United States v. Wilson

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 14 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 98-6163
v. (D.C. CR-97-191-R)
(Western District of Oklahoma)
GLENIS LANORE WILSON,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before PORFILIO , KELLY , and HENRY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Glenis Lanore Wilson pleaded guilty to bank fraud, in violation of 18
U.S.C. § 1344(2), but appeals her fifteen month sentence, contending only that
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
the district court erred in denying her a two-level downward adjustment for
acceptance of responsibility under U.S.S.G. § 3E1.1. We affirm.
On October 29, 1997, Ms. Wilson was arrested for her participation in a
bank fraud scheme. She immediately confessed to her involvement and provided
information on other criminal participants, but minimized her own role. At her
plea hearing and subsequent debriefing, in order to protect a relative, she falsely
identified a co-participant. Later at the same debriefing, she renounced her
earlier statements and correctly identified the co-participant. At sentencing, the
district court imposed a two-level upward adjustment for obstruction of justice
pursuant to U.S.S.G. § 3C1.1 because of Ms. Wilson’s earlier false statements.
Ms. Wilson argues that the district court erred in failing to grant her a
downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1.
Acceptance of responsibility is a factual determination reviewed for clear error.
See United States v. Hawley , 93 F.3d 682, 689 (10th Cir. 1996). “The sentencing
judge is in a unique position to evaluate a defendant’s acceptance of
responsibility. For this reason, the determination of the sentencing judge is
entitled to great deference on review.” U.S.S.G. § 3E1.1 cmt. n. 5.
Ordinarily, a defendant who has been assessed an upward adjustment for
obstruction of justice may not simultaneously receive a downward adjustment for
acceptance of responsibility. See U.S.S.G. § 3E1.1 cmt. n. 4. Ms. Wilson
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nevertheless contends that her situation qualifies as an “extraordinary case”
exception to the ordinary rule, in which the district court might grant
simultaneous adjustments. See id. (“There may, however, be extraordinary cases
in which adjustments under both §§ 3C1.1. and 3E1.1 may apply.”). She argues
that her immediate confession, her cooperation regarding her co-participants, and
her ultimate correct identification of all co-participants demonstrate her
acceptance of responsibility.
Under the deferential standard, however, we do not believe the district
court erred in refusing to find that Ms. Wilson’s situation presented an
“extraordinary” case. The district court’s determination of whether a defendant
has accepted responsibility should not be disturbed “unless it is without
foundation.” United States v. Amos , 984 F.2d 1067, 1071-72 (10th Cir. 1993).
In determining whether a case is extraordinary, the court may consider whether
the defendant’s obstructive conduct is “inconsistent” with her acceptance of
responsibility. See United States v. Hopper , 27 F.3d 378, 383 (9th Cir. 1994).
The district court, in denying the downward adjustment, expressly considered
that Ms. Wilson initially minimized her involvement and that she continued to
provide false information to the court and the prosecutor even after pleading
guilty. See Rec. vol. IV, at 6-7 (Transcript of Sentencing Hr’g held March 26,
1998). This behavior, inconsistent with acceptance of responsibility, presents a
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sufficient foundation for the court’s denial of Ms. Wilson’s request for
downward adjustment. See, e.g. , United States v. Tovar , 27 F.3d 497, 499 (10th
Cir. 1994) (“[D]istrict court did not clearly err in refusing to reduce [defendant’s]
offense level for acceptance of responsibility” when defendant “obstructed justice
by misrepresenting his age in his motion to dismiss” the indictment, although he
later pleaded guilty).
Accordingly, we cannot conclude that the district court’s refusal to grant a
downward adjustment was clearly erroneous.
We therefore AFFIRM the sentence imposed by the district court.
Entered for the Court,
Robert H. Henry
Circuit Judge
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