                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-28-2004

USA v. Lucas
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2166




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                              NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                   Nos. 02-2166, 02-2182, 02-2183 and 02-2184


                        UNITED STATES OF AMERICA

                                         v.

                            DAVID ARTHUR LUCAS

                                              Appellant



                  On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
        (D.C. Crim. Nos. 00-cr-198-1, 00-cr-350-1, 01-cr-152-1, 01-cr-182-1)
                    District Court Judge: Honorable Yvette Kane



                    Submitted Under Third Circuit LAR 34.1(a)
                                January 15, 2004

          Before: SLOVITER, RENDELL and ALDISERT, Circuit Judges.

                            (Filed   January 28, 2004 )



                            OPINION OF THE COURT


ALDISERT, Circuit Judge.


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       This appeal by David A. Lucas requires us to decide whether his sentence should

be vacated and the proceedings remanded for a new sentencing hearing on whether he is

entitled to a reduction in offense level for acceptance of responsibility. The district court

had jurisdiction based on 18 U.S.C. § 3231. We have jurisdiction based on 28 U.S.C. §

1291 and 18 U.S.C. § 3742(a). We will affirm.

                                              I.

       Because we write exclusively for the benefit of the parties, who are familiar with

the facts and the proceedings in the district court, our discussion of the background will

be limited. Lucas pleaded guilty on August 23, 2001 to two counts of bank robbery in

violation of 18 U.S.C. § 2113(a), three counts of armed bank robbery in violation of 18

U.S.C. § 2113(d) and one count of brandishing a firearm during a crime of violence in

violation of 18 U.S.C. § 924(c). In connection with Lucas’ guilty pleas, the United

States agreed to recommend a three-point reduction in offense level for acceptance of

responsibility, but only “[i]f the defendant can adequately demonstrate this recognition

and affirmative acceptance of responsibility to the government[.]” (A. 23.)

       On March 6, 2002, the United States Probation Office submitted a Revised

Presentence Investigation Report (“PSIR”) detailing 22 separate instances of misconduct

by Lucas while in custody following his arrest in this case. Fourteen of these incidents

took place after Lucas entered into the plea agreement. While in custody awaiting

sentencing, Lucas was charged with striking correctional officers, striking other inmates,


                                              2
failing to follow safety and sanitation regulations, disobeying orders, disorderly conduct,

disrupting normal routine, destruction of property, theft of property and possession of

contraband, among other things. The PSIR did not recommend a reduction in offense

level, concluding that Lucas’ “violent and intimidating” conduct while in custody “is

inconsistent with acceptance of responsibility and that a reduction is unwarranted.”

(PSIR ¶ 117.)

       Lucas did not object to the conclusions of the PSIR, which determined that Lucas

had an offense level of 35. On April 12, 2002 he was sentenced to 292 months

imprisonment on the armed bank robbery counts and 240 months, to be served

concurrently, on the bank robbery counts. Additionally, he received a sentence of 120

months, to be served consecutively, on the count of brandishing a firearm during a crime

of violence.

       Lucas now argues that the sentencing proceedings were flawed because the

district court made no findings as to whether Lucas was entitled to a reduction in offense

level under U.S.S.G. § 3E1.1. Lucas also contends that the district court failed to adopt

the findings of the PSIR. Lucas argues that he ceased in-custody misbehavior after

February 10, 2002, two months before he was sentenced, and that he therefore

demonstrated his acceptance of responsibility after that date. He contends the case

should be remanded to the district court so he can demonstrate his eligibility for a

reduction to an offense level of 32.


                                             3
                                              II.

       Ordinarily we review the “district court’s factual determination of whether the

defendant is entitled to an acceptance of responsibility reduction in his sentence . . . on a

clearly erroneous standard.” United States v. Ceccarani, 98 F.3d 126, 129 (3d Cir.

1996). Additionally, because “[t]he sentencing judge is in a unique position to evaluate a

defendant’s acceptance of responsibility . . . the determination of the sentencing judge is

entitled to great deference on review.” Id. (quoting U.S.S.G. § 3E1.1 Application Note

5).

       Because Lucas did not raise before the district court his objection to the PSIR’s

failure to grant credit for acceptance of responsibility, we review the district court’s

sentencing in conformance with the conclusions of the PSIR for plain error. United

States v. Olano, 507 U.S. 725, 733-735 (1993); United States v. Mustafa, 238 F.3d 485,

492 (3d Cir. 2001).

                                             III.

       The record of the sentencing proceedings is in direct contrast with Lucas’

representations to us. The district court specifically stated: “The basis for the sentence is

as follows: The Court adopts the factual findings and guideline application in the

presentence report.” (A. 16.) Rule 32(i)(3)(A) of the Federal Rules of Criminal

Procedure provides that a sentencing court “may accept any undisputed portion of the

presentence report as a finding of fact.” The district court thus was entitled to and did


                                              4
adopt the PSIR’s factual determination that Lucas had not accepted responsibility.

       Lucas did not dispute, either in writing or verbally, the contents of the PSIR at any

time prior to or during the sentencing proceedings. Moreover, the district court did not

commit plain error in applying the facts to the then-applicable Sentencing Guidelines

acceptance of responsibility section, which states in relevant part:

       (a)    If the defendant clearly demonstrates acceptance of responsibility
              for his offense, decrease the offense level by 2 levels.

       (b)    If the defendant qualifies for a decrease under subsection (a), the
              offense level determined prior to the operation of subsection (a) is
              level 16 or greater, and the defendant has assisted authorities in the
              investigation or prosecution of his own misconduct . . . decrease the
              offense level by 1 additional level.

                                       Commentary

       Application Notes:

       1.     In determining whether a defendant qualifies under subsection (a),
              appropriate considerations include, but are not limited to, the
              following:
       ....
              (b)    voluntary termination or withdrawal from criminal conduct
                     or associations;
       ....

U.S.S.G. § 3E1.1 (2001).

       The PSIR sets forth in paragraphs 33-55 multiple instances of Lucas’ atrocious

behavior while in custody. The district court was entitled to consider the 22 instances of

serious institutional misconduct while awaiting the plea and sentencing. Section 3E1.1

of the Sentencing Guidelines expressly permits the sentencing court to consider, in

                                             5
addition to other factors, the defendant’s voluntary termination or withdrawal from

criminal conduct or associations in determining whether the defendant has accepted

responsibility.

       We have noted “that the defendant’s post-offense conduct can shed significant

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

The PSIR accounted for Lucas’ claimed remorse as well as his post-arrest misbehavior,

and thus Lucas’ contention that the district court failed to notice his belated acceptance

of responsibility after February 10, 2002, is without merit. Measured against the limited

review standard of plain error, we reject the contention that there was an error at

sentencing that requires the case to be remanded.

       We have considered all of the arguments advanced by the parties and conclude

that no further discussion is necessary. We note especially that Lucas’ point II

concerning the consecutive sentence for a violation of 18 U.S.C. § 924(c) has no merit.

       The judgment of the district court will be affirmed.




                                             6
TO THE CLERK:

    Please file the foregoing opinion.



                                  s/ Ruggero J. Aldisert
                                Circuit Judge




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