United States v. Kevin D. Cobbs

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 9, 2005
No. 05-10598
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 04-00100-CR-T-30-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN D. COBBS,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Middle District of Florida
_________________________
(November 9, 2005)
Before BIRCH, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Kevin D. Cobbs appeals his sentence to 70 months of imprisonment, which
resulted from a guilty plea for wire fraud, credit card fraud, and fraud in
connection with identification documents and information, in violation of 18
U.S.C. §§ 1343, 1029(a)(2), and 1028(a)(7). On appeal, Cobbs argues that the
district court committed clear error in denying him a 2-level reduction for
acceptance of responsibility under U.S.S.G. § 3E1.1(a). We AFFIRM.
I. BACKGROUND
In January 2005, Cobbs pled guilty to stealing $60,000 in violation of
federal law. Following Cobbs’s guilty plea, the probation officer properly
calculated the offense level and recommended a 3-level reduction for acceptance
of responsibility. A 1-level reduction for prompt pleading is not at issue in this
appeal. Regarding the other 2 levels, the court, at the sentencing hearing, asked
the government whether it had found and recovered the money based on
information provided by Cobbs. After the government reported its unsuccessful
attempts, the court said,
So far not one person that you’ve named has corroborated what
you’ve said that you gave them. . . . Mr. Cobbs, I just don’t believe
it, and I don’t think you’ve cooperated with the government in
revealing what happened to the fruits of this crime, and I’m not
going to grant acceptance of responsibility.
R6 at 14.
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Cobbs enumerates three points of error. First, Cobbs argues that the district
court misinterpreted U.S.S.G. § 3E1.1(a), Application Note 1(e), to require that
fruits of the offense be recovered to receive a reduction for acceptance of
responsibility. Second, Cobbs argues that he was entitled to a reduction for
acceptance of responsibility because he pled guilty, cooperated with law
enforcement officials in the search for the fruits of the crime, and apologized to
the court. Finally, Cobbs argues that he was entitled to an adjustment because the
probation officer so recommended and the government did not appear to object.
II. DISCUSSION
We review a district court’s factual findings concerning a reduction for
acceptance of responsibility for clear error. United States v. Williams, 408 F.3d
745, 756 (11th Cir. 2005) (per curiam). Under clear error review, the defendant
bears the burden of showing entitlement to a reduction and the sentencing court is
entitled to great deference. Id. “Because demonstration of whether or not the
defendant has personally accepted responsibility for his criminal conduct requires
a consideration of both objective factors and subjective considerations of the
defendant’s demeanor and sincerity, the district court’s determination will not be
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overturned unless it is without foundation.” United States v. Castillo-Valencia,
917 F.2d 494, 500 (11th Cir. 1990).
Under U.S.S.G. § 3E1.1(a), if a defendant clearly demonstrates acceptance
of responsibility for his offense, a district court should decrease his offense level
by 2 levels. One factor a court may consider in determining whether the defendant
has accepted responsibility is the defendant’s decision to voluntarily assist
authorities in recovering the fruits and instrumentalities of the offense. See
U.S.S.G. § 3E1.1, Application Note 1(e); see also United States v. Bennett, 928
F.2d 1548, 1557 (11th Cir. 1991). However, mere cooperation is not enough.
United States v. Cruz, 946 F.2d 122, 126 (11th Cir. 1991). The inquiry into
accepting responsibility is about the defendant’s demeanor and sincerity regarding
his wrongful actions. Id.On the other hand, we have overturned the denial of a reduction for
acceptance of responsibility where following arrest, the defendant pled guilty and
provided law enforcement with information that successfully lead to the fruits and
instrumentalities of the crime. See United States v. Howard, 923 F.2d 1500, 1505
(11th Cir. 1991). We said that these facts represented “a classic example of the
kind of conduct the sentencing court should credit as indicative of an acceptance
of responsibility.” Id.4
Turning to Cobbs’s three enumerations of error, we discern no error by the
district court. First, Cobbs contends that the court required successful return of
the money in order to obtain the reduction. This contention is plainly refuted by
the record, which shows that the court did not believe Cobbs’s statements
regarding the location of the money. Thus, the court was not concerned that the
money was not actually recovered but rather with Cobbs’s demeanor and sincerity.
Because there is no evidence that Cobbs was truthful and because demeanor and
sincerity are factual findings best made by the sentencing court, its ruling was not
clearly erroneous.
Second, Cobbs claims that he is entitled to the reduction as a matter of law.
Section 3E1.1, Application Note 3, provides that:
Entry of a plea of guilty prior to the commencement of trial combined
with truthfully admitting the conduct comprising the offense of
conviction, and truthfully admitting or not falsely denying any
additional relevant conduct for which he is accountable . . . will
constitute significant evidence of acceptance of responsibility for the
purposes of subsection (a). However, this evidence may be outweighed
by conduct of the defendant that is inconsistent with such acceptance of
responsibility. A defendant who enters a guilty plea is not entitled to an
adjustment under this section as a matter or right.
In Williams, we affirmed that a defendant who enters a guilty plea is not entitled
to a reduction for acceptance of responsibility as a matter of right. 408 F.3d at
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756. In that case, the sentencing court denied the reduction on grounds that the
defendant testified falsely. Id. at 757.
In this case, after hearing testimony from the inspector that all attempts to
confirm leads as to the whereabouts of the stolen money had failed, the sentencing
court remarked, “Mr. Cobbs is not being truthful and has not accepted
responsibility.” R6 at 13. The district court was within its discretion to deny the
reduction after finding Cobbs testified falsely. See Williams, 408 F.3d at 757.
Further, Cobbs has failed to meet the standard we set in Howard for
overturning a court’s denial of a reduction for acceptance of responsibility. Unlike
the facts of this case, the fruits of the crime were recovered. See Howard, 923
F.2d at 1505. This does not mean that the fruits must be recovered to award the
reduction, but it does mean that we will not disturb the district court’s objective
and subjective findings that resulted in the a denial of the reduction when the
factors that led to reversal in Howard are not present. As previously discussed,
Cobbs has failed to prove facts that show the district court’s decision to be clear
error.
Cobbs’s final assertion of clear error is that he should have been granted the
reduction because the probation officer recommended the reduction and the
government did not appear to object. In United States v. Sawyer, we refused to
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reverse a district court in similar circumstances. 180 F.3d 1319, 1323 (11th Cir.
1999). The report made by the probation officer is only a sentencing
recommendation. Id. The burden to receive a reduction for acceptance of
responsibility lies with the defendant. Williams, 408 F.3d at 756. In this case, the
district court was within its discretion to disregard the probation officer’s report.
Thus, Cobbs’s argument, that he is entitled to a reduction simply because the
probation officer recommended one, fails.
III. CONCLUSION
Sentencing courts are entitled to great deference, and the findings relevant
to granting a reduction for acceptance of responsibility will not be overturned
unless they are without foundation. We conclude that Cobbs failed to meet his
burden of showing entitlement to a reduction and that the decision to deny Cobbs
a reduction for acceptance of responsibility was not clearly erroneous.
Consequently, we AFFIRM.
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