                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-22-1996

United States v. Ceccarani
Precedential or Non-Precedential:

Docket 96-7026




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                      ____________________

                          NO. 96-7026
                      ____________________


                   UNITED STATES OF AMERICA,
                                         Appellee,

                                v.

                      ANGELO P. CECCARANI,
                                        Appellant.

                      ___________________

        An Appeal from the United States District Court
            For the Middle District of Pennsylvania
                     D.C. No. 95-cr-00148-2
                      ___________________

                   Argued September 20, 1996

       Before:   Nygaard, Roth, and Rosenn, Circuit Judges.

                 Opinion Filed October 22, l996
                        ____________________



John A. Bednarz, Jr. (argued)
15 Public Square
Suite 405
Wilkes-Barre, PA 18701
Counsel for Appellant



David M. Barasch, U.S. Attorney,
Bruce Brandler, Asst. U.S. Attorney (argued)
Middle District of Pennsylvania
Suite 309, Federal Building
Scranton, PA
Counsel for Appellee




                        ____________________
                       OPINION OF THE COURT
                       ____________________


ROSENN, Circuit Judge.
     This appeal raises an interesting question in which the
defendant complains that the United States District Court for the
Middle District of Pennsylvania has disregarded the Federal
Sentencing Guidelines in determining his sentence and he seeks
compliance with the Guidelines. The Government, on the other
hand, opposes his position and supports the court's refusal to
award a two-level reduction for acceptance of responsibility.
     The defendant had participated with two others in the
break-in of a department store and had stolen firearms and
ammunition. The defendant was arrested and charged in eight
counts of a seventeen count indictment with conspiracy to steal
and the theft of firearms from a licensed firearms dealer in
violation of 18 U.S.C. § 371 and §§ 922(u) and 2. Other counts
of the indictment charged him with disposal and possession of
firearms in violation of 18 U.S.C. § 922(j).
     The defendant initially pled not guilty to the charges but
ultimately entered into a guilty plea agreement with the
Government to Count II of the indictment (Theft from a Federal
Firearms Licensee, Aid and Abet). At his sentencing, the
defendant requested a two-level reduction in his offense level
for acceptance of responsibility pursuant to § 3E1.1 of the
United States Sentencing Guidelines ("U.S.S.G.").   The court
rejected this request because the defendant had tested positive
for marijuana and had refused to attend a court-ordered
rehabilitation program while on pre-trial release pending
sentencing. The defendant timely appealed. We affirm.

                                I.
     On January 15, 1995, the defendant participated in the
break-in of a department store in Wilkes-Barre, Pennsylvania,
stealing twenty-two handguns, one rifle, one shotgun, and twelve
boxes of ammunition. The defendant retained several of the
stolen firearms, some of which he later sold or gave away. On
January 25, 1995, a search of the defendant's residence uncovered
two handguns, six boxes of ammunition, and thirteen price tags
which had been removed from the stolen weapons. At this time,
the defendant confessed to his role in the theft.
     After arraignment, the defendant was released on bond with
pre-trial services supervision. According to the written
conditions of his pre-trial release, the defendant was not to
commit any federal, state, or local offense and he was ordered to
submit to drug testing and treatment as directed by the Probation
Office. The defendant tested for drug usage on seven occasions
between June 15 and September 20, 1995; five of those tests
yielded positive results for the presence of marijuana. The
defendant acknowledged having used marijuana during this time.
The pre-sentencing report ("PSR") recommended that the defendant
not receive a downward adjustment of his offense level for
acceptance of responsibility under United States Sentencing
Guideline ("U.S.S.G.") § 3E1.1 due to his continued marijuana use
while on pre-trial release.
     After the fifth positive test result, the defendant
underwent an evaluation at a drug and alcohol treatment center
and the evaluation recommended outpatient treatment. The
defendant, however, refused to attend outpatient treatment,
contending that he was unable to afford the sessions and had
difficulty obtaining transportation to the treatment site. The
probation officer, however, reported to the district court that,
based on his income and expenses, the defendant could afford
these sessions and that he had made no effort to explain his
transportation problems to anyone in the probation office.
     At the sentencing hearing, the district court judge
accepted the recommendation of the probation officer and denied
the defendant any acceptance of responsibility reduction due to
his conduct while on pre-trial release. The district court,
having determined that the defendant had an offense level of 14
and a criminal history category of II, sentenced him to eighteen
months imprisonment followed by two years of supervised release,
restitution of $3,425.01, and a special assessment.


                               II.
     The sole issue on appeal presented by the defendant is
whether the positive drug tests and the failure to participate in
the drug rehabilitation program that occurred post-indictment and
before sentencing, which he claims are wholly unrelated to the
crime charged, can be properly considered by the court in
determining an acceptance of responsibility reduction for a
specific offense. This presents an issue of first impression in
this court.
     Section 3E1.1(a) of the Sentencing Guidelines states: "If
the defendant clearly demonstrates acceptance of responsibility
for his offense, decrease the offense level by two levels."
U.S.S.G. § 3E1.1(a). The Commentary sets forth a number of
factors which may be considered in determining whether the
defendant has demonstrated an acceptance of responsibility under
§ 3E1.1. Among the considerations are:

     (a) truthfully admitting the conduct comprising the
     offense(s) of conviction, and truthfully admitting or
     not falsely denying any additional relevant conduct
     for which the defendant is accountable under § 1B1.3
     (Relevant Conduct). . . . ;
     (b) voluntary termination or withdrawal from criminal
     conduct or associations;
     (c) voluntary payment of restitution prior to
     adjudication of guilt;
     (d) voluntary surrender to authorities promptly after
     commission of the offense;
     (e) voluntary assistance to authorities in the
     recovery of the fruits and instrumentalities of the
     offense;
     (f) voluntary resignation from the office or position
     held during the commission of the offense;
     (g) post-offense rehabilitative efforts (e.g.,
     counseling or drug treatment); and
     (h) the timeliness of the defendant's conduct in
     manifesting acceptance of responsibility.
U.S.S.G. § 3E1.1 Application Note 1. The Guidelines make clear
that this list is not exhaustive.
     The defendant contends that he showed his intent to accept
responsibility for the charged offense by his cooperation with
the federal government, his consent to the search of his
residence, and his offer of full restitution; he specifically
points to his surrender to authorities promptly after the
offense, his assistance in the recovery of the firearms, and the
timely manifestation of his acceptance of responsibility. His
counsel vigorously urges that the defendant is entitled to a two-
point reduction under § 3E1.1(a).
     The Government counters that the court is entitled to
consider a broad range of information when deciding upon an
appropriate sentence, including the defendant's conduct while on
pre-trial release. Thus, if the defendant continues to engage in
criminal conduct, as he did here, and fails to comply with post-
offense rehabilitative efforts, the district court is well-within
its discretion to conclude that the defendant is not truly
remorseful and has not accepted responsibility for his offense.
     A district court's factual determination of whether the
defendant is entitled to an acceptance of responsibility
reduction in his sentence is reviewed on a clearly erroneous
standard. United States v. DeLeon-Rodriguez, 70 F.3d 764, 767
(3d Cir. 1995); United States v. Felton, 55 F.3d 861, 869 (3d
Cir. 1995). In addition, the Guidelines make clear that "[t]he
sentencing judge is in a unique position to evaluate a
defendant's acceptance of responsibility. For this reason, the
determination of the sentencing judge is entitled to great
deference on review." U.S.S.G. § 3E1.1 Application Note 5.
However, the question of whether the district court correctly
interpreted U.S.S.G. § 3E1.1 is a legal question and subject to
plenary review. United States v. Frierson, 945 F.2d 650, 655 (3d
Cir. 1991).
     Although this is an issue of first impression in our
jurisdiction, six other circuits have addressed this issue; five
of the six have held that the district court is entitled to
consider criminal conduct committed while the defendant is free
on bond and did not grant a reduction for acceptance of
responsibility. See United States v. Byrd, 76 F.3d 194, 196-97
(8th Cir. 1996) (upholding denial of acceptance of responsibility
where defendant used marijuana while awaiting a sentence for
assault with a dangerous weapon); United States v. McDonald, 22
F.2d 139, 144 (7th Cir. 1994) (affirming denial of acceptance of
responsibility where defendant used cocaine while awaiting
sentencing for counterfeiting); United States v. O'Neil, 936 F.2d
599, 600-01 (1st Cir. 1991) (upholding denial of acceptance of
responsibility where defendant used marijuana after committing
mail theft); United States v. Watkins, 911 F.2d 983, 984 (5th
Cir. 1990) (affirming denial of acceptance of responsibility
where defendant used cocaine while on release pending sentencing
for forgery); United States v. Scroggins, 880 F.2d 1204, 1215-16
(11th Cir. 1989), cert. den., 494 U.S. 1083 (1990) (holding that
"the district court acted well within its discretion in
concluding that appellant's continued use of cocaine cast doubt
on the sincerity of his avowed acceptance of responsibility" for
the underlying postal theft offense). But see United States v.
Morrison, 983 F.2d 730, 735 (6th Cir. 1993) (holding that
acceptance of responsibility considers only conduct related to
the charged offense).
     The common thread running through the five circuit cases
cited above holding that unrelated conduct can be considered
under § 3E1.1 is the notion that the defendant's post-offense
conduct can shed significant light on the genuineness of a
defendant's claimed remorse. As they have noted, § 3E1.1 does
not contain any restriction against considering criminal conduct
unrelated to the specific crime charged and, in fact, § 3E1.1
application note 1(b) suggests consideration by the court of the
defendant's "voluntary termination or withdrawal from criminal
conduct or associations." These five courts of appeal agree that
note 1(b) is phrased in general terms and should be interpreted
to include criminal conduct committed since the underlying
offense, even of a different character.
     In McDonald, 22 F.3d at 144, the court acknowledged that
while the defendant's continued criminal activity does not
preclude him from receiving a reduction for acceptance of
responsibility, it is properly considered by a sentencing judge
as it bears on the charged offense. A guilty plea in acceptance
of responsibility may be outweighed by conduct that is
inconsistent with such acceptance. "A district court may
conclude that continued criminal activity, such as use of a
controlled substance, is not consistent with acceptance of
responsibility." Id.
     Counsel for the defendant contends that § 3E1.1(a) of the
Guidelines directs that examination of the defendant's acceptance
of responsibility correlates only to conduct related to the
specific offense before the sentencing court, not to criminal
conduct in general. He cites United States v. Morrison, 983 F.2d
730 (6th Cir. 1993), where the defendant pled guilty to receipt
and possession of firearms by a felon. Morrison sought
mitigation of his sentence, asserting he accepted responsibility
by being candid and cooperative with authorities and his early
guilty plea. However, subsequent to the indictment and before
sentencing, he was arrested for stealing a truck, found to be in
constructive possession of firearms, and tested positive for a
controlled substance. The court noted that the language of §
3E1.1(a) had been changed from "affirmative acceptance of
personal responsibility for his criminal conduct" to "acceptance
of responsibility for his offense." Morrison, 983 F.2d at 735
n.1. The court considered this change significant and precluded
consideration of unrelated criminal conduct in the acceptance of
responsibility determination. The Morrison court believed that
an individual could be truly repentant for one crime and yet
commit other, unrelated crimes. Id. at 735
     We find the reasoning of McDonald and the other circuits
that held unrelated pre-sentencing conduct may be considered
under U.S.S.G. § 3E1.1 to be more persuasive. The language of §
3E1.1, particularly the factors which may be considered in
determining whether the defendant has in fact demonstrated an
acceptance of responsibility for his offense, is very general.
The language does not specify that the appropriate considerations
include only conduct related to the charged offense. Thus, the
Guidelines appropriately give the sentencing judge the discretion
to consider post-indictment unlawful conduct in determining
whether to grant the § 3E1.1 reduction for acceptance of
responsibility. We conclude that the Guideline change in
language did not deprive the sentencing court of all discretion
in considering the defendant's request for a reduction in the
level of his offense because of his claimed acceptance of
responsibility for the charged offense. A mechanical plea or
confession to an indictment or counts thereof does not
necessarily evince a genuine sense of remorse or intent to pursue
lawful conduct. The Commentary to the Guidelines referred to
above recognize that the sentencing judge will still retain a
reasonable amount of discretion despite the change in the
Guideline language. Among factors to be considered by the judge
are not only the truthful admission by the defendant of the
conduct compromising the offense(s) but also his or her voluntary
termination or withdrawal from criminal conduct and post-offense
rehabilitation efforts. These bear on an important aspect of any
criminal sentence -- the defendant's genuine feeling of remorse
and his or her rehabilitation efforts. Continual criminal
activity, even differing in nature from the convicted offense, is
inconsistent with an acceptance of responsibility and an interest
in rehabilitation.
     A significant factor in the instant case are the conditions
incorporated in the order of the court releasing the defendant on
bail. One of these conditions obligated the defendant not to
commit any offense in violation of federal, state or local law
while on release. This term was an express condition of the
defendant's pre-trial release and, when violated, constituted
grounds for revocation of bail. Thus, violation of this
condition could be appropriately considered by the district court
in determining whether the defendant should be granted a
reduction in his offense level.
     Another condition required defendant to submit to drug
testing and/or treatment as directed by the probation office. At
the time, Ceccarani refused counseling for his drug habit; he
represented that he couldn't afford the $30 per visit counseling
fee, although he was earning about $1000 per month with necessary
expenses of only $200 per month. Application Note 1(g) permits
the court to consider the defendant's post-rehabilitative efforts
in weighing his acceptance of responsibility. If a defendant's
efforts to obtain rehabilitation can be considered in his favor,
certainly a defendant's refusal to enter drug counseling, even
when directed to do so by court order, may be considered as an
unfavorable factor in determining whether the defendant is
entitled to a reduction in his offense level for accepting
responsibility for the convicted offense. We therefore hold that
a sentencing judge may, in the exercise of his discretion,
consider unlawful conduct committed by the defendant while on
pre-trial release awaiting sentencing as well as any violations
of the conditions of this pre-trial release in determining
whether the court should grant a reduction in the offense level
for acceptance of responsibility under U.S.S.G. § 3E1.1(a).
     In the instant case, the defendant tested positive on five
separate occasions while out on bail and rejected the opportunity
for drug counseling and treatment, displaying arrogance and
defiance of the court and the law. This entitled Chief Judge
Kosik, an experienced and able trial judge, in the exercise of
his discretion, to reject the requested reduction. Therefore,
having determined that the positive drug tests and the refusal to
enter rehabilitation were appropriate factors for the district
court to consider under § 3E1.1, we cannot conclude that the
district court's determination that the defendant was not
entitled to an acceptance of responsibility reduction was clearly
erroneous.

                               III.
     Accordingly, the judgment of the district court will be
affirmed.
