On Appeal From the United States District Court; For the District of Delaware; (D.C. Crim. Action No. 90-4-1).
Stapleton, Hutchinson, and Garth, Circuit Judges. Garth, Circuit Judge, concurring and dissenting.
Jerome Frierson appeals from a judgment of sentence imposed after he pled guilty to bank robbery by intimidation in violation of 18 U.S.C. § 2113(a). Frierson raises two important issues concerning application of the Sentencing Guidelines. First, we must determine whether conduct that is "relevant" to the offense of conviction, and is charged in the indictment but dropped pursuant to a plea agreement, may be used by the sentencing judge in adjusting the offense level for a specific offense characteristic. Second, we must address certain aspects of the interplay between the Fifth Amendment privilege against self-incrimination and § 3E1.1 of the Guidelines, which authorizes a two-level sentence reduction for acceptance of responsibility. We will affirm the judgment of sentence.
Frierson was indicted in January 1990 for a robbery committed on December 22, 1989. Count I of the indictment charged Frierson with robbing a bank by intimidation in violation of 18 U.S.C. § 2113(a). Count II charged bank robbery with a dangerous weapon in violation of 18 U.S.C. § 2113(a), (d). Count III charged interstate transportation of a stolen car in violation of 18 U.S.C. § 2312. On February 22, 1990, pursuant to a plea agreement, the government dismissed with prejudice Counts II and III in exchange for Frierson's plea of guilty to Count I.
The Guidelines impose a base offense level for particular criminal offenses and provide for an increase or decrease from the base offense level for certain "specific offense characteristics" associated with the offenses. The base offense level for robbery is 20, and two levels must be added when a bank's property was the target of the robbery. The sentencing judge also must impose a three-level increase if "a dangerous weapon (including a firearm) was brandished, displayed, or possessed." U.S.S.G. § 2B3.1. Specific offense characteristics such as possession of a gun must be proved by a preponderance of the evidence. United States v. Kikumura, 918 F.2d 1084, 1099 (3d Cir. 1990) (Guidelines sentencing determinations normally determined by preponderance of evidence); United States v. McDowell, 888 F.2d 285, 290-91 (3d Cir. 1989) (same); see generally McMillan v. Pennsylvania, 477 U.S. 79, 91-93, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986) (preponderance of evidence standard for sentencing determinations satisfies due process).
In determining whether a specific offense characteristic applies, the sentencing judge is not constrained to look only at the specific conduct that constitutes the offense of conviction. Instead, with few exceptions, the judge generally must consider all "relevant conduct" under § 1B1.3 of the Guidelines.
Unless otherwise specified, . . . specific offense characteristics . . . shall be determined on the basis of . . . all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for that offense, . . . or that otherwise were in furtherance of that offense.
U.S.S.G. § 1B1.3(a) (emphasis added). For certain crimes, not including robbery, relevant conduct also includes all acts and omissions that were "part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. § 1B1.3(a)(2).
After the district judge accepted the plea agreement between Frierson and the government, a probation officer interviewed Frierson in May 1990 in order to prepare the presentence report required by the Guidelines. See U.S.S.G. § 6A1.1 p.s. At the presentence interview, Frierson admitted that he had committed the robbery and that during the robbery he had handed the teller a note that said: "Give me your money, I have a gun." Thus, Frierson admitted all conduct for which he had been convicted. Frierson and the government disagreed, however, over whether Frierson actually possessed a gun. Frierson, repeating what he had stated to an FBI agent in an interview on January 8, 1990, denied that he had possessed a gun during the bank robbery. The government contested this account and provided statements by a bank teller that Frierson had possessed and brandished a gun during the robbery.
The probation officer assigned Frierson a base offense level of 20 for robbery and added two levels because a bank was robbed. The base offense level and this initial increase are undisputed. With the offense level set at 22, the probation officer had to determine whether to recommend enhancement of the sentence by three levels for possession of a gun. The probation officer also had to decide whether to recommend a two-level reduction for acceptance of responsibility available under § 3E1.1 of the Guidelines. The lowest offense level Frierson could receive was 20 (if he received the two-level reduction for acceptance of responsibility but not the three-level enhancement for gun possession). Absent departure, an offense level of 20 and Frierson's criminal history category of II would require a sentence between 37 and 46 months. The highest level Frierson could receive was 25, which, absent departure, would mandate a sentence between 63 and 78 months.
The probation officer concluded that Frierson had possessed a gun during the robbery. He thus recommended enhancing the base offense level by three levels for possession of a gun pursuant to § 2B3.1 of the Guidelines. Moreover, the probation officer concluded that, although Frierson had admitted committing the bank robbery, Frierson had not demonstrated a recognition or affirmative acceptance of responsibility for possession of the gun. Consequently, the probation officer recommended denying the two-level reduction for acceptance of responsibility. Thus, the total recommended offense level was 25.
In view of the conflict over whether Frierson possessed a gun, the district judge conducted an evidentiary hearing. At the hearing, the bank teller testified that Frierson held a gun throughout the robbery. Frierson did not testify, but Frierson's counsel agreed with the government that if Frierson were to testify, he "would testify that he had no gun." App. at 12. The district court found that Frierson had possessed a weapon during the commission of the robbery, and that Frierson's possession of the weapon required the three-level increase in Frierson's offense level under § 2B3.1. The court also concluded that the probation officer was correct in denying Frierson a two-level reduction for acceptance of responsibility. Thus, the total offense level was 25, and the district court sentenced Frierson to 78 months imprisonment.
The first issue is whether the district court properly imposed a three-level increase in the offense level for gun possession. Frierson's argument concerns interpretation and application of the Guidelines; he does not raise a constitutional challenge on this point. Our review is plenary. United States v. Ofchinick, 877 F.2d 251, 255 (3d Cir. 1989).
The Guidelines are clear that conduct beyond the precise acts of the offense of conviction may be used to determine specific offense characteristics. See U.S.S.G. § 1B1.3. This court and other courts of appeals have adhered to this prescription, upholding sentences based in part on conduct for which the defendant was not convicted. See United States v. Cianscewski, 894 F.2d 74, 80-81 (3d Cir. 1990); United States v. Ryan, 866 F.2d 604, 608-09 (3d Cir. 1989); see also Wilkins & Steer, Relevant Conduct: The Cornerstone of the Federal Sentencing Guidelines, 41 S.C.L. Rev. 495, 502 (1990). The use of relevant conduct in determining specific offense characteristics complies with the Sentencing Commission's intent to inject certain "real offense" elements into the Guidelines, which have created a mostly "charge offense" system. U.S.S.G., Ch.1, Pt.A, intro. comment; see also Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L. Rev. 1, 11-12 (1988). In this case, Frierson's gun possession during the robbery falls well within the scope of conduct relevant to his robbery of the bank; therefore, the Guidelines required the court to enhance the sentence for the specific offense characteristic of gun possession.
Our review of the three-level increase for gun possession is not at an end, however, for Frierson argues that taking relevant conduct into account in this case would render his plea agreement with the government an "empty" bargain. Frierson pled guilty only to unarmed bank robbery and the government dismissed the armed robbery count; based on this, Frierson argues that the district court should not have imposed the three-level enhancement for the specific offense characteristic of gun possession. Frierson argues that his expectation in entering the plea agreement was that the government would not pursue a sentence grounded in the bargained-away count, and that this advantage was the only one he gained from his guilty plea, apart from an enhanced possibility of a reduction for acceptance of responsibility.
In the leading case on the issue, the Court of Appeals for the Eleventh Circuit held that conduct relevant to the offense of conviction must be considered in determining a specific offense characteristic, even if that conduct overlaps with conduct charged and dismissed pursuant to a plea agreement. United States v. Scroggins, 880 F.2d 1204, 1212-14 (11th Cir. 1989). In Scroggins, the defendant pled guilty to one theft of a little more than $100, which under § 2B1.1 of the Guidelines would require an enhancement of one level over the base offense level of four for theft. However, the sentencing judge enhanced the sentence by five levels to reflect other thefts committed by the defendant; these other thefts were "relevant conduct" because they were part of the same course of conduct as the one theft. See U.S.S.G. § 1B1.3(a)(2). The indictment had charged the defendant with the other thefts, but these counts were dismissed pursuant to the plea agreement. The defendant argued that consideration of his previous thefts through § 2B1.1 rendered his plea bargain empty. The court agreed that the defendant had nothing to gain from his plea agreement because his sentence would have been the same had he gone to trial and been convicted on all of the counts; nonetheless, it held that the district court's reliance on the defendant's other thefts was mandated by the Guidelines and was neither "unfair nor inequitable." Id. at 1214. "The guidelines clearly indicate that such conduct is relevant to sentencing; thus, appellant by no means received a sentence that he could not have anticipated--to the contrary, appellant could have predicted that the court would so act." Id.
We agree with the Eleventh Circuit's decision in Scroggins. The Guidelines require consideration of conduct relevant to the offense of conviction in determining specific offense characteristics. In a robbery case, the Guidelines clearly contemplate the defendant's use of a gun as a basis for sentence enhancement. See U.S.S.G. § 2B3.1. Furthermore, in this case, the government provided Frierson, before he pled guilty, with a copy of a Delaware federal district court case in which the court enhanced a sentence for robbery on the basis of gun possession. The government thus alerted Frierson to the possibility that the court would enhance his sentence on that basis. Therefore, if Frierson expected that the sentencing judge could not rely on his possession of a gun to enhance his sentence, that belief was unfounded and unreasonable, in light both of the Guidelines and of the government's commendable disclosure. We also point out that, unlike the situation in Scroggins, Frierson's bargain was not completely empty, since the count of the indictment related to car theft was also dismissed as part of the plea bargain but did not play any role in the sentence calculation.*fn1
Because we reject Frierson's legal challenges to the three-level increase for possession of a gun and Frierson raises no challenge to the district court's factual conclusion that Frierson displayed a gun during the commission of the bank robbery, we will affirm the district court's three-level enhancement of Frierson's sentence for possession of a gun.
Section 3E1.1 of the Guidelines provides a two-level reduction for a defendant who "clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct." Frierson raises two arguments concerning § 3E1.1. The first argument is one of interpretation. Frierson argues that § 3E1.1 requires a defendant to accept responsibility only for the specific acts of the offense of conviction, and not for acts beyond the offense of conviction. The second argument is constitutional. Frierson argues that § 3E1.1 would violate the Fifth Amendment's prohibition against compelled self-incrimination if it required that a defendant admit to conduct beyond the specific conduct of the offense of conviction.
The probation officer recommended withholding the two-level acceptance of responsibility reduction because Frierson denied possessing a gun during the robbery. The district court agreed and stated: "The Court finds that the Probation Staff was warranted . . . in refusing to grant a two-level reduction for the acceptance of responsibility." App. at 37. Frierson argues that he admitted robbing the bank, which was his specific offense of conviction, and that § 3E1.1 requires the district court to consider only whether the defendant has accepted responsibility for the specific acts constituting the offense of conviction. Although "a district court's finding that a defendant did not accept responsibility may be reversed only if 'clearly erroneous,'" United States v. Singh, 923 F.2d 1039, 1043 (3d Cir. 1991), the question whether the district court correctly interpreted § 3E1.1 is purely legal. Our review is thus plenary.
Section 3E1.1 in its original form required a defendant's acceptance of responsibility for "the offense of conviction," but the Sentencing Commission amended the provision effective January 1988 to refer to acceptance of responsibility for the defendant's "criminal conduct." U.S.S.G. App. C.20. In determining whether the defendant has accepted responsibility for his or her criminal conduct, appropriate considerations include whether there has been a "voluntary and truthful ...