 (7th Cir. 2001).
4 No. 01-3425
A. Acceptance of Responsibility
The Sentencing Guidelines provide for a two-level down-
ward adjustment in offense level “[i]f the defendant clearly
demonstrates acceptance of responsibility for his offense,”
U.S.S.G. § 3E1.1, and the burden is on the defendant to
demonstrate that he has accepted responsibility for his con-
duct. See United States v. Taliaferro, 211 F.3d 412, 414 (7th
Cir. 2000). When determining whether a defendant is enti-
tled to an acceptance of responsibility reduction, a defend-
ant must “truthfully [admit] the conduct comprising the
offense of conviction and [admit] the relevant conduct as it
relates to the offense of conviction.” United States v. Car-
rera, 259 F.3d 818, 827 (7th Cir. 2001) (quotation omitted).
Although a defendant is allowed to remain silent concerning
relevant conduct that is “clearly beyond the scope of his
offense of conviction,” it is in the discretion of the sentenc-
ing court to decide “whether the defendant has in all other
respects forthrightly avowed responsibility for his crime.”
United States v. Hammick, 36 F.3d 594, 600 (7th Cir. 1994).
In Carrera, we explained that a finding that the defendant
“was not completely honest in his admissions is an appro-
priate independent justification for denying the reduction”
for acceptance of responsibility. 259 F.3d at 828 (finding
that the “lack of trustworthiness in [Carrera’s] admissions,
his limited admissions, and his changing admissions” was
“an appropriate independent justification for denying the
reduction.”).
In this case, the district court found that Tankersley
failed to admit all of his involvement in the underlying con-
tempt offense. The district court recognized that during his
plea hearing, Tankersley expressly agreed with the gov-
ernment’s summary of the facts constituting the crimes
charged, including the fact that Tankersley attempted to
disguise the check he was mailing to the Bahamas by using
an alias. Then, at sentencing, Tankersley denied that he
had any knowledge about who placed the name “John
No. 01-3425 5
Tinsley” on the envelope. In further support of the district
court’s finding, the government presented evidence that
Tankersley had used aliases on previous occasions. While
the district court gave several reasons for declining to grant
Tankersley a two-level reduction for acceptance of responsi-
bility, this finding that Tankersley failed to admit all of his
involvement in the underlying offense is a sufficient jus-
tification by itself. See id.On appeal, Tankersley argues that the district court de-
nied him a reduction because he refused on Fifth Amend-
ment grounds to provide probation with a personal financial
statement and to disclose relevant conduct. Tankersley,
however, is mistaken. The district court listed multiple rea-
sons for declining to grant Tankersley the two-level reduc-
tion for acceptance of responsibility. One reason given was
that Tankersley failed to admit all of his involvement in the
underlying offense. Because we find no clear error in this
determination and because this determination is a suffi-
cient justification to deny the reduction, see id., we must
affirm the district court’s decision to decline to grant Tank-
ersley a two-level reduction for acceptance of responsibility.
B. Substantial Interference with the Administration
of Justice
Tankersley next contends that the district court erred
when it enhanced his sentence for substantially interfering
with the administration of justice. The Sentencing Guide-
lines provide that “if the offense resulted in substan-
tial interference with the administration of justice,” the
offense level should be increased by three levels. U.S.S.G.
§ 2J1.2(b)(2). The Sentencing Guidelines further explain
that substantial interference includes “the unnecessary ex-
penditure of substantial governmental or court resources.”
U.S.S.G. § 2J1.2, cmt. n.1. In the present case, Tankersley
failed to comply with the district court’s preliminary injunc-
6 No. 01-3425
tion, and as a result of that failure, the government and
the receiver expended substantial resources investigating
Tankersley and securing his assets. For example, the gov-
ernment explained at Tankersley’s sentencing hearing that
many weeks of work went into tracking down and determin-
ing what happened to Tankersley’s yacht. Thus, the district
court properly applied this enhancement.
On appeal, Tankersley contends that because his base
offense level for criminal contempt was calculated using the
guideline for obstruction of justice, it is not logical to allow
an enhancement for substantially interfering with the ad-
ministration of justice. This argument is misplaced. The
Sentencing Guidelines expressly contemplate analyzing the
same conduct that constitutes obstruction of justice to de-
termine whether “the offense result[s] in substantial inter-
ference with the administration of justice” and, if so, the
Sentencing Guidelines direct the sentencing court to en-
hance the sentence by three levels. U.S.S.G. § 2J1.2(b)(2).
Tankersley further contends that this enhancement can-
not apply to him because the district court engaged in dou-
ble counting by considering the same conduct to enhance
his sentence as it considered to punish him for criminal con-
tempt. Contrary to Tankersley’s argument, however, double
counting occurs when a sentencing court applies two or
more upward adjustments based on the same conduct. See
United States v. Parolin, 239 F.3d 922, 928-29 (7th Cir.
2001); United States v. Salyers, 160 F.3d 1152, 1163 (7th
Cir. 1998). In this case, the district court convicted Tank-
ersley of criminal contempt because he sold his yacht and
he attempted to transfer the proceeds of this sale to the
Bahamas. Then, at sentencing the district court enhanced
Tankersley’s sentence because Tankersley’s conduct re-
sulted in a substantial interference with the administration
of justice.
No. 01-3425 7
C. Obstructing the Administration of Justice
Finally, Tankersley contends that the district court’s ba-
sis for enhancing his sentence for obstructing the adminis-
tration of justice under U.S.S.G. § 3C1.1 was erroneous. At
sentencing, the district court enhanced Tankersley’s sen-
tence because it found that he continued to violate the in-
junction by concealing assets in storage units and failing to
provide certain information to the receiver. However,
U.S.S.G. § 3C1.1 does not apply “unless the defendant ob-
structed the investigation or trial of the obstruction count.”
U.S.S.G. § 2J1.2, cmt. n.2. The conduct upon which the dis-
trict court enhanced Tankersley’s sentence did not obstruct
the investigation or prosecution of the instant offense, rath-
er it obstructed the administration of justice with respect to
the FTC civil proceedings. Therefore, as the government
conceded at oral argument, the district court’s basis for en-
hancing Tankersley’s sentence was erroneous. We vacate
this enhancement and remand to the district court to deter-
mine whether proper grounds exist for enhancing Tank-
ersley’s sentence pursuant to this Sentencing Guideline.
III. Conclusion
For the foregoing reasons, we AFFIRM in part, and VACATE
and REMAND in part for proceedings consistent with this
opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—7-22-02