                            United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 96-3037
                                     ___________

United States of America,                 *
                                          *
               Appellee,                  *
                                          * Appeal from the United States
          v.                              * District Court for the
                                          * District of Minnesota.
Kymm Elizabeth Hipenbecker,               *
                                          *
               Appellant.                 *
                                     ___________

                            Submitted:  February 13, 1997
                                              Filed:   June 4, 1997
                                     ___________

Before MAGILL,1 BEAM, and LOKEN, Circuit Judges.
                               ___________

MAGILL, Circuit Judge.

      Kymm E. Hipenbecker pled guilty in the district court2 to the theft
and conversion of an annuity and a certificate of deposit, in violation of
18 U.S.C. § 2314 (1988 & Supp. III 1991). While free on bond prior to her
sentencing, Hipenbecker embezzled funds from her employer.         Because
Hipenbecker committed this crime while




      1
    The Honorable Frank J. Magill was an active judge at the time this case was
submitted and assumed senior status on April 1, 1997, before the opinion was filed.
  2
   The Honorable James M. Rosenbaum, United States District Judge for the District
of Minnesota.
free on bond, the district court during sentencing declined to make a
U.S.S.G. § 3E1.1 acceptance-of-responsibility downward sentencing
adjustment and also made a U.S.S.G. § 5K2.0 upward sentencing departure.
Hipenbecker appeals her sentence, arguing that the district court
impermissibly double counted by both applying § 5K2.0 and declining to
apply § 3E1.1. The issue is one of first impression in our circuit and we
affirm.

                                    I.

      On August 6, 1990, Hipenbecker and her husband bought George and
Nancy Walker’s home in Minnesota.       After the Hipenbeckers had taken
possession of the home, Great Westlife and Annuity Insurance Company (Great
Westlife) mistakenly sent a letter concerning an annuity held by George
Walker to the Hipenbecker residence. On August 2, 1991, Hipenbecker wrote
a letter to Great Westlife.     In the letter, Hipenbecker forged George
Walker’s signature and requested that Great Westlife make a wire transfer
of George Walker’s annuity proceeds to Hipenbecker's bank account. As a
result, Great Westlife transferred $49,889.83 into Hipenbecker’s account.

      In late 1991, Hipenbecker forged George Walker’s name on a power of
attorney document and then converted to her possession a certificate of
deposit in the amount of $19,260.92 held by George Walker. On January 8,
1992, Hipenbecker forged the signatures of both George and Nancy Walker on
a deed for real property. Hipenbecker then sold the real property and kept
the $79,410.50 in proceeds. In all, Hipenbecker stole $148,561.25.

      On November 8, 1993, the Hennepin County, Minnesota prosecutor’s
office charged Hipenbecker with the crime of wrongful sale and conversion
of the Walkers' real property. She was not charged with conversion of the
annuity proceeds or the certificate of deposit at that time, presumably
because those crimes had not yet been




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discovered. Hipenbecker pled guilty to the charge in Minnesota state court
on March 2, 1994, and she was sentenced to forty-five months imprisonment.
Hipenbecker served twenty months at the Minnesota Correctional Facility at
Shakopee, Minnesota.

      While still serving her state sentence, Hipenbecker was interviewed
by the Federal Bureau of Investigation. During the interview, Hipenbecker
confessed to converting George Walker's annuity and certificate of deposit
to her own use. On December 20, 1995, Hipenbecker pled guilty in the
district court to having committed these two offenses, in violation of 18
U.S.C. § 2314.

      The district court and the parties agreed that, under the sentencing
guidelines, Hipenbecker's relevant conduct included the theft and
conversion of the Walkers’ annuity, the theft and conversion of the
certificate of deposit, and the conversion of the Walkers' real property.
Because Hipenbecker's federal sentence was increased due to her state court
conviction for the January 1992 real property conversion, and because she
had already served twenty months for this conviction, the parties and the
district court agreed to reduce Hipenbecker’s federal sentence, pursuant
to U.S.S.G. §§ 5G1.3(b) and 5K2.0, by twenty months.

      Pending sentencing in federal court, Hipenbecker was released on
bond. While free on bond, Hipenbecker became employed by the Minnesota
Association of Community Organizations for Reform Now (ACORN). Soon after
being hired, Hipenbecker embezzled approximately $1500 from ACORN. Upon
learning of Hipenbecker’s latest crime, the district court revoked
Hipenbecker's bond and informed her that the district court was
contemplating an upward sentencing departure.

      The district court held a sentencing hearing on July 30, 1996. At
the sentencing hearing, the district court found that Hipenbecker had
embezzled funds from ACORN while she was free on bond. Because of her
continued criminal conduct while free on bond, the district court made a
U.S.S.G. § 5K2.0 two-point upward departure. Also




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because of Hipenbecker’s continued criminal conduct while free on bond, the
district court denied Hipenbecker’s request for a U.S.S.G. § 3E1.1 two-
point sentence reduction for acceptance of responsibility.

      Having imposed a § 5K2.0 upward departure and having declined to make
a § 3E1.1 downward adjustment for acceptance of responsibility, the
district court found that Hipenbecker had an offense level of 17 and a
criminal history category of V. Hipenbecker's sentencing guidelines range,
after subtracting the twenty-month reduction for the time she had served
in state prison, was twenty-six to thirty-seven months. The district court
sentenced Hipenbecker to thirty-six months imprisonment to be followed by
three years of supervised release and a special assessment fee of $50.
Hipenbecker appeals.

                                   II.

      Hipenbecker argues that the district court impermissibly double
counted when it sentenced her because, based on her single act of
embezzling while out on bond, the district court both imposed a U.S.S.G.
§ 5K2.0 upward departure and denied her request for a U.S.S.G. § 3E1.1
acceptance-of-responsibility downward adjustment. We disagree.

      Double counting occurs when “one part of the Guidelines is applied
to increase a defendant’s punishment on account of a kind of harm that has
already been fully accounted for by application of another part of the
Guidelines.” United States v. Alexander, 48 F.3d 1477, 1492 (9th Cir.)
(quotations and citations omitted), cert. denied, 116 S. Ct. 210 (1995).
However, double-counting is permissible if (1) the Commission intended the
result and (2) each statutory section concerns conceptually separate
notions relating to sentencing. See United States v. Saffeels, 39 F.3d
833, 836 (8th Cir. 1994). We review de novo whether a district court
impermissibly double




                                    -4-
counted in applying the sentencing guidelines.      See United States v.
Lamere, 980 F.2d 506, 510 (8th Cir. 1992).

      Whether it is permissible for a district court, based on a
defendant’s single criminal act, both to impose a § 5K2.0 upward departure
and to deny the defendant’s request for a § 3E1.1 downward adjustment is
an issue of first impression in this Circuit.       The Eleventh Circuit,
however, has addressed this issue in United States v. Aimufua, 935 F.2d
1199 (11th Cir. 1991), and we find the Aimufua court’s reasoning
persuasive.

      Turning to the first prong of the double counting test, whether the
Commission intended the result, we must consider whether the Commission
intended that a district court could both impose a § 5K2.0 upward
sentencing departure and impose another provision of the sentencing
guidelines based on the same conduct.     We agree with the Aimufua court
that the Commission intended this result, id. at 1201, because the policy
statement for § 5K2.0 specifically provides that “the court may depart from
the guidelines, even though the reason for departure is taken into
consideration in the guidelines (e.g. as a specific offense characteristic
or other adjustment), if the court determines that, in light of unusual
circumstances, the guideline level attached to that factor is inadequate.”
U.S.S.G. § 5K2.0, p.s.

      Thus, because § 5K2.0 contemplates the simultaneous consideration of
factors that may be considered elsewhere in the computation of a
defendant’s sentencing guideline range, the Commission must have
contemplated double counting when it created § 5K2.0. As a result, any
double counting that might occur by the joint application of § 5K2.0 and
§ 3E1.1 was intended.

      We next consider whether the Commission intended that a district
court could both decline to grant a § 3E1.1 downward sentencing adjustment
and impose another sentencing guidelines section based on the same conduct.
We agree with the Aimufua




                                    -5-
court that "section 3E1.1 in its commentary permits the use of the same
conduct to trigger two separate guideline sections." Aimufua, 935 F.3d at
1201.

      In Hipenbecker’s case, embezzlement, like all criminal conduct, is
one factor that could determine her appropriate criminal history category
under Chapter Four of the sentencing guidelines--a calculation that must
be performed for every criminal defendant who is sentenced under the
sentencing guidelines.     At the same time, the commentary to § 3E1.1
provides that evidence of acceptance of responsibility “may be outweighed
by conduct of the defendant that is inconsistent with such acceptance of
responsibility.” U.S.S.G. § 3E1.1, comment. (n.3). Under the sentencing
guidelines, “conduct of the defendant that is inconsistent with such
acceptance of responsibility,” id., includes further criminal conduct. See
U.S.S.G. § 3E1.1, comment. (n.1(b)).

      Section 3E1.1 does not indicate that criminal conduct already
considered in determining the defendant’s criminal history category under
Chapter Four of the sentencing guidelines cannot also be considered under
§ 3E1.1. Instead, both § 3E1.1 and Chapter Four mandate that a district
court is to consider criminal conduct in which the defendant has engaged
prior to sentencing. By calling for consideration of the same criminal
conduct in two provisions that would be routinely applied together, the
Commission necessarily contemplated double counting when it created
§ 3E1.1.
      Turning to the second prong of the double counting test, we must
consider whether both § 5K2.0 and § 3E1.1 concern conceptually separate
notions related to sentencing. See Saffeels, 39 F.3d at 836. We agree
with the Aimufua court that, when these provisions are applied together,
there is no impermissible double counting because the two sections at issue
address “conceptually separate notions relating to sentencing.” Aimufua,
935 F.2d at 1201. The Aimufua court reasoned that “section 3E1.1 operates
to ameliorate a sentence for a defendant who has shown sincere remorse for
his crime while an upward departure from the guidelines under section 5K2.0
enhances an otherwise inadequate sentence.” Id.




                                    -6-
      We conclude, as the Aimufua court concluded, that "the Sentencing
Guidelines recognized the potential for double counting in certain cases
involving both section 3E1.1 and section 5K2.0.” Id. Our conclusion is
bolstered by the fact that, as the Aimufua court also noted, “[t]he
guidelines list no specific rule to prohibit such double counting." Id.
Because we conclude that the joint application of these two sections does
not constitute impermissible double counting, we hold that the district
court did not err when it applied both of these sections to Hipenbecker.


     Accordingly, we affirm.

     A true copy.


           Attest:


                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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