United States v. Gilmore

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 24 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-6342
(D.C. No. CR-97-56-T)
ALLEN WAYNE GILMORE, (W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before PORFILIO , BARRETT , and KELLY , 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.
*
This order and judgment is not binding precedent, except under the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.
Defendant appellant Allen Wayne Gilmore pled guilty to one count of
conspiracy to commit offenses against the United States and one count of theft of
stolen mail. Defendant was sentenced to a term of twenty-four months’
imprisonment on each count to run concurrently, directed to make restitution, and
ordered to serve a term of supervised release. On appeal, defendant argues that
the district court erred in denying him an adjustment to his sentence for
acceptance of responsibility. We affirm.
Section 3E1.1 of the United States Sentencing Guidelines (Guidelines)
allows a district court to reduce a sentence where the defendant clearly
demonstrates that he has accepted responsibility for his criminal conduct. “The
district court has broad discretion to determine whether to award a sentence
reduction pursuant to §3E1.1 for acceptance of responsibility, and we will not
disturb its decision absent clearly erroneous findings.” United States v. Bindley ,
157 F.3d 1235, 1240 (10th Cir. 1998); see also United States v. Moudy , 132 F.3d
618, 621 (10th Cir. 1998) (holding § 3E1.1 determination entitled to great
deference on review). The defendant bears the burden of establishing entitlement
to the § 3E1.1 reduction, see United States v. Jaynes , 75 F.3d 1493, 1508 (10th
Cir. 1996), which is not automatically granted merely because he or she has
entered a guilty plea, see United States v. Gacnik , 50 F.3d 848, 853 (10th Cir.
1995).
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In denying defendant the requested reduction, the district court noted that,
after his arrest and release on bond, defendant was stopped for speeding. When
stolen checks related to the instant offense were found in the vehicle, defendant
denied knowledge of their presence. Defendant also traveled outside the Western
District of Oklahoma in violation of his bond conditions, and tested positive for
methamphetamine and marijuana, indicating drug use after his release on bond.
For these reasons, the district court denied the reduction for acceptance of
responsibility.
Among the factors suggested for consideration by a sentencing court in
deciding whether a defendant qualifies for a reduction for acceptance of
responsibility is whether the defendant has voluntarily terminated or withdrawn
from criminal conduct or associations. See Guidelines Manual § 3E1.1
application note 1(b). The weight of authority among the circuits which have
considered the question holds that any criminal conduct committed while a
defendant is free on bond is relevant in determining whether a defendant has
accepted responsibility. See United States v. Ceccarani , 98 F.3d 126, 129 (3d Cir.
1996) (collecting cases); but see United States v. Morrison , 983 F.2d 730, 735
(6th Cir. 1993) (holding that acceptance of responsibility considers only conduct
related to the charged offense). This circuit has affirmed the denial of a
downward adjustment for acceptance of responsibility where the defendant
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violated his appearance bond, see United States v. Hawley , 93 F.3d 682, 689
(10th Cir. 1996), and where the defendant had attempted escape, see United States
v. Amos , 984 F.2d 1067, 1073 (10th Cir. 1993). Based on evidence of
defendant’s conduct while free on bond, we find no error in the district court’s
decision to deny defendant a reduction based on acceptance of responsibility.
Defendant argues that the district court erred in not performing an
evaluation of all of the factors listed in the application notes when making its
sentencing decision. We find no authority requiring the district court to make
findings as to each of the suggested factors contained in the notes. As the
relevant application note states, “[t]he 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.”
Guidelines Manual § 3E1.1 application note 5. Given this deferential standard
and the fact that the Guideline factors are suggestive only, we will not require a
sentencing judge to make findings regarding each factor listed in the application
notes to § 3E1.1.
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The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED.
Entered for the Court
James E. Barrett
Senior Circuit Judge
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