                                                   NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 10-2430
                                   _____________

                          UNITED STATES OF AMERICA

                                             v.

                              WILLIAM CARTHENS,
                                                Appellant.
                                _______________

                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                            (D.C. No. 5-09-cr-00740-001)
                     District Judge: Hon. James Knoll Gardner
                                 _______________

                                          Argued
                                       April 13, 2011

              Before: FISHER, JORDAN and COWEN, Circuit Judges.

                                (Filed: May 10, 2011)
                                  _______________

Robert Epstein [ARGUED]
Nina C. Spizer
Defender Association of Philadelphia
Federal Court Division
601 Walnut Street - #540 West
Philadelphia, PA 19106
      Counsel for Appellant
Anita D. Eve [ARGUED]
Robert A. Zauzmer
Office of United States Attorney
615 Chestnut Street - #1250
Philadelphia, PA 19106
      Counsel for Appellee
                                    _______________

                               OPINION OF THE COURT
                                   _______________

JORDAN, Circuit Judge.

       William Carthens appeals the judgment of the United States District Court for the

Eastern District of Pennsylvania sentencing him to 24 months’ imprisonment, three years

supervised release, and $2,200 in fines and assessments for possession of and passing

counterfeit United States currency in violation of 18 U.S.C. § 472. Carthens asserts that

the District Court erred by not awarding him a two-level reduction for acceptance of

responsibility pursuant to U.S.S.G. § 3E1.1. In Carthens’s view, the Court impermissibly

relied on his arrest on unrelated charges months after he pled guilty in this case. Because

the District Court did not adequately articulate its basis for denying Carthens a reduction

for acceptance of responsibility, we will vacate and remand for resentencing.

I.     Factual Background

       In July 2009, William Carthens was arrested after using counterfeit United States

currency for various purchases. He was subsequently indicted for possession of and

passing counterfeit currency in violation of 18 U.S.C. § 472, and he pled guilty on

January 22, 2010, without a written plea agreement. The United States Probation Office

issued a Presentence Investigation Report (“PSR”) that calculated Carthens’s adjusted


                                             2
offense level to be 8, after a recommended two-level reduction for acceptance of

responsibility. Combined with a calculated criminal history category of IV, Carthens’s

Guidelines range called for 10 to 16 months’ imprisonment.

       Later, on April 20, 2010, while on bail pending sentencing, Carthens was arrested

for wrongful impersonation, credit card theft, and fraudulent use of a credit card. He had

allegedly attempted to use a credit card issued in someone else’s name to purchase two

pairs of shoes at a department store. Shortly thereafter, the Probation Office sent a letter

to the Court regarding the new charges against Carthens. Bearing the caption “Violation

of Pretrial Release Condition” 1 (App. at 109), the letter informed the Court that an

investigating detective had told the Probation Office both that the evidence “includes

witness identification” and that “the defendant is seen on video tape.” (Id.) The letter

also included a copy of the criminal complaint setting forth the new charges. On May 7,

2010, the Probation Office issued a revised PSR which recommended against a two-point

reduction for acceptance of responsibility in light of the alleged credit card fraud. 2 In the

revised PSR, the Probation Office calculated a new Guidelines range for Carthens of 21

to 27 months’ imprisonment.


   1
     The District Court indicated that Carthens would have violated his bail conditions
only by committing the credit card fraud, not by being arrested for it. Whether Carthens
violated a condition of his release is not at issue on appeal because the District Court did
not rely on any such violation in imposing sentence.
   2
     The revised PSR also recalculated Carthens’s criminal history category to be V,
based on additional information about one of Carthens’s prior convictions. That
recalculation is not challenged on appeal. If Carthens had been granted a two-level
reduction for acceptance of responsibility, his Guidelines’ range would have been 15 to
21 months’ imprisonment with a criminal history category of V.

                                              3
       At his sentencing hearing, which spanned part of a Friday and the following

Monday, Carthens objected to the Probation Office’s conclusion that, though he had pled

guilty, he was not entitled to a two-point offense level reduction for acceptance of

responsibility. Addressing the objection, the District Court at first said that, since

Carthens had “presented no evidence at th[e] hearing to support the request, [Carthens]

ha[d] failed to establish by a fair preponderance of the evidence or by any standard of

proof, that [he] is entitled to receive the downward adjustment.” (App. at 188.)

       The Court then stated an alternative basis for denying the requested reduction. It

noted that the burden was on Carthens to show that he was entitled to an adjustment for

acceptance of responsibility and then said that “[Carthens’s] arrest on credit card fraud

and identification charges … [was] sufficient evidence to satisfy [the Court] that [he] –

by a fair preponderance of the evidence [–] … did not withdraw from criminal conduct or

associations,” even taking as true his cooperation with prosecutors. (Id. at 192-93.)

       After reaching that conclusion, the Court turned to yet another alternative ground

for its holding. The Court said that, in addition to the record of the arrest, there was a

security video that captured Carthens and his friend committing the credit card fraud, or

“at least it captured [Carthens] being there doing it.” (Id. at 193.) Relying on the

reported content of the video, the Court concluded that Carthens had “not withdrawn

from criminal associations, as association with someone else committing a crime while

[Carthens] was with him” because, even if Carthens’s “version is correct,” i.e., even if his

friend was the one perpetrating the fraud, “[Carthens] was guilty of associating with the

criminal who did commit that crime.” (Id.) The Court held that that finding was

                                              4
“sufficient … to deny the two-level downward adjustment for the acceptance of

responsibility.” (Id.)

          After stating its grounds for not awarding the two-level reduction for acceptance

of responsibility, the Court adjourned the sentencing hearing for the weekend and

resumed it the following Monday. On that second day, the Court sentenced Carthens to

24 months’ imprisonment, three years supervised release, and $2,200 in fines and

assessments. Among other things, the Court stated:

          Mr. Cartherns (sic) has sought to justify or minimize his actions by blaming
          it on the economy. But other than that, I believe he is fully accepting of the
          responsibility for his actions and is remorseful and has apologized to the
          Court. I believe, therefore, that this sentence will be sufficient but not
          greater than necessary to reflect the seriousness of this offense and promote
          respect for the law and provide just punishment.

(Id. at 282-83.)

          Carthens timely appealed his sentence, specifically challenging the Court’s ruling

on acceptance of responsibility.

II.       Sentencing Procedure and Standard of Review 3

          District courts follow a now-familiar three-step process in sentencing. First, the

court calculates the applicable Guidelines range. United States v. Tomko, 562 F.3d 558,

567 (3d Cir. 2009) (en banc). Second, it states how any motion for departure it grants

will affect the Guidelines calculation. Id. Third, it considers the § 3553(a) factors and




      3
    The District Court possessed subject matter jurisdiction pursuant to 18 U.S.C.
§ 3231. We have jurisdiction to review the sentence imposed on Carthens pursuant to 18
U.S.C. § 3742.

                                                5
determines the appropriate sentence, which may vary upward or downward from the

Guidelines range. 4 Id.

       Our review of a criminal sentence “proceeds in two stages.” Id. First, we review

for procedural error, “such as failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a)

factors, selecting a sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence – including an explanation for any deviation from the

Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007). If we find procedural

error “our preferred course is to remand the case for re-sentencing, without going any

further.” United States v. Merced, 603 F.3d 203, 214 (3d Cir. 2010). Second, we review

for substantive reasonableness, and “we will affirm [the sentence] unless no reasonable

sentencing court would have imposed the same sentence on that particular defendant for

the reasons the district court provided.” Tomko, 562 F.3d at 568. At both the procedural

and substantive stages, we review for abuse of discretion. United States v. Wise, 515

F.3d 207, 217-18 (3d Cir. 2008).

       Under U.S.S.G. § 3E1.1, a defendant bears the burden of demonstrating by a

preponderance of the evidence that he is entitled to a reduction in his offense level for

“clearly demonstrat[ing] acceptance of responsibility for his offense”. United States v.



   4
      As a matter of terminology, a “departure” refers to a deviation from the step-one
Guidelines calculations based on provisions within the Guidelines themselves and results
in a change to the recommended Guidelines range. A “variance,” by contrast, refers to a
deviation from the recommended Guidelines range based on the statutory factors outlined
in § 3553(a). Tomko, 562 F.3d at 562 n.3.

                                              6
Muhammad, 146 F.3d 161, 167 (3d Cir. 1998) (internal quotation marks omitted). “[T]he

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.’” United States v. Ceccarani,

98 F.3d 126, 129 (3d Cir. 1996) (quoting U.S.S.G. § 3E1.1 app. note 5). Accordingly,

we review for clear error a district court’s factual determination of whether a defendant

has met the burden to show that acceptance of responsibility. Id. However, the question

of whether certain evidence may be used to meet that burden is a legal question subject to

plenary review. Id. Furthermore, if a court fails to adequately “articulate the reasons

underlying its decision” on a factual question, “we will vacate [the] sentence and remand

for resentencing” since “there is no way to review [the court’s] exercise of discretion.”

United States v. Negroni, --- F.3d ---, 2011 WL 1125854, *7 (3d Cir. 2011) (internal

quotations omitted).

III.   Discussion

       The District Court stated three alternative grounds for its decision to deny

Carthens a two-level reduction for acceptance of responsibility. First, the Court said that

Carthens had presented no evidence to show that he was entitled to such a reduction.

Second, the Court appears to have held that, even if it recognized Carthens’s plea and

cooperation with authorities as evidence of acceptance of responsibility, his arrest was

sufficient evidence for finding that he had not shown acceptance of responsibility. Third,

the Court appeared to say that the presentence report and other information from the

Probation Office – the videotape showing Carthens at the department store and

                                             7
eyewitnesses testimony linking him to the credit card fraud – was sufficient to show that

he did not accept responsibility.

       The first of those alternatives is based on an erroneous understanding of what

constitutes evidence of acceptance of responsibility. Carthens’s plea and uncontested

admission to prosecutors of his role in the counterfeiting scheme is, by law, evidence on

which he could rely to demonstrate acceptance of responsibility. 5 The commentary to

§ 3E1.1 of the Guidelines makes clear that “[a] defendant who enters a guilty plea is not

entitled to an adjustment under this section as a matter of right,” U.S.S.G. § 3E1.1 App.

note 3, but the commentary also specifically directs courts to consider whether a

defendant “truthfully admit[s] the conduct comprising the offense(s) of conviction,”

U.S.S.G. § 3E1.1 App. note 1(A), and it further states that “[e]ntry of a plea of guilty

prior to the commencement of trial combined with truthfully admitting the conduct

comprising the offense of conviction, and truthfully admitting or not falsely denying any

additional relevant conduct ... will constitute significant evidence of acceptance of

responsibility.” U.S.S.G. § 3E1.1 App. note 3. In fact, the original PSR in this case

recommended that Carthens be awarded a two-level reduction for acceptance of

responsibility based on his “guilty plea and his truthful statements to the government.”

(Original PSR at ¶ 14.)

       The Court’s rationale for its second alternative ground – that an arrest alone serves

to totally undermine acceptance of responsibility – is, on this record, likewise legally

   5
      The government conceded at sentencing that Carthens pled guilty and described his
role in the underlying counterfeiting offense to prosecutors.

                                             8
erroneous. It is undisputed that a “defendant’s post-offense conduct can shed significant

light on the genuineness of a defendant’s claimed remorse.” Ceccarani, 98 F.3d at 129.

In United States v. Berry, however, we vacated the sentences of two individuals and held

that “a bare arrest record – without more – does not justify an assumption that a

defendant has committed other crimes and it therefore can not [sic] support increasing

his/her sentence in the absence of adequate proof of criminal activity.” 553 F.3d 273,

284, 286 (3d Cir. 2009).

       Even though, in Berry, we supported our decision with cases that involved upward

departures, our holding, by its terms, applies more broadly. Id. at 284 (“[C]onsiderations

of fairness and due process apply whenever a sentence is increased. It is the fact of the

increase based upon inadequate evidence, not the mechanism by which the increase is

accomplished that offends due process. A defendant cannot be deprived of liberty based

upon mere speculation.”). We said that “unsupported speculation about a defendant’s

background is problematic whether it results in an upward departure, denial of a

downward departure, or causes the sentencing court to evaluate the § 3553(a) factors with

a jaundiced eye.” Id. at 281. We were careful to note, however, that “appellate courts

do permit consideration of the underlying conduct where reliable evidence of that

conduct is proffered or where the PSR adequately details the underlying facts without

objection from the defendant.” Id. at 284. In that vein, we also said that a bare arrest

record could support a sentencing enhancement in limited circumstances in which the

records of arrest themselves may indicate reliability. “[T]here may be situations where

the number of prior arrests, and/or the similarity of prior charges to the offense of

                                              9
conviction, becomes so overwhelming and suggestive of actual guilt that they become

exceedingly difficult to ignore.” Id. “For example, … [the Seventh Circuit] thought that

23 prior arrests was probative of underlying criminality even though none of those arrests

resulted in convictions.” Id.

       The District Court here relied solely on the record of Carthens’s arrest to find that

he had not met his burden of showing that he accepted responsibility. That record of

arrest by itself, however, is not “so overwhelming and suggestive of actual guilt” as to be

controlling.” Id.

       Setting aside the District Court’s first two grounds as erroneous, we are left with

the Court’s third ground for denying credit for acceptance of responsibility, i.e. that there

is other evidence, besides the arrest record, indicating that Carthens engaged in criminal

conduct or associated with someone while that person committed a criminal act. Had the

District Court plainly ruled on that basis, we could perhaps affirm, 6 but we are confronted

with the District Court’s perplexing statement on the second day of sentencing that, other

than blaming his actions on economic conditions, Carthens was “fully accepting of the

responsibility for his actions and … remorseful.” (App. at 282-83.) After finding that



   6
     On remand, the District Court should clarify its reasoning with respect to its
conclusions regarding Carthens’s acceptance of responsibility. Specifically, it would be
helpful for the Court to explain whether it considered and was persuaded by the evidence
before it, namely the state charging document, the video surveillance tape, any
eyewitness statements or reports of such statements, and Carthens’s own assertion that he
was present at the store when the crime was committed. See United States v. Hawk Wing,
433 F.3d 622, 628 (8th Cir. 2006) (holding that before an arrest record can be considered
in imposing an upward departure, the PSR “must also provide specific facts underlying
the arrests,” rather than “a mere record of arrest[s]”).

                                             10
Carthens had not accepted responsibility, the District Court appeared to say, to the

contrary, that Carthens had in fact accepted responsibility for his actions. The

inconsistency requires some explanation so that a definitive ruling on acceptance of

responsibility is available for review.

IV.    Conclusion

       Although the denial of the two-level reduction for acceptance of responsibility

might be justifiable on this record, the District Court’s legal errors and contradictory

statements regarding Carthens’s acceptance of responsibility prevent us from

understanding the basis for the denial. We will therefore “remand the case for re-

sentencing, without going any further.” Merced, 603 F.3d at 214.




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