                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 15-1014
                                     ______________

                            UNITED STATES OF AMERICA,

                                             v.

                                     AMY JENKINS,
                                                Appellant
                                     ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                         (D.C. No. 4-13-CR-00219-001)
                     District Judge: Hon. Matthew W. Brann
                                 ______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    October 9, 2015
                                   ______________

              Before: SHWARTZ, KRAUSE, and COWEN, Circuit Judges.

                                (Filed: November 6, 2015)
                                     ______________

                                        OPINION*
                                     ______________

KRAUSE, Circuit Judge.




       *
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
       Amy Jenkins appeals the District Court’s judgment imposing sentence after

Jenkin’s guilty plea without credit for a three-level offense reduction for acceptance of

responsibility. The District Court based its denial on criminal conduct that Jenkins

allegedly committed after the entry of her guilty plea and for which she faced state

criminal charges that were dismissed before sentencing. We will affirm.

                                             I.

       On October 10, 2013, a grand jury indicted Jenkins on eight counts for harvesting

personal information from mail that she stole from residential mailboxes—almost 1,000

opened and unopened pieces—and using that information to open retail accounts and

incur unauthorized credit card and debit card charges. On May 19, 2014, Jenkins pleaded

guilty to two counts, theft of mail matter in violation of 18 U.S.C. § 1708 and fraud in

connection with access devices in violation of 18 U.S.C. § 1029, and she was released the

same day on an unsecured appearance bond and subject to conditions of release,

including that she not commit any other local, state or federal crime.

       While on pretrial release, Jenkins was arrested for two thefts that she allegedly

committed with her then-boyfriend, Nigel Correa. According to a complaint and police

affidavit, on June 28, 2014, Jenkins and Correa entered a convenience store in

Susquehanna Township in Dauphin County and purchased a $100 Visa gift card.

Claiming that he did not realize the card was valid only within the United States, Correa

then requested a cash refund and provided the store clerk not the active card but a second,

inactive Visa gift card that Jenkins secretly handed him while he waited in line. Because

store policy did not permit returns on gift cards, the store clerk called the manager, who

                                             2
on arrival recognized Correa as the individual who had used the same story to obtain a

refund on a gift card in December 2013.

       The Susquehanna Township police officer investigating the incident issued a press

release that included store surveillance photographs of Correa and Jenkins. Within a day,

a police officer in Lower Allen Township in Cumberland County contacted him to report

that the same two suspects had been caught on surveillance video at a Sears store

returning a coffeemaker without a receipt. About a week and a half later, the

Susquehanna Township police officer showed the convenience store manager a photo

array, and the manager positively identified Jenkins as the woman who had assisted

Correa.

       According to a second complaint and police affidavit, on June 29, 2014, when

attempting to return the coffeemaker with Correa, Jenkins presented to a Sears store clerk

a false or stolen Pennsylvania driver’s license bearing the name “Samantha

Steinbrenner,” and claimed that her married name was “Samantha Correa.” App. 106,

108. Jenkins and Correa received a Sears gift card for the return amount and persuaded

the store clerk to transfer the balance to a Visa gift card. Correa then asked to have a

pillow “scanned” to determine if the Visa gift card had been activated. App. 108. When

the store clerk refused, Correa and Jenkins left the store with the pillow without paying

for it and fled the area in the same vehicle. A Sears employee reported the theft of the

pillow and the suspected fraudulent return of the coffeemaker and noted that store staff

had recognized Jenkins and Correa from a local news broadcast covering the convenience

store incident in Susquehanna Township. The Sears employee provided the police with

                                             3
the receipt from the coffeemaker return transaction, which listed Correa’s name, along

with a phone number and Sunbury address listed for both Correa and a “Samantha

Correa.”

       A Lower Allen Township police investigator called the number listed on the

receipt and questioned Correa, who admitted being involved in the Sears incident but

denied knowing a woman named Samantha, stating that his girlfriend’s name was Amy.

The investigator discovered that Correa’s girlfriend was Amy Jenkins, who had a

Sunbury address and was listed as being on “[p]robation.” The investigator called

Jenkins’s probation officer, who identified the woman in pictures from the Sears incident

as Amy Jenkins.

       Arrest warrants were issued against Jenkins and Correa in Dauphin County and

Cumberland County for, among other things, theft by deception and identity theft, and on

July 18, 2014, a superseding violation report was filed in this case, alleging Jenkins had

violated the terms of her pretrial release. At a revocation hearing on August 7, 2014, the

Magistrate Judge considered the complaints and affidavits filed in connection with the

new state charges against Jenkins. Finding probable cause that Jenkins had committed

the offenses in violation of the condition of her supervision mandating that she not

commit a federal, state, or local crime while on release, the Magistrate Judge ordered that

Jenkins be detained pending sentencing. Jenkins filed a motion for review and revocation

of the detention order, which the District Court denied at a hearing on September 3, 2014

on the grounds that no condition or combination of conditions would ensure the safety of

the community. On November 19, 2014, the state charges against Jenkins were

                                             4
dismissed. Jenkins then filed a second motion challenging her detention. At a hearing on

December 12, 2014, the prosecution informed the District Court that according to the

state prosecutor who handled the Dauphin County case, there was sufficient evidence to

prosecute Jenkins on those charges, but they were dropped because her co-defendant,

who was viewed as the more culpable participant, had entered a guilty plea, and because

Jenkins was facing sentencing on more serious federal charges for mail fraud. The

District Court released her to home detention for the five days leading up to her

sentencing.

       In her sentencing memorandum and at her December 17, 2014 sentencing hearing,

Jenkins argued that she was entitled to a three-level reduction for acceptance of

responsibility on the basis of her guilty plea, as provided in her original draft Presentence

Investigation Report (PSR), and that this reduction should not have been removed on the

basis of state charges that were ultimately dismissed. 1 The reduction would have yielded

a prison term of 24 to 30 months. Adopting the Government’s position that although the

charges were dismissed, there was probable cause to believe Jenkins had committed the

state offenses, the District Court denied Jenkins the reduction as recommended by the

final PSR and calculated a criminal history category of three and an offense level of 18,

for a Guidelines imprisonment range of 33 to 41 months. Jenkins was sentenced to a

prison term of 36 months on each count, to be served concurrently, a two-year term of

       1
         At her sentencing, Jenkins also argued for a downward departure and a variance
based on her mental and physical health issues, her alleged diminished mental capacity
during the commission of the offense, the alleged overstatement of her criminal history,
and the totality of circumstances. The District Court’s rejection of these arguments as
grounds for a downward departure is not before us on appeal.
                                              5
supervised release, restitution, 50 hours of community service, and a $200 special

assessment.

                                             II.

       The District Court had jurisdiction under 18 U.S.C. § 3231, and we have

jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. Although we exercise

plenary review over the District Court’s interpretation of the Sentencing Guidelines,

whether a criminal defendant “clearly demonstrates acceptance of responsibility” for her

offense such that she is entitled to a reduction in her offense level under § 3E1.1 is an

“essentially factual” determination that we review for clear error. United States v. Ortiz,

878 F.2d 125, 128 (3d Cir. 1989). “When reviewing a district court’s denial of

acceptance of responsibility, we afford the district court great deference because the

sentencing judge is in a unique position to evaluate a defendant's acceptance of

responsibility.” United States v. Batista, 483 F.3d 193, 198 (3d Cir. 2007) (quoting

United States v. Boone, 279 F.3d 163, 193 (3d Cir. 2002)) (internal quotation marks

omitted).

                                            III.

       The District Court did not err in denying Jenkins a sentence reduction for

acceptance of responsibility under § 3E1.1 of the Sentencing Guidelines. The

Commentary to the Sentencing Guidelines provides a nonexhaustive list of factors that

may be considered in determining whether a defendant qualifies for this reduction in

offense level. These factors include “voluntary termination or withdrawal from criminal

conduct or associations.” U.S.S.G. § 3E1.1 cmt. 1(B). The Commentary further

                                              6
specifies that, although “[e]ntry of a plea of guilty prior to the commencement of trial

combined with truthfully admitting the conduct comprising the offense of conviction”

constitutes “significant evidence” weighing in favor of the reduction, “this evidence may

be outweighed by conduct of the defendant that is inconsistent with such acceptance of

responsibility.” Id. § 3E1.1 cmt.3. Accordingly, this Court has found that “[c]ontinual

criminal activity, even differing in nature from the convicted offense, is inconsistent with

an acceptance of responsibility and an interest in rehabilitation,” and that violating an

express condition incorporated into the court order releasing the defendant on bail may be

appropriately considered by the court in determining whether to grant a reduction in

offense level. United States v. Ceccarani, 98 F.3d 126, 130 (3d Cir. 1996).

       Here, the Government contended that there was probable cause to believe that,

while released on her own recognizance, Jenkins committed two fraud-related offenses

that were similar in nature to the federal offenses for which she faced sentencing, and

produced significant evidence to support that contention. The District Court reviewed the

complaints and sworn affidavits from law enforcement officers supporting Jenkins’s

participation in the June thefts—detailing eyewitness identification, surveillance footage,

the statements of her alleged co-conspirator, and the statements of her probation officer—

and appropriately found that Jenkins had persisted in her criminal conduct and

associations and therefore did not qualify for a reduction in offense level under § 3E1.1.

       Jenkins argues that the District Court should not have denied the reduction based

on state charges that were dismissed, and that the court’s consideration of offenses for

which she was arrested but which were not adjudicated amounted to an “unsupported

                                              7
assumption” in violation of her due process rights. Appellant’s Br. at 14-15. This

argument is without merit. Repeatedly, we have emphasized that “we require that

information used as a basis for sentencing under the Guidelines . . . have sufficient indicia

of reliability to support its probable accuracy,” United States v. Freeman, 763 F.3d 322,

337 (3d Cir. 2014) (alteration in original) (citation and internal quotation marks omitted);

see U.S.S.G. § 6A1.3(a). However, “facts that are considered at sentencing, as a general

matter, must be proved by a preponderance of the evidence,” not beyond a reasonable

doubt. United States v. Berry, 553 F.3d 273, 280 (3d Cir. 2009) (citing United States v.

Watts, 519 U.S. 148, 156 (1997) (per curiam)); see United States v. Grier, 475 F.3d 556,

568 (3d Cir. 2007) (en banc). As explained above, the Government’s evidence as to

Jenkins’s alleged commission of two state offenses more than meets this standard, and

the sufficiency of this evidence is not undermined by the mere fact that the charges were

dismissed. See Watts, 519 U.S. at 157 (a sentencing court may consider acquitted conduct

if demonstrated by a preponderance of the evidence); United States v. Baird, 109 F.3d

856, 864-65 (3d Cir. 1997) (extending Watts to conduct underlying dismissed counts

where the conduct is in character similar to the offense of conviction). Indeed, as the

Government explained at Jenkins’s sentencing hearing, at least some of the state charges

against Jenkins were dismissed only because her seemingly more culpable co-defendant

had entered a guilty plea and because Jenkins was already facing sentencing on more

serious charges in federal court.

       This case is readily distinguishable from our decision in United States v. Berry, in

which we held that “a bare arrest record” alone cannot justify a sentence increase, 553

                                             8
F.3d at 284, and rejected the sentencing court’s “unsupported speculation” about why

prior charges against the defendant may have been nol prossed, id. at 281. At issue in

this case is not a sentence increase but the denial of a sentence reduction. Moreover, here

the District Court had significantly more evidence than a “bare arrest record” to support

Jenkins’s involvement in fraud-related offenses while on pretrial release. Having been

provided this evidence, the District Court did not and needed not engage in speculation

about Jenkins’s background to determine that she did not qualify for a sentence reduction

for acceptance of responsibility.

                                            IV.

       Because the District Court did not err in denying Jenkins a three-level sentence

reduction for acceptance of responsibility, we will affirm its judgment.




                                             9
