United States v. Lucas

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
1-28-2004
USA v. Lucas
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-2166
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"USA v. Lucas" (2004). 2004 Decisions. Paper 1067.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 02-2166, 02-2182, 02-2183 and 02-2184
UNITED STATES OF AMERICA
v.
DAVID ARTHUR LUCAS
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. Nos. 00-cr-198-1, 00-cr-350-1, 01-cr-152-1, 01-cr-182-1)
District Court Judge: Honorable Yvette Kane
Submitted Under Third Circuit LAR 34.1(a)
January 15, 2004
Before: SLOVITER, RENDELL and ALDISERT, Circuit Judges.
(Filed January 28, 2004 )
OPINION OF THE COURT
ALDISERT, Circuit Judge.
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This appeal by David A. Lucas requires us to decide whether his sentence should
be vacated and the proceedings remanded for a new sentencing hearing on whether he is
entitled to a reduction in offense level for acceptance of responsibility. The district court
had jurisdiction based on 18 U.S.C. § 3231. We have jurisdiction based on 28 U.S.C. §
1291 and 18 U.S.C. § 3742(a). We will affirm.
I.
Because we write exclusively for the benefit of the parties, who are familiar with
the facts and the proceedings in the district court, our discussion of the background will
be limited. Lucas pleaded guilty on August 23, 2001 to two counts of bank robbery in
violation of 18 U.S.C. § 2113(a), three counts of armed bank robbery in violation of 18
U.S.C. § 2113(d) and one count of brandishing a firearm during a crime of violence in
violation of 18 U.S.C. § 924(c). In connection with Lucas’ guilty pleas, the United
States agreed to recommend a three-point reduction in offense level for acceptance of
responsibility, but only “[i]f the defendant can adequately demonstrate this recognition
and affirmative acceptance of responsibility to the government[.]” (A. 23.)
On March 6, 2002, the United States Probation Office submitted a Revised
Presentence Investigation Report (“PSIR”) detailing 22 separate instances of misconduct
by Lucas while in custody following his arrest in this case. Fourteen of these incidents
took place after Lucas entered into the plea agreement. While in custody awaiting
sentencing, Lucas was charged with striking correctional officers, striking other inmates,
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failing to follow safety and sanitation regulations, disobeying orders, disorderly conduct,
disrupting normal routine, destruction of property, theft of property and possession of
contraband, among other things. The PSIR did not recommend a reduction in offense
level, concluding that Lucas’ “violent and intimidating” conduct while in custody “is
inconsistent with acceptance of responsibility and that a reduction is unwarranted.”
(PSIR ¶ 117.)
Lucas did not object to the conclusions of the PSIR, which determined that Lucas
had an offense level of 35. On April 12, 2002 he was sentenced to 292 months
imprisonment on the armed bank robbery counts and 240 months, to be served
concurrently, on the bank robbery counts. Additionally, he received a sentence of 120
months, to be served consecutively, on the count of brandishing a firearm during a crime
of violence.
Lucas now argues that the sentencing proceedings were flawed because the
district court made no findings as to whether Lucas was entitled to a reduction in offense
level under U.S.S.G. § 3E1.1. Lucas also contends that the district court failed to adopt
the findings of the PSIR. Lucas argues that he ceased in-custody misbehavior after
February 10, 2002, two months before he was sentenced, and that he therefore
demonstrated his acceptance of responsibility after that date. He contends the case
should be remanded to the district court so he can demonstrate his eligibility for a
reduction to an offense level of 32.
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II.
Ordinarily we review the “district court’s factual determination of whether the
defendant is entitled to an acceptance of responsibility reduction in his sentence . . . on a
clearly erroneous standard.” United States v. Ceccarani, 98 F.3d 126, 129 (3d Cir.
1996). Additionally, because “[t]he sentencing judge is in a unique position to evaluate a
defendant’s acceptance of responsibility . . . the determination of the sentencing judge is
entitled to great deference on review.” Id. (quoting U.S.S.G. § 3E1.1 Application Note
5).
Because Lucas did not raise before the district court his objection to the PSIR’s
failure to grant credit for acceptance of responsibility, we review the district court’s
sentencing in conformance with the conclusions of the PSIR for plain error. United
States v. Olano, 507 U.S. 725, 733-735 (1993); United States v. Mustafa, 238 F.3d 485,
492 (3d Cir. 2001).
III.
The record of the sentencing proceedings is in direct contrast with Lucas’
representations to us. The district court specifically stated: “The basis for the sentence is
as follows: The Court adopts the factual findings and guideline application in the
presentence report.” (A. 16.) Rule 32(i)(3)(A) of the Federal Rules of Criminal
Procedure provides that a sentencing court “may accept any undisputed portion of the
presentence report as a finding of fact.” The district court thus was entitled to and did
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adopt the PSIR’s factual determination that Lucas had not accepted responsibility.
Lucas did not dispute, either in writing or verbally, the contents of the PSIR at any
time prior to or during the sentencing proceedings. Moreover, the district court did not
commit plain error in applying the facts to the then-applicable Sentencing Guidelines
acceptance of responsibility section, which states in relevant part:
(a) If the defendant clearly demonstrates acceptance of responsibility
for his offense, decrease the offense level by 2 levels.
(b) If the defendant qualifies for a decrease under subsection (a), the
offense level determined prior to the operation of subsection (a) is
level 16 or greater, and the defendant has assisted authorities in the
investigation or prosecution of his own misconduct . . . decrease the
offense level by 1 additional level.
Commentary
Application Notes:
1. In determining whether a defendant qualifies under subsection (a),
appropriate considerations include, but are not limited to, the
following:
....
(b) voluntary termination or withdrawal from criminal conduct
or associations;
....
U.S.S.G. § 3E1.1 (2001).
The PSIR sets forth in paragraphs 33-55 multiple instances of Lucas’ atrocious
behavior while in custody. The district court was entitled to consider the 22 instances of
serious institutional misconduct while awaiting the plea and sentencing. Section 3E1.1
of the Sentencing Guidelines expressly permits the sentencing court to consider, in
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addition to other factors, the defendant’s voluntary termination or withdrawal from
criminal conduct or associations in determining whether the defendant has accepted
responsibility.
We have noted “that the defendant’s post-offense conduct can shed significant
light on the genuineness of a defendant’s claimed remorse.” Ceccarani, 98 F.3d at 129.
The PSIR accounted for Lucas’ claimed remorse as well as his post-arrest misbehavior,
and thus Lucas’ contention that the district court failed to notice his belated acceptance
of responsibility after February 10, 2002, is without merit. Measured against the limited
review standard of plain error, we reject the contention that there was an error at
sentencing that requires the case to be remanded.
We have considered all of the arguments advanced by the parties and conclude
that no further discussion is necessary. We note especially that Lucas’ point II
concerning the consecutive sentence for a violation of 18 U.S.C. § 924(c) has no merit.
The judgment of the district court will be affirmed.
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TO THE CLERK:
Please file the foregoing opinion.
s/ Ruggero J. Aldisert
Circuit Judge
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