United States v. Rodger Seratt ( 1996 )

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No. 95-2988
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Rodger C. Seratt, also known as * Western District of Arkansas
Roy Scott, also known as Roc *
Scott, also known as Kenneth * (UNPUBLISHED)
Funke, *
*
Appellant. *
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Submitted: May 1, 1996
Filed: May 8, 1996
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Before McMILLIAN, WOLLMAN and MURPHY, Circuit Judges.
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PER CURIAM.
Rodger C. Seratt appeals from the final judgment entered in the
District Court1 for the Western District of Arkansas following his plea of
guilty to attempted possession of a listed chemical (ephedrine) with
knowledge that it would be used to manufacture a controlled substance, in
violation of 21 U.S.C. §§ 841(d)(2) and 846, and to criminal forfeiture,
in violation of 21 U.S.C. § 853. On appeal, Seratt challenges his
sentence. For the reasons set forth below, we affirm.
At sentencing, Seratt argued that he was not a career offender under
U.S.S.G. § 4B1.1, because one of the prior convictions
1
The Honorable H. Franklin Waters, Chief Judge, United States
District Court for the Western District of Arkansas.
underlying his career-offender status--a 1988 New Mexico conviction for
which he received a deferred sentence and one year unsupervised probation--
was a deferred prosecution and thus was not countable under U.S.S.G. §
4A1.2(f) (diversionary dispositions from judicial process without finding
of guilt, e.g., deferred prosecutions, not counted). Seratt also
challenged the assessment of one criminal history point for a 1986 Missouri
conviction for which he received a suspended sentence and two years
supervised probation, because that also was a deferred prosecution.
Finally, Seratt argued that he was entitled to an acceptance-of-
responsibility reduction. After overruling Seratt's objections, the
district court sentenced Seratt to 120 months imprisonment and two years
supervised release and ordered him to pay a $12,500 fine.
On appeal, Seratt first argues the district court erred in counting
his New Mexico conviction as a prior sentence. "A diversionary disposition
resulting from a finding or admission of guilt, or a plea of nolo
contendere, in a judicial proceeding is counted as a sentence under §
4A1.1(c) even if a conviction is not formally entered, except that
diversion from juvenile court is not counted." U.S.S.G. § 4A1.2(f).
Because the record shows that Seratt received a diversionary disposition
of his New Mexico charge after pleading "no contest" to the charge, we
conclude the district court properly counted the sentence under
U.S.S.G.§ 4A1.2(f). See United States v. Pierce, 60 F.3d 886, 892-93 (1st
Cir. 1995) (plea of nolo contendere and state's withholding of adjudication
is diversionary disposition properly calculated in defendant's criminal
history category), petition for cert. filed, No. 95-6474 (U.S. Oct. 19,
1995); United States v. Rockman, 993 F.2d 811, 812-14 (11th Cir. 1993)
(same), cert. denied, 114 S. Ct. 900 (1994).
Although Seratt argues that he received a dismissal of the charge
after he served his probationary sentence, Seratt's guilt as to the charge
was established when he entered his plea. See U.S.S.G. § 4B1.2(3) (for
purposes of § 4B1.1, date that defendant
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sustained conviction shall be date that defendant's guilt has been
established "whether by guilty plea, trial, or plea of nolo contendere");
United States v.Pierce, 60 F.3d at 892 (under § 4B1.2(3) guilt-establishing
event--such as plea where defendant states he does not wish to contest
charges--and not formal entry of adjudicatory judgment, determines whether
conviction is countable; withheld adjudication following nolo contendere
plea constitutes conviction under § 4B1.1); United States v. Jones, 910
F.2d 760, 761 (11th Cir. 1990) (per curiam) (withheld adjudication
following nolo- contendere plea constitutes conviction under § 4B1.1).
We will not consider Seratt's arguments that the New Mexico diversion
statute created a liberty interest and that the dismissal order was
tantamount to an expungement, because these arguments are raised for the
first time on appeal. See United States v. White, 890 F.2d 1033, 1034 (8th
Cir. 1989) (claim as to constitutionality of sentencing entrapment statute
not raised below was not properly before appellate court); accord United
States v. Bost, 968 F.2d 729, 734 n.4 (8th Cir. 1992).
Next, we reject Seratt's argument--to the extent it is not moot
because of his career-offender status--that the district court erroneously
assessed one criminal history point for his Missouri sentence. The record
shows that he pleaded guilty to the charge. See United States v. Frank,
932 F.2d 700, 701 (8th Cir. 1991) (state probation sentence properly
counted as prior sentence under § 4A1.2(f) where defendant pleaded guilty
to state charge).
Seratt also argues that the district court erroneously denied him an
acceptance-of-responsibility reduction. A district court may reduce the
offense level of a defendant who "clearly demonstrates acceptance of
responsibility for his offense." U.S.S.G. § 3E1.1. Whether a defendant
has accepted responsibility is a factual question that depends in large
part on the district court's credibility assessments; the district court's
decision to
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grant or deny the reduction is given great deference on appeal and will not
be disturbed unless clearly erroneous. United States v. Evans, 51 F.3d
764, 766 (8th Cir. 1995). A defendant who enters a guilty plea is not
entitled as a matter of right to a reduction for acceptance of
responsibility. U.S.S.G. § 3E1.1, comment. (n.3).
We conclude the district court did not clearly err in denying the
reduction, because the district court found as a credibility matter that
Seratt was not remorseful. See United States v. Adipietro, 983 F.2d 1468,
1472 (8th Cir. 1993). We reject Seratt's assertion that the district court
denied him the reduction based solely on his prior convictions. The record
shows that the district court considered Seratt's past record only insofar
as it was relevant to the determination of whether Seratt was remorseful
for the instant offense or was instead essentially manipulating the justice
system. See United States v. Byrd, 76 F.3d 194, 196-97 (8th Cir. 1996).
Moreover, Seratt failed to present any evidence beyond his attorney's
statements to support the reduction. See United States v. Morales, 923
F.2d 621, 628 (8th Cir. 1991) (defendant bears burden for establishing
acceptance of responsibility).
Seratt next argues that the district court erroneously determined
that he could pay a fine. In all cases, a district court shall impose a
fine unless "the defendant establishes that he is unable to pay and is not
likely to become able to pay any fine." U.S.S.G. § 5E1.2(a). Because
Seratt presented no evidence to the contrary, we conclude the district
court did not err in finding that Seratt could pay a $12,500 fine based on
the length of his sentence and prison work opportunities. See United
States v. West, 15 F.3d 119, 122 (8th Cir.) (affirming $15,000 fine where
defendant failed to present any evidence fine was unreasonable), cert.
denied, 115 S. Ct. 177 (1994).
Finally, we deny Seratt's pro se motion for a change of
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counsel and for leave to file a supplemental brief.
The judgment is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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