          United States Court of Appeals
                        For the First Circuit


No. 14-1688

                      UNITED STATES OF AMERICA,

                              Appellee,

                                  v.

                           MICHEL D'ANGELO,

                        Defendant, Appellant.



          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

              [Hon. Nancy Torresen, U.S. District Judge]


                                Before

                         Howard, Chief Judge,
                Torruella and Barron, Circuit Judges.



     David J. Van Dyke and Hornblower Lynch Rabasco & Van Dyke,
P.A., on brief for appellant.
     Renée M. Bunker, Assistant United States Attorney, and
Thomas E. Delahanty II, United States Attorney, on brief for
appellee.




                           October 6, 2015
           TORRUELLA, Circuit Judge.           Defendant-appellant Michel

D'Angelo ("D'Angelo") pleaded guilty to bank robbery, 18 U.S.C.

§ 2113(a), and was sentenced to 180 months' imprisonment, a

downwardly variant sentence.          He appeals the district court's

denial of credit for acceptance of responsibility under the United

States Sentencing Guidelines ("U.S.S.G.") § 3E1.1.               Finding no

error, we affirm.

                                 I.   Facts

           Because D'Angelo pleaded guilty, our discussion of the

facts is drawn from the change-of-plea colloquy, the unchallenged

portions of the Presentence Investigation Report ("PSR"), and the

transcript of the sentencing hearing.               See   United States    v.

Cintrón-Echautegui, 604 F.3d 1, 2 (1st Cir. 2010).

           On September 21, 2012, D'Angelo and his then-girlfriend,

Jennica   Miller   ("Miller"),    robbed     the   Kennebunk   Savings   Bank

("KSB") in Berwick, Maine.       D'Angelo entered the bank dressed as a

woman in a pink sweatsuit, wearing a wig and sunglasses, and

carrying a purse, while Miller called 9-1-1 and falsely reported

having just been stabbed by her boyfriend in a mobile home park in

an attempt to distract the police.1         D'Angelo carried a screwdriver

"he planned to display as a weapon if the bank tellers were not



1
   Shortly before the bank robbery, Miller also called 9-1-1 and
falsely reported having just been stabbed by her boyfriend behind
an outlet store. D'Angelo instructed Miller to place both of these
9-1-1 calls.

                                      -2-
compliant    with    his    demands."2         He   approached      a    bank    teller,

demanded cash, and -- according to the witnesses -- threatened to

set a bomb off if any alarm button was pressed.                     After obtaining

$1,298, D'Angelo fled the scene with Miller.

             Two days after the robbery, the police recovered a series

of items that had been discarded along the side of the road, less

than a mile away from the KSB. These included a bleach-soaked pink

sweatsuit,     a    wig,    and    a   screwdriver,         among       other    things.

Authorities later confirmed that these items belonged to Miller.3

A confidential informant and a family member identified the bank

robber depicted in KSB surveillance images as D'Angelo.

             D'Angelo      was    arrested     on   April    11,    2013,       for   bank

robbery.     On June 18, 2013, an indictment charged him and Miller

with bank robbery in violation of 18 U.S.C. § 2113(a) and aiding

and abetting such conduct in violation of 18 U.S.C. § 2.                        D'Angelo

initially pleaded not guilty, and filed two motions to suppress

evidence, which the government opposed.                  He then withdrew both

motions and, on February 13, 2014, entered a straight guilty plea.4

At his change-of-plea hearing, D'Angelo admitted to all the facts


2
   Although D'Angelo denies possessing a screwdriver during the
robbery, the district court found by preponderant evidence that he
did possess the screwdriver.
3
  Miller's DNA was found on the pink sweatsuit jacket and the wig.
Subsequently, Miller's mother identified the pink sweatpants and
purse worn by D'Angelo as belonging to her daughter.
4
    On January 14, 2014, Miller pleaded guilty as charged.

                                         -3-
stated   by    the   government   in    its   "Prosecution   Version,"   but

clarified that he did not intend to threaten anyone when he entered

the bank and could not recall doing so while inside.

              D'Angelo was held at the Cumberland County Jail ("CCJ")

from his arrest on April 11, 2013, until March 8, 2014, when he was

transferred to the Maine State Prison. Between April 11, 2013, and

February 13, 2014, while at the CCJ, D'Angelo violated several

rules, conduct which resulted in seven disciplinary actions. These

violations included: making intoxicants; possessing contraband;

refusing to provide a breath and/or urine sample; opening a secured

slider door; and possession of piercing/tattooing equipment, which

resulted in his reclassification from medium to maximum security

within the CCJ.       Another disciplinary action involved a verbal

interaction between D'Angelo and a correction officer in which

D'Angelo purportedly stated, "[i]f I receive twenty years as soon

as I return to this jail and my handcuffs are removed, I'm going to

break the jaw of the closest intake officer."

              On March 8, 2014, after he had pleaded guilty, D'Angelo

and a female inmate in the maximum-security wing of CCJ both jammed

the locks of their cell doors to prevent the doors from locking.

The female inmate then exited her cell, crossed to the male section

of the facility, and entered D'Angelo's cell, where they spent more

than three hours engaging in consensual sex before being discovered

by a guard.     Following this incident, D'Angelo cut himself and was


                                       -4-
placed on suicide watch before being transferred to the Maine State

Prison.

            During his time at CCJ, D'Angelo also sent several

letters to Miller, instructing her to write to him using a "bogus

name," providing her with a "script" of what to say if called to

testify in court, and telling her to "figure a way" to get their

cases severed. He suggested that Miller "get a psych eval[uation],

drug rehab, fucking pregnant, something, just stall," to get her

case "continued as long as possible" because "he need[ed]" to be

tried first.

            The PSR calculated a total offense level of thirty-two

for D'Angelo, broken down as follows: a base offense level of

twenty pursuant to U.S.S.G. § 2B3.1(a); a two-level increase for

taking property from a bank (U.S.S.G. § 2B3.1(b)(1)); a three-level

increase    for   possession   of    a   dangerous   weapon   (screwdriver)

(U.S.S.G.    §    2B3.1(b)(2)(E));       a   two-level   increase   for   his

aggravating role because he directed Miller to place false 9-1-1

calls to distract the police (U.S.S.G. § 3B1.1(c)); and a two-level

increase for his attempt to obstruct justice by influencing Miller

to commit perjury (U.S.S.G. § 3C1.1).          These calculations produced

an adjusted offense level of twenty-nine, but, because D'Angelo's

prior convictions rendered him a career offender (with a Criminal

History Category of VI),5 his adjusted offense level was thirty-


5
    D'Angelo had at least fifteen prior convictions.

                                     -5-
two.   The result was a Guidelines sentencing range ("GSR") of 210-

262 months, but the 240-month statutory maximum lowered that range

to 210-240 months.

           The PSR did not recommend a three-level reduction for

acceptance of responsibility pursuant to U.S.S.G. § 3E1.1 for

several reasons.     First, while D'Angelo provided the Probation

Officer with a written statement taking full responsibility for his

conduct, he denied any recollection of having threatened the bank

teller with a bomb.    Second, D'Angelo's conduct while at the CCJ

revealed no indication of repentance and demonstrated that he had

not ceased criminal conduct. Third, D'Angelo attempted to obstruct

justice through his letters to Miller.

           D'Angelo objected to the PSR's recommendations to apply

an obstruction of justice enhancement and to deny a § 3E1.1

reduction for acceptance of responsibility.            He argued that his

intention to put an end to a lifetime of criminality was evident

through his conscious decision to waive the suppression issues, his

guilty plea, and the fact that all his disciplinary actions while

incarcerated -- except for the sex incident -- occurred prior to

his guilty plea.   The PSR was not altered.

           Additionally,   in   a   motion   for   a   variant   sentence,

D'Angelo highlighted his troubled childhood -- including having

lost his father at age six to suicide, living with an abusive step-

father, and falling from the second story of a building and


                                    -6-
fracturing his skull, which "annihilated" the impulse control

center of his brain -- his history of mental-health diagnoses, and

alcohol and poly-substance abuse.

          At   his   sentencing   hearing,   D'Angelo   denied   that   he

possessed a screwdriver during the robbery. He also clarified that

he did not recall whether he made a bomb threat while at the bank,

and could neither confirm nor deny having done so.         In addition,

D'Angelo admitted that he committed the disciplinary violations

while incarcerated and that he "sent letters to [Miller] . . .

about spinning a web of lies to make their case more viable."

While he conceded that the letters constituted an obstruction of

justice and thus warranted the enhancement, he argued that he was

nevertheless entitled to credit for acceptance of responsibility

under § 3E1.1 because, except for the sex incident, everything else

occurred before he pleaded guilty and after that he "manned up" and

behaved as "a model person" for around four months. The government

opposed D'Angelo's request for credit under § 3E1.1 for essentially

the same reasons stated in the PSR.

          The district court stated that it would not consider or

hold "against him" the fact that D'Angelo did not recall making the

bomb threat because his lack of recollection could be due to

D'Angelo's brain injuries or adrenaline.       However, the court also

stated that the possession of the screwdriver would be considered

relevant conduct to the offense and found, based on Miller's


                                  -7-
testimony and the corroborating evidence,6 that the government

proved by preponderant evidence that he did have a screwdriver when

he robbed the bank.      It also found that D'Angelo's letters to

Miller warranted an obstruction of justice enhancement.               The

district court then denied the § 3E1.1 reduction for acceptance of

responsibility because D'Angelo did not admit to the offense's

relevant conduct (possession of the screwdriver), and because a

finding   of   obstruction    of   justice    generally   indicates   that

acceptance of responsibility should not be given unless it is an

extraordinary case and the district court did not consider this an

extraordinary case.    In addition, the district court referenced

D'Angelo's conduct while incarcerated at CCJ and found that he had

failed to withdraw completely from criminal conduct.

           The   district     court    adopted   the   PSR's   Guidelines

calculation, which yielded a GSR of 210-240 months (as reduced by

the 240-month statutory maximum).           Although the district court

denied the § 3E1.1 reduction for acceptance of responsibility, it

acknowledged that D'Angelo pleaded guilty, "gave up a suppression

motion," and significantly improved his behavior, for which he

"should get some credit" by means of a "variance."         In the court's

view, that was appropriate given D'Angelo's "mental health issues

and his brain trauma."       The sentencing judge then stated that he



6
  The screwdriver was found at the side of the road along with the
clothing used in the robbery.

                                      -8-
would give D'Angelo the equivalent of two points for acceptance of

responsibility by way of a variance. That produced a variant range

of 168-210 months.    After considering the advisory Guidelines, the

sentencing factors in 18 U.S.C. § 3553(a) -- especially the nature

and   circumstances    of   the   offense,     D'Angelo's    history   and

characteristics, and the need to protect the public -- the court

sentenced D'Angelo to 180 months' imprisonment followed by three

years of supervised release, restitution of $1,298, and a monetary

assessment fee of $100.     This appeal followed.

                            II. Discussion

          D'Angelo challenges the district court's determination

that he did not accept responsibility for his offense and, thus,

was not entitled to an offense-level reduction under § 3E1.1.

Although he concedes that an obstruction of justice enhancement was

appropriate based on his letters to Miller, he argues that credit

for acceptance of responsibility under § 3E1.1 "is not definitively

inconsistent   with    allegations   of      obstruction    of   justice."

Furthermore, D'Angelo alleges that he should not be denied credit

on account of conduct that occurred prior to his guilty plea.

          We review "a sentencing court's factbound determination

that a defendant has not accepted responsibility" for clear error.

United States v. Jordan, 549 F.3d 57, 60 (1st Cir. 2008); see also

United States v. Royer, 895 F.2d 28, 29 (1st Cir. 1990).           We will

not reverse unless we are "left with a definite and firm conviction


                                  -9-
that a mistake has been committed."              Brown v. Plata, 131 S. Ct.

1910, 1930 (2011) (internal quotation marks omitted); see also

Royer, 895 F.2d at 29.        Nevertheless, we conduct a plenary review

of any related legal questions, including interpretation of the

Sentencing Guidelines.           United States v. Deppe, 509 F.3d 54, 60

(1st Cir. 2007) (citing United States v. Talladino, 38 F.3d 1255,

1263 (1st Cir. 1994)).

                U.S.S.G. § 3E1.1 provides for a two-level reduction

"[i]f     the     defendant      clearly       demonstrates      acceptance   of

responsibility for his offense."7              U.S.S.G. § 3E1.1(a).       But a

defendant who enters a guilty plea is not automatically entitled to

this adjustment.       United States v. Franky-Ortiz, 230 F.3d 405, 408

(1st Cir. 2000).       Rather, the defendant must demonstrate "'candor

and authentic remorse' as opposed to mouthing a 'pat recital of the

vocabulary of contrition.'"         United States v. McLaughlin, 378 F.3d

35, 39-40 (1st Cir. 2004) (quoting Royer, 895 F.2d at 30).               He has

"the    burden    of   proving    his   entitlement    to   an   acceptance-of-

responsibility credit."           Franky-Ortiz, 230 F.3d at 408 (quoting

United States v. Ocasio-Rivera, 991 F.2d 1, 4 (1st Cir. 1993)).




7
   It also provides an additional reduction of one level if the
defendant qualifies for the two-level decrease, has an offense
level of sixteen or greater, and the government moves for an extra
reduction for his assistance to authorities. U.S.S.G. § 3E1.1(b).
However, this additional one-level reduction is not at issue here
because it is uncontested that the government was not going to file
any motion for a further reduction.

                                        -10-
             Application Note 4 to U.S.S.G. § 3E1.1 provides that

conduct     resulting    in   an     obstruction      of     justice   enhancement

ordinarily     indicates      that    the        defendant    has    not   accepted

responsibility for his criminal conduct, although it acknowledges

that there may be an extraordinary case in which an adjustment

under § 3E1.1 may apply despite a finding of obstruction of

justice.     U.S.S.G. § 3E1.1 cmt. n.4.               "In such instances, the

defendant    has   the   burden      of    proving    that    an    adjustment   for

acceptance of responsibility is warranted."                    United States v.

Maguire, 752 F.3d 1, 6 (1st Cir. 2014) (citing United States v.

Gonzales, 12 F.3d 298, 300 (1st Cir. 1993)).

             Although a case where both an obstruction of justice

enhancement and credit for acceptance of responsibility coexist is

"hen's-teeth rare," id., D'Angelo nonetheless claims that such is

his case.    He merely states that his case is extraordinary because

he "unambiguously acknowledged his wrongdoing and ceased criminal

activities at the point of his change-of-plea."                 His attempt falls

short. See id. (noting that the defendant's "on-the-spot admission

of his role in the surveilled drug sale, his divulgement of the

existence and location of the stash house, his consent to the

search of that structure and to the seizure of contraband from it,

his guilty plea, his compliance with the terms of his pretrial

release, and his avowals of contrition" did not compel a finding

that his case was extraordinary).


                                          -11-
            Here, the district court's finding that D'Angelo had

falsely denied possession of the screwdriver during the bank

robbery   cuts   against    D'Angelo's      claim   that   he   "unambiguously

acknowledged his wrongdoing."         D'Angelo does not argue that this

finding is clearly erroneous, see Royer, 895 F.2d at 29, and, based

on Miller's testimony and the corroborating evidence found along

the side of the road, it seems that he could not seriously do so.

In addition, contrary to D'Angelo's assertion that he "ceased

criminal activities at the point of his change-of-plea," the

district court found that criminal activity continued even beyond

his guilty plea, as evidenced by his involvement in the sex

incident.   Again, D'Angelo has failed to show that this finding is

clearly erroneous.         See id.    Thus, we will not overturn the

district court's decision.

            Furthermore, although the district court could have

relied on the obstruction of justice alone to deny D'Angelo credit

under § 3E1.1 given the lack of extraordinary features in this

case, it also premised its decision on D'Angelo's denial of

relevant conduct.      Application Note 1(A) to U.S.S.G. § 3E1.1

provides that "a defendant who falsely denies, or frivolously

contests, relevant conduct that the court determines to be true has

acted in a manner inconsistent with acceptance of responsibility."

U.S.S.G. § 3E1.1 cmt. n.1(A).        Based on Miller's testimony and the

corroborating evidence found along the side of the road, the


                                     -12-
district court found by a preponderance of the evidence that

D'Angelo possessed a screwdriver during the robbery and that he

displayed it as a weapon.       The district court also found that the

possession of a screwdriver was relevant conduct to the offense,

and that D'Angelo falsely denied it.         D'Angelo does not argue that

these determinations were clearly erroneous, and we see no reason

to conclude so.       See Royer, 895 F.2d at 29.        Thus, there was an

additional     ground    to   deny     him   credit    for    acceptance     of

responsibility.

             Finally, D'Angelo argues that only conduct subsequent to

his guilty plea is relevant and, therefore, he should not have been

denied credit on account of conduct that occurred prior to his

guilty plea.        D'Angelo's argument is contrary to our precedent,

which has allowed courts to consider a defendant's conduct after he

has been charged, regardless of whether said conduct took place

before or after the defendant pleading guilty.               See Jordan, 549

F.3d at 61 (holding that "a district court, in determining the

propriety vel non of an acceptance-of-responsibility credit, may

consider a defendant's commission of any post-indictment criminal

conduct, whether or not it bears a significant connection to, or

constitutes     a    significant     continuation     of,    the   offense   of

conviction"); McLaughlin, 378 F.3d at 38 (holding that "when a

defendant commits new offenses after having been charged and those

offenses reflect adversely on the sincerity of the defendant's


                                      -13-
avowed contrition, the sentencing court may treat the commission of

those offenses as an indication that the defendant has not accepted

responsibility for the original crime" (citing United States v.

Carrington, 96 F.3d 1, 9 (1st Cir. 1996))); United States v. Zanni,

No. 95-1126, 1995 WL 492971, at *2 (1st Cir. 1995) (holding that "a

defendant's . . . conduct, following the offense of conviction but

before a guilty plea, 'certainly could shed light on the sincerity

of a defendant's claims of remorse' and may be considered" (quoting

United States v. O'Neil, 936 F.2d 599, 600 (1st Cir. 1991))).

Thus, the district court properly considered D'Angelo's conduct

while incarcerated at the CCJ, all of which he admitted, and which

provided   yet   another   reason    for   denying   him   acceptance-of-

responsibility credit. See U.S.S.G. § 3E1.1 cmt. n.1(B) (providing

that "voluntary termination or withdrawal from criminal conduct or

associations" may be considered in determining whether a defendant

qualifies for credit under § 3E1.1); see also Jordan, 549 F.3d at

60.

                            III. Conclusion

           For the reasons elucidated above, we conclude that the

district court did not commit any error, much less clear error, in

denying D'Angelo a reduction for acceptance of responsibility.

Thus, his sentence is affirmed.

           AFFIRMED.




                                    -14-
