An Appeal from the United States District Court For the Middle District of Pennsylvania
Before: Nygaard, Roth, and Rosenn, Circuit Judges.
Argued September 20, 1996
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. Section(s) 371 and Section(s) 922(u) and 2. Other counts of the indictment charged him with disposal and possession of firearms in violation of 18 U.S.C. Section(s) 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 Section(s) 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. *fn1 We affirm.
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 ...