United States v. Mara

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-30102
Plaintiff-Appellee, D.C. No.
v.  CR-06-30025-2-
JOHNNY LEE MARA, OMP
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Submitted February 26, 2008*
Filed April 28, 2008
Before: Robert R. Beezer, Ferdinand F. Fernandez, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
4601
UNITED STATES v. MARA 4603
COUNSEL
Robert M. Stone, Esq., Medford, Oregon, for the appellant.
Douglas W. Fong, Esq., Assistant United States Attorney,
United States Attorney’s Office, Medford, Oregon, for the
appellee.
OPINION
McKEOWN, Circuit Judge:
Johnny Lee Mara appeals his 77-month sentence for being
a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). Mara argues that pursuant to United States Sen-
tencing Guidelines (“U.S.S.G.” or “Guidelines”) § 3E1.1(a),
he was entitled to a two-level downward adjustment of his
sentence because he accepted responsibility for his crime. The
question we address is whether unrelated criminal conduct
following a guilty plea may be considered in evaluating a
defendant’s acceptance of responsibility.
Mara pled guilty in exchange for the government’s recom-
mendation that he be given a sentence at the low end of the
Guidelines range. The government reserved the right to with-
4604 UNITED STATES v. MARA
hold the recommendation if, prior to sentencing, Mara acted
in a manner inconsistent with his acceptance of responsibility.
While awaiting sentencing at the county jail, Mara was
involved in a physical altercation. Four different inmates con-
firmed that Mara played a culpable role in the conflict. Fol-
lowing the incident, the government withdrew its sentencing
recommendation on the ground that the jailhouse altercation
was a breach of the plea agreement. At the sentencing hear-
ing, the district court determined that the incident demon-
strated that Mara had failed to accept responsibility for his
crime. Accordingly, the district court declined to give Mara a
two-level downward adjustment of his sentence.
[1] Mara argues that because his involvement in the jail-
house fight was conduct separate and apart from his firearm
conviction, this subsequent unrelated incident should not be
considered in determining whether he accepted responsibility.
We have previously held that ongoing criminal activity
related to the offense of conviction is sufficient to negate a
defendant’s acceptance of responsibility for the crime. United
States v. Cooper, 912 F.2d 344, 346-48 (9th Cir. 1990). In
addressing this question of first impression with respect to
unrelated conduct, we hold that a district court may, in its dis-
cretion, consider criminal activity unrelated to the offense of
conviction in evaluating whether a defendant has voluntarily
withdrawn from criminal conduct for purposes of granting a
sentencing reduction for acceptance of responsibility.
Section 3E1.1(a) provides that the district court should
reduce the defendant’s offense by two levels “[i]f the defen-
dant clearly demonstrates acceptance of responsibility for his
offense.” U.S.S.G. § 3E1.1(a). The Application Notes provide
that the district court may consider, among other factors, a
defendant’s “voluntary termination or withdrawal from crimi-
nal conduct or associations” in determining whether the
defendant has accepted responsibility. U.S.S.G. § 3E1.1(a)
Application Note 1(b).
UNITED STATES v. MARA 4605
[2] We begin by noting that neither the text of U.S.S.G.
§ 3E1.1(a) nor the Application Notes restrict consideration of
criminal conduct to “related” criminal conduct or even to con-
duct of the same nature as the offense. The Application Notes,
which are a compilation of some, but not all, relevant consid-
erations in an acceptance of responsibility determination, are
written broadly. Finally, Application Note 5 counsels that the
sentencing judge is in a “unique position to evaluate a defen-
dant’s acceptance of responsibility.” The sentencing judge is
given significant latitude under the Guidelines to assess the
sincerity of a defendant’s claim of responsibility.
[3] As the Third Circuit noted, a sentencing judge should
not be bound to accept a defendant’s “mechanical plea” as a
genuine acceptance of responsibility where that plea is fol-
lowed by continued criminal acts. United States v. Ceccarani,
98 F.3d 126, 130 (3d Cir. 1996). Consideration of unrelated
conduct is not improper because “the defendant’s post-offense
conduct can shed significant light on the genuineness of a
defendant’s claimed remorse.” Id. at 129. That a defendant’s
continuing criminal conduct is different in nature, character,
or degree from the offense of conviction does not undermine
the fact that it is inconsistent with acceptance of responsibil-
ity.
Our decision today aligns us with eight of the nine other
circuits that have considered this issue. See United States v.
Arellano, 291 F.3d 1032, 1035 (8th Cir. 2002); United States
v. Prince, 204 F.3d 1021, 1023-24 (10th Cir. 2000); Cecca-
rani, 98 F.3d at 130; United States v. McDonald, 22 F.3d 139,
143-44 (7th Cir. 1994); United States v. Pace, 17 F.3d 341,
343 (11th Cir. 1994); United States v. Olvera, 954 F.2d 788,
793 (2d Cir. 1992); United States v. O’Neil, 936 F.2d 599,
600-01 (1st Cir. 1991); United States v. Watkins, 911 F.2d
983, 985 (5th Cir. 1990). Only the Sixth Circuit has held to
the contrary. See United States v. Morrison, 983 F.2d 730,
735 (6th Cir. 1993) (holding that subsequent illegal conduct
that is unrelated to the underlying offense cannot diminish a
4606 UNITED STATES v. MARA
defendant’s acceptance of responsibility for the crime of
which he was convicted).
[4] Because Mara engaged in continued criminal activity
following his conviction, the district court did not err in con-
cluding that he had not demonstrated the acceptance of
responsibility necessary to receive a reduced sentence under
U.S.S.G. § 3E1.1(a).1
[5] Mara also posits that the district court erred in relying
on hearsay statements contained in the police report. U.S.S.G.
§ 6A1.3(a) provides: “In resolving any dispute concerning a
factor important to the sentencing determination, the court
may consider relevant information without regard to its
admissibility under the rules of evidence applicable at trial,
provided that the information has sufficient indicia of reliabil-
ity to support its probable accuracy.” Here, the statements
contained in the report were sufficiently corroborated so as to
provide the requisite indicia of reliability. The district court
did not abuse its discretion in using the report to conclude that
Mara played a blameworthy role in the jailhouse conflict.
United States v. Ingham, 486 F.3d 1068, 1076-78 (9th Cir.
2007).
AFFIRMED.
1
In his reply brief, Mara raises for the first time the argument that the
district court erroneously believed that it had no authority to grant an
adjustment of his sentence for acceptance of responsibility. We decline to
address this issue as it was not raised in Mara’s opening brief. See United
States v. Mitchell, 502 F.3d 931, 953 n.2 (9th Cir. 2007).