United States v. Carlton T. McIntosh , 198 F.3d 995 ( 2000 )

KANNE, Circuit Judge.

Carlton McIntosh pleaded guilty to one count of money laundering. The district court sentenced him to seventy-eight months imprisonment and three years supervised release. While it imposed no fine, it did order him to pay restitution in the amount of $38,764.50. McIntosh believes the district court improperly calculated his sentence under the United States Sentencing Guidelines by denying him a downward departure for acceptance of responsibility, erroneously determining the amount of restitution and failing to consider his ability to pay restitution. We disagree and affirm the sentence.

I. History

In March 1997, McIntosh was serving a sentence for a bank fraud conviction out of the U.S. District Court in St. Louis. He was incarcerated at the federal prison facility in Duluth, Minnesota. Under the Interstate Agreement on Detainers, federal officials released McIntosh to the custody of the State of Illinois. After pleading guilty in state court to forgery and being sentenced to time served, he was inadvertently released from state custody and not returned to federal custody. McIntosh remained at large and did not voluntarily surrender himself to federal officials. Shortly after his mistaken release, McIntosh was charged with escape in U.S. District Court in Minnesota.

While attempting to evade capture, McIntosh opened three accounts with Bank One in Kenosha, Wisconsin. Two were in the name of “Irwin Hardis,” and the third was in the name of “Hardis Investment Services.” When establishing these accounts, he deposited checks into them drawn from accounts with either no money in them or accounts with insufficient funds. Then, he attempted to make withdrawals from the three new accounts. The largest single withdrawal appears to be a cashier’s check provided to him by Bank One in the amount of $28,900.00 from the “Hardis Investment Services” account.

U.S. Marshals apprehended McIntosh in late April in Indianapolis. At the time of his arrest, he was driving a 1994 BMW • that he had purchased with the Bank One cashier’s check. They also recovered from him $1,558.54 in cash.

Before McIntosh returned to Minnesota to face the charges for escape, the government charged him in the Southern District of Indiana on April 30, 1997, with a two count criminal complaint alleging bank fraud and money laundering. An arrest warrant was issued based on the criminal complaint. Subsequently, the escape charge in Minnesota was dismissed, and on May 1, 1997, the arrest warrant issued in Indianapolis was executed. . On May 30, 1997, the government filed a single-count information, charging McIntosh with bank fraud under 18 U.S.C. § 1344. For a period of ten months, plea negotiations ensued between MeInto§h and the government, but ultimately McIntosh refused to enter into a plea agreement. With the breakdown in plea negotiations, a grand jury returned an indictment on March 3, 1998, charging McIntosh with one count of money laundering under 18 U.S.C. § 1957. On that same day, the government moved to dismiss the pending bank fraud information. That information was dismissed on March 16,1998.

In response, McIntosh filed a motion to dismiss based on the Speedy Trial Act, alleging that it barred prosecution of the money laundering charge because the government failed to try McIntosh within seventy days of filing the charging information and that the indictment was returned ten months after his arrest. After holding an evidentiary hearing, the district court denied the motion, concluding that the bank fraud and money laundering charges were different and that the clock on the money laundering charge in the indictment did not begin to run with the bank fraud charge in the information. The district court concluded that the government had not exceeded the seventy-day limit with regard to the money laundering charge because the delay resulted from various extensions requested by McIntosh. The district court also found “no suggestion of bad faith on the part of the government,” but rather that “the delay that did result was caused by protracted plea negotiations between the parties.”

Five days before he was scheduled for trial, McIntosh requested to enter a plea of guilty without a plea agreement. The district court held an evidentiary hearing, during which it advised him of his rights and accepted his guilty plea. McIntosh subsequently filed pro se a request to dismiss his counsel and set aside his guilty plea. He contended that the government’s indictment failed to allege a federal offense because it did not assert that the bank was federally insured. In addition to requesting that the district court dismiss the case with prejudice, he claimed his court-appointed counsel refused to act on this issue and requested new counsel. At sentencing, however, he withdrew the motion. In a separate motion, McIntosh objected to the Presentence Investigation Report (“PSI”) because of its calculation of points under the United States Sentencing Guidelines (“U.S.S.G.” or “Sentencing Guidelines”) and its calculation of restitution. The district court sentenced him to serve seventy-eight months imprisonment and three years supervised release and to pay $38,764.50 in restitution to Bank One for its direct losses due to his criminal activity.

II. Analysis

McIntosh appeals his sentence and the assessment of restitution. First, he claims the district court erred when it denied him a two-level decrease under U.S.S.G. § 3El.l(a) for acceptance of responsibility. Second, he contests the district court’s order of restitution, contending that no evidence supports the amount Bank One lost, that he should be credited for the property the government confiscated when he was arrested, and that the court failed to consider his economic status when imposing the order.

A. Acceptance of Responsibility

McIntosh’s first challenge to his sentencing involves the district court’s denial of a two-level decrease in his base offense level for acceptance of responsibility in accordance with U.S.S.G. § 3E1.1(a). We review a district court’s factual determination regarding acceptance of responsibility for clear error. See United States v. Jones, 52 F.3d 697, 700 (7th Cir.1995). We will reverse the finding only if the record contains no evidence providing a foundation for it. See id. The district court is entitled to great deference in making these determinations because it is “in a unique position to evaluate a defendant’s acceptance of responsibility.” U.S.S.G. § 3E1.1 cmt. 5. “The question of whether a defendant has accepted responsibility for his crimes is a factual one, depending largely on credibility assessments of the sentencing judge.” United States v. Rosalez-Cortez, 19 F.3d 1210, 1218 (7th Cir.1994) (quoting United States v. Skinner, 986 F.2d 1091, 1100 (7th Cir.1993)).

Under U.S.S.G. § 3El.l(a), a district court may grant a defendant who “clearly demonstrates acceptance of responsibility for his offense [a]decrease [in] the offense level by 2 levels.” The accompanying commentary explains that a district court may consider, but is not limited to, the truthfulness of the admission, the false or frivolous denial of additional relevant conduct, voluntary termination or withdrawal from the criminal conduct or association, voluntary payment of restitution prior to adjudication of guilt, voluntary surrender to authorities promptly after commission of the offense, voluntary assistance to authorities in recovering the fruits and instrumentalities of the offense, voluntary resignation from offices held during the offense, post-offense rehabilitation efforts, and timeliness of manifestation of acceptance of responsibility. See id. cmt. 1. Simply pleading guilty does not entitle a defendant to an automatic reduction. See id. at cmt. 2. The burden, however, rests with the defendant who enters a guilty plea to establish that he is entitled to a reduction. See United States v. Taylor, 72 F.3d 533, 549 (7th Cir.1995), dismissal of post-conviction relief affirmed by 142 F.3d 440 (7th Cir.1998).

In light of our deference to district courts,“[w]e have refrained from formulating categorical tests, preferring to leave it to the sentencing judges to apply common sense to the testimony they hear and the defendants they observe.” United States v. Dvorak, 41 F.3d 1215, 1217 (7th Cir.1994). When the district court considers this type of decrease, it should assess the defendant’s “demonstration of ‘genuine remorse,’ or ‘conscience.’ ” Id. “A judge may determine that a defendant has failed to accept responsibility by finding that he failed to demonstrate truthfulness and remorse prior to ‘the final hour.’ ” Rosalez-Cortez, 19 F.3d at 1219 (quoting United States v. Osborne, 931 F.2d 1139, 1155 (7th Cir.1991)). “A ‘grudging and incomplete admission, accompanied by an excuse to minimize his own culpability, does not indicate acceptance of responsibility.’ ” Id. at 1220 (quoting United States v. Aquilla, 976 F.2d 1044, 1053 (7th Cir.1992)).

The transcript of the sentencing hearing reflects the district court’s reluctance to accept McIntosh’s plea as indicative of true remorse. Specifically, the district court stated:

At this point I’m not persuaded that Mr. McIntosh has accepted responsibility for his conduct, given the developments in this case up to today, and I would be happy to hear anything [the defense] has to say on that subject. Ordinarily, someone who pleads guilty will be entitled to a two level reduction for acceptance of responsibility. And I think in all prior cases I have given that adjustment — to someone who has pled guilty— at the bottom. However, I believe the district court is called upon to make some assessment of whether the defendant reflects some moral recognition of the wrongfulness of his conduct and acceptance of the appropriate punishment for that conduct, and at this point I have serious doubts as to whether that’s appropriate here.

In response, McIntosh’s attorney attempted to explain McIntosh’s belief that he wanted to admit his guilt and also desired to “be dealt with [according to] his interpretation of being treated justly and fairly.” McIntosh also addressed the court, stating that “all I’ve been trying to do is get this process over with, over with, over with” since he first spoke with federal officials in May 1997. The court, however, expressed disbelief as to the sincerity of McIntosh’s comments:

How do you reconcile what you just told me, Mr. McIntosh, with the effort to have the case dismissed on speedy trial grounds, and your communication two or three weeks ago asking to have the indictment dismissed because it didn’t .say that Bank One is insured by the F.D.I.C.?

The district court heard arguments from both sides as to whether McIntosh attempted to manipulate the system or merely attempted to exercise his constitutional rights. McIntosh claims that his motion under the Speedy Trial Act, in which he sought to have the case dismissed based on the ten months of failed negotiation between himself and the government, arose from being treated unfairly by the government. The government characterized the motion differently: “It is our belief that Mr. McIntosh is attempting to manipulate the system and he has done that from the beginning.”

The government also explained that the plea negotiations involved a deal for a guilty plea to bank fraud charges or the government would seek to indict McIntosh for money laundering. “When push came to shove, and Mr. McIntosh got every single term he wanted in the plea agreement, [as a witness testified during the hearing on the Speedy Trial Act motion], he said no, I’m not signing. In essence [he] put everyone in a trick bag for that.”

The government further reminded the court that after agreeing to plead guilty to the money laundering charge, McIntosh “at the 11th hour ... [attempted another] manipulation where he’s seeking to dismiss the charges rather than go through with this prior conduct.” McIntosh closed the discussion on this issue with the district court by denying that the initial plea agreement was stacked completely in his favor.

After hearing these arguments, the district court stated its findings:

[A]s I indicated earlier — I have, I believe in all prior cases involving guilty pleas, granted [a downward deduction for acceptance of responsibility], I do not believe it is appropriate in this case. I want to explain what I am considering in making that judgment and what I am not considering. I am not considering the give and take in plea negotiations. I am not considering objections raised to the presentenee report’s 'guideline calculations ... I think that — that anybody is entitled to do that and [that] does not affect the acceptance of responsibility issue, unless they’re arguing in essence the scope of relevant conduct in the particular case or that it may be relevant. What I do find difficult — well, for me impossible to reconcile with genuine remorse in this case — is Mr. McIntosh’s efforts to seek dismissal in this case on speedy trial act grounds, and then on an extraordinarily technical reading of the indictment even after he had pled guilty. I think [the government’s] use of the phrase trick bag or attempted trick bag is correctly accurate in describing the attempted manipulation of the system here. And for that reason, I don’t believe that Mr. McIntosh has exhibited the kind of remorse that would entitle him to 3E1.1 reductions, although he has admitted the technical elements of the offense charged here.

On appeal, McIntosh argues that the district court’s reasoning is improper because it denied him the decrease as a way to punish him for exercising his constitutional right to a speedy trial, challenging a defective indictment, and his repetitive pattern of conduct. He believes his “early” admission of guilt coupled with a complete and truthful admission of it entitle him to the reduction. We disagree.

Initially, we observe that the statements by the district court at sentencing demonstrate that it did not consider McIntosh’s four convictions for bank related offenses during a period of four years as a basis for rejecting his acceptance of responsibility. Nevertheless, the district court has a responsibility to look at the whole picture when making its determination of whether a defendant has genuine remorse.

In determining a defendant’s sincerity, the district court has an opportunity to observe a defendant “firsthand” during the course of a criminal case. That assessment, of course, is aided by the knowledge of a defendant’s prior conduct, background, and experience (typically through a PSI), which is used to place the physical observations of the defendant by the court in a broader context. Determining believability cannot be accomplished in a vacuum.

Here, it was no doubt significant for the district court to know that, in carrying out a series of crimes, McIntosh habitually employed deceit. In conning financial institutions through a pattern of deception, McIntosh used seven aliases and five bogus social security numbers.

In addition, the criminal charge at issue here hardly represents McIntosh’s first encounter with the judicial process. For example, in 1994, McIntosh pleaded guilty to one count of bank fraud in the U.S. District Court in St. Louis in accordance with a plea agreement that acknowledged his acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. While awaiting sentencing on his plea of guilty, his bond was revoked for again engaging in a bank fraud scheme while released pending sentencing. After serving the twelve-month sentence of incarceration handed down by the federal court in St. Louis, McIntosh began a period of supervised release. The supervised release was revoked in 1995 based on criminal activity involving bank fraud committed during the term of supervision. These factors would certainly be useful to place in context McIntosh’s profession of remorse in this case and conduct during the course of the proceedings below.

Thus, with foregoing in mind, we examine the other two grounds raised by McIntosh — his allegation that in denying acceptance of responsibility the district court improperly focused on his speedy trial challenge and his contention that the indictment for money laundering was defective. From the circumstances of the sentencing hearing, it is clear that the district court did not penalize him for seeking these remedies. Rather, the district court considered these two motions as part of the larger procedural history of the case.

A district court may consider uro-cedural history and whether a defendant has attempted to manipulate the system when determining whether that defendant has sincerely accepted responsibility under the Sentencing Guidelines. See United States v. Trussel, 961 F.2d 685, 691(7th Cir.1992). While a defendant may not be denied a decrease for exercising his constitutional rights automatically, see United States v. Purchess, 107 F.3d 1261, 1269 (7th Cir.1997), the filing of pre-trial motions may be inconsistent with an acceptance of responsibility. See United States v. Robinson, 20 F.3d 270, 275 (7th Cir.1994). Determining whether a defendant is manipulating the judicial system or simply exercising her rights turns on factual findings and the credibility of the defendant, both of which are “uniquely suited to the intuition and experience of the district judge.” Purchess, 107 F.3d at 1269.

In this case, the district court did not rush to judgment; it considered arguments from both sides as well as the pri- or discussions regarding both motions. The court did not express concerns about the fact that McIntosh had filed and argued the motions, but rather the context in which he had raised them. In filing the motion based on the Speedy Trial Act, McIntosh sought to have the case dismissed because of the government’s failure to try him on the bank fraud charge alleged in the criminal information and subsequent procurement of an indictment for money laundering ten months after the filing of the initial information. He, however, was partially responsible for the delay because of the extended period during which he and the government tried to reach a plea agreement. We do not question his right to walk away from negotiations that he finds unacceptable. However, this conduct discloses a lack of acceptance of responsibility. He claims to have admitted guilt early on. Yet he actually attempted to avoid prosecution by raising the issue of delay that existed because of his own actions and not from the government acting in bad faith.

The situation involving the second motion for dismissal also creates considerable doubt as to McIntosh’s sincerity. After having pleaded guilty and acting pro se, he sought a dismissal, claiming that the indictment failed to allege a federal offense because it did not refer to Bank One as insured by the F.D.I.C. Pleading guilty then attempting to obtain a dismissal on a frivolous point is disingenuous and wholly inconsistent with acceptance of responsibility.

As the district court determined, these motions were not genuine attempts to exercise legal rights, but rather were calculated maneuvers to avoid ultimate responsibility. The district court was entitled to doubt the credibility of McIntosh based on the whole picture before it, and its assessment was not clearly erroneous. Thus, we find no reason to disturb the district court’s ultimate findings and conclusions.

B. Restitution Order

McIntosh also takes exception to both the amount the district court ordered him to pay. in restitution to Bank One and the manner in which the district court considered his financial status. He claims that the district court improperly accepted the PSI calculation of the amount of loss to Bank One without requiring the government to present evidence and that the court failed to credit him with the value of the BMW and cash taken from him when he was arrested in Indianapolis. In addition, he asserts that the district court did not consider his indigent status when it imposed restitution while simultaneously waiving the criminal fine without explanation and required the payment to be immediate.

The district court included restitution payments as part of McIntosh’s sentence pursuant to the Mandatory Victim Restitution Act (“MVRA”), 18 U.S.C. § 3663A. We generally review a district court’s imposition of an order of restitution for abuse of discretion. See United States v. Brierton, 165 F.3d 1133, 1139 (7th Cir.1999). Because McIntosh only objected to the PSI’s failure to include the value of the BMW and cash recovered from him in the calculation of restitution and he did not raise his other objections to the trial court, we review these aspects of the order of restitution for plain error only. See United States v. Moore, 127 F.3d 635, 637 (7th Cir.1997).

The MVRA requires courts to include restitution to the victims as part of the sentence for defendants convicted of specific crimes, including property crimes such as money laundering. See 18 U.S.C. §§ 3663A(a)(1), (e)(1)(A)(ii). The district court may determine the amount of restitution based on the loss to the victim. See id. at § 3663A(b)(1)(B); see also Brierton, 165 F.3d at 1139. The court may not consider the defendant’s financial status when calculating this amount. See United States v. Szarwark, 168 F.3d 993, 997 (7th Cir.1999). The government bears the burden of establishing the amount of loss sustained by the victim. See 18 U.S.C. § 3664(e). The district court resolves any disputes between a defendant and the government regarding the amount by a preponderance of the evidence. See id.

McIntosh’s first complaint about the restitution order is that the government presented no evidence as to the amount of loss Bank One incurred because of McIntosh’s actions. McIntosh, however, did not object to the lack of evidence on this point either in his written objections to the PSI or during the sentencing hearing. Because he failed to contest the amount initially, he has forfeited his right to challenge its accuracy before this Court. See United States v. Newman, 144 F.3d 531, 542 n. 11 (7th Cir.1998). Even if he had not forfeited this issue, McIntosh’s challenge would still fall short. At sentencing,the district court referred to the PSI, which contained information regarding Bank One’s losses and McIntosh’s financial circumstances. A court may accept the facts in a PSI as true, unless the defendant produces some evidence, more than mere denials, questioning the PSI’s accuracy. See Purchess, 107 F.3d at 1268. McIntosh made no such challenge, and thus, the district court did not err by relying on the PSI as support for the amount Bank One lost due to McIntosh’s criminal activities.

McIntosh’s other challenge to the district court’s assessment of the amount of restitution also fails to pass muster. He claims the district court refused to provide him with credit for the property (the BMW and $1558.54 in cash) that the U.S. Marshals seized when they arrested him. Contrary to McIntosh’s assertions, however, the district court specifically addressed this point during his sentencing hearing: “The defendant will be entitled to credit on the restitution for property that is already in the government’s custody.” When the government objected by pointing out that McIntosh had not signed over the property nor had it been forfeited, the court stated: “[I]f he does, he’ll be entitled to credit for it.” This excerpt establishes that the district court did do exactly what McIntosh claims it did not. We find no error here.

The second way in which McIntosh alleges the district court erred with respect to the order of restitution focuses on the manner by which the court considered his financial status. In his first challenge on this subject, McIntosh asks us to remand the case because the district court did not provide an explanation for why it ordered restitution when it chose to waive a fine.

“In each order of restitution, the court shall order restitution to each victim in the full amount of each victim’s losses as determined by the court and without consideration of the economic circumstances of the defendant.” 18 U.S.C. § 3664(f)(1)(A); see also United States v. Grimes, 173 F.3d 634, 639 (7th Cir.1999). The court, however, should take the defendant’s economic circumstances into account when considering the manner in which or schedule according to which the defendant will be ordered to pay the restitution. See 18 U.S.C. § 3664(f)(2); see also Szarwark, 168 F.3d at 997. The MVRA, enacted in 1996, does not permit a district court to exercise discretion as to whether it imposes restitution upon a defendant; the statutory language clearly states that it must. See 18 U.S.C. § 3663A(a)(1); see also Brierton, 165 F.3d at 1139.

In contrast to the MVRA, the Victim Restitution Act provides district courts with discretion when ordering restitution. See United States v. Zaragoza, 123 F.3d 472, 478 (7th Cir.1997). If a court chooses to impose such an order and simultaneously waives a fine because of the defendant’s economic circumstances, the court must explain its reasoning. See United States v. Murphy, 28 F.3d 38, 42 (7th Cir.1994); United States v. Berman, 21 F.3d 753, 759 (7th Cir.1994). The imposition of a fine, like restitution under the Victim Restitution Act, is within the discretion of the district court. See 18 U.S.C. § 3572. Thus, waiving a fine because of a defendant’s financial status and imposing an order of restitution in light of that same status creates a potential contradiction in sentencing. In such circumstances, we require the district court to provide some explanation for the discrepancy to avoid unexplained contradictions in judgment. See Berman, 21 F.3d at 759.

When a district court orders restitution pursuant to the MVRA, no such contradiction exists. The imposition of an order of restitution is mandatory under the MVRA, but the decision to waive a fine is discretionary. By imposing mandatory restitution and waiving the fine, the district court is merely following Congress’s mandates. While this approach may appear to foster a contradiction, it is one that Congress created, not the district court. In addition, we find no reason that moves us to require a district court to point out this inherent fact each time the court reaches such a conclusion. Thus, we find no error by the district court as to its imposing restitution under the MVRA and waiving a fine without providing an express reason.

McIntosh’s final objection to the district court’s order of restitution based on his financial status relates to the court’s decision to require him to pay the restitution “immediately,” even though it had waived a fine based on his lack of financial resources. We find no merit to this challenge. “ ‘[I]mmediate payment’ does not mean ‘immediate payment in full;’ rather it means ‘payment to the extent that the defendant can make it in good faith, beginning immediately.’ ” United States v. Jaroszenko, 92 F.3d 486, 492 (7th Cir.1996). The district court ordered that the restitution be paid immediately and that McIntosh should “notify the probation officer of any material changes and economic circumstances [that] might affect his ability to pay restitution.” Thus, the district court has given McIntosh the opportunity to explain his financial circumstances to the probation officer if problems arise. The probation officer can then ask the district court to amend the order of restitution accordingly or make the order more specific. We have approved similar approaches in the past, see id.; see also United States v. Ahmad, 2 F.3d 245, 249 (7th Cir.1993), and McIntosh presents us with no reason that we should consider it error now.

In sum, the district court did not err when imposing the order of restitution.

III. Conclusion

We find that the district court did not err by refusing to grant a two-level downward departure for acceptance of responsibility because it determined that McIntosh had attempted to manipulate the judicial system and did not express true remorse regarding his actions. Nor do we believe the district court erroneously imposed an order of restitution that requires McIntosh to compensate Bank One for the loss it entailed due to his fraudulent scheme because McIntosh failed to object to the amount imposed at trial and the district court correctly applied the statutory provisions of the MVRA. Thus, we AffiRM the sentence imposed by the district court.