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. e du/thir dc ir c uit_1996/59UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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NO. 96-7026

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UNITED STATES OF AMERICA, Appellee,

v.

ANGELO P. CECCARANI, Appellant.

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An Appeal from the United States District C ourt For the Middle District of Pennsylvania
D.C. No. 95-cr-00148-2

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Argued September 20, 1996

Before: Nygaard, Roth, and Rosenn, Circuit Judges.

Opinion Filed October 22, l996

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John A. Bednarz, Jr. (argued) 15 Public Square
Suite 405 Wilkes-Barre, PA 18701 Counsel for Appellant

David M. Barasch, U.S. Attorney, Bruce Brandler, Asst. U.S. Attorney (argued) Middle District of Pennsylvania Suite 309, Federal Building
Scranton, PA Counsel for Appellee

____________________OPINION OF THE COURT

____________________

ROSENN, Circuit Judge. 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 a nd 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 respo nsibility. The defendant had participated with two others in the break-in of a department store and had stolen firea rms and ammunition. The defendant was arrested and charged in eight counts of a seventeen count indictment with conspir acy to steal
and the theft of firearms from a licensed firearms dealer in violation of 18 U.S.C. § 371 and §§ 922(u) and 2. Other counts of the indictment charged him with disposal and pos session of firearms in violation of 18 U.S.C. § 922(j). The defendant initially pled not guilty to the charges but ultimately entered into a guilty plea agreement wit h the Government to Count II of the indictment (Theft fro m a Federal Firearms Licensee, Aid and Abet). At his sentencin g, the defendant requested a two-level reduction in his of fense level for acceptance of responsibility pursuant to § 3E1. 1 of the United States Sentencing Guidelines ("U.S.S.G."). The court rejected this request because the defendant had tes ted positive for marijuana and had refused to attend a court-ord ered rehabilitation program while on pre-trial release p ending sentencing. The defendant timely appealed. We aff irm.

I. On January 15, 1995, the defendant participate d in the break-in of a department store in Wilkes-Barre, Pen nsylvania, stealing twenty-two handguns, one rifle, one shotgu n, and twelve
boxes of ammunition. The defendant retained severa l of the stolen firearms, some of which he later sold or gav e away. On January 25, 1995, a search of the defendant's resid ence 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 w ritten 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 sev en occasions between June 15 and September 20, 1995; five of tho se tests yielded positive results for the presence of mariju ana. 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 le vel for acceptance of responsibility under United States Se ntencingGuideline ("U.S.S.G.") § 3E1.1 due to his continued marijuana use

while on pre-trial release. After the fifth positive test result, the defe ndant underwent an evaluation at a drug and alcohol treat ment center and the evaluation recommended outpatient treatment . The defendant, however, refused to attend outpatient tr eatment, contending that he was unable to afford the session s and had difficulty obtaining transportation to the treatmen t site. The probation officer, however, reported to the distric t court that, based on his income and expenses, the defendant cou ld afford
these sessions and that he had made no effort to ex plain his transportation problems to anyone in the probation office. At the sentencing hearing, the district court judge accepted the recommendation of the probation office r and denied the defendant any acceptance of responsibility redu ction due to his conduct while on pre-trial release. The distri ct court, having determined that the defendant had an offense level of 14 and a criminal history category of II, sentenced hi m to eighteen months imprisonment followed by two years of superv ised release, restitution of $3,425.01, and a special assessment.

II. The sole issue on appeal presented by the defe ndant is whether the positive drug tests and the failure to participate in the drug rehabilitation program that occurred post- indictment and before sentencing, which he claims are wholly unrel ated to the crime charged, can be properly considered by the co urt in determining an acceptance of responsibility reducti on for a specific offense. This presents an issue of first impression in
this court. Section 3E1.1(a) of the Sentencing Guidelines states: "If the defendant clearly demonstrates acceptance of re sponsibility for his offense, decrease the offense level by two levels." U.S.S.G. § 3E1.1(a). The Commentary sets forth a n umber of factors which may be considered in determining whet her the defendant has demonstrated an acceptance of respons ibility under § 3E1.1. Among the considerations are:

(a) truthfully admitting the conduct comprisin g the offense(s) of conviction, and truthfully admit ting or not falsely denying any additional relevant co nduct
for which the defendant is accountable under § 1B1.3 (Relevant Conduct). . . . ; (b) voluntary termination or withdrawal from c riminal conduct or associations; (c) voluntary payment of restitution prior to adjudication of guilt; (d) voluntary surrender to authorities promptl y after commission of the offense; (e) voluntary assistance to authorities in the recovery of the fruits and instrumentalities o f the offense; (f) voluntary resignation from the office or p ositionheld during the commission of the offense;

(g) post-offense rehabilitative efforts (e.g., counseling or drug treatment); and (h) the timeliness of the defendant's conduct in manifesting acceptance of responsibility. U.S.S.G. § 3E1.1 Application Note 1. The Guideline s make clear
that this list is not exhaustive.
The defendant contends that he showed his inte nt to accept responsibility for the charged offense by his coope ration with the federal government, his consent to the search o f his residence, and his offer of full restitution; he sp ecifically points to his surrender to authorities promptly aft er the offense, his assistance in the recovery of the fire arms, and the timely manifestation of his acceptance of responsib ility. His counsel vigorously urges that the defendant is enti tled to a twopoint reduction under § 3E1.1(a).
The Government counters that the court is enti tled to consider a broad range of information when deciding upon an appropriate sentence, including the defendant's con duct while on pre-trial release. Thus, if the defendant continue s to engage in criminal conduct, as he did here, and fails to comp ly with postoffense rehabilitative efforts, the district court is well-within
its discretion to conclude that the defendant is no t truly remorseful and has not accepted responsibility for his offense.
A district court's factual determination of wh ether the defendant is entitled to an acceptance of responsib ility reduction in his sentence is reviewed on a clearly erroneous standard. United States v. DeLeon-Rodriguez, 70 F. 3d 764, 767 (3d Cir. 1995); United States v. Felton, 55 F.3d 86 1, 869 (3d Cir. 1995). In addition, the Guidelines make clear that "[t]he sentencing judge is in a unique position to evaluat e a defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled t o great deference on review." U.S.S.G. § 3E1.1 Application Note 5. However, the question of whether the district court correctly interpreted U.S.S.G. § 3E1.1 is a legal question an d subject to plenary review. United States v. Frierson, 945 F.2 d 650, 655 (3d Cir. 1991). Although this is an issue of first impression in our jurisdiction, six other circuits have addressed thi s issue; five
of the six have held that the district court is ent itled to
consider criminal conduct committed while the defen dant is free on bond and did not grant a reduction for acceptanc e of responsibility. See United States v. Byrd, 76 F.3d 194, 196-97 (8th Cir. 1996) (upholding denial of acceptance of responsibility where defendant used marijuana while awaiting a sen tence for assault with a dangerous weapon); United States v. McDonald, 22 F.2d 139, 144 (7th Cir. 1994) (affirming denial of acceptance of responsibility where defendant used cocaine while a waiting sentencing for counterfeiting); United States v. O' Neil, 936 F.2d 599, 600-01 (1st Cir. 1991) (upholding denial of ac ceptance of responsibility where defendant used marijuana after committing mail theft); United States v. Watkins, 911 F.2d 983 , 984 (5th Cir. 1990) (affirming denial of acceptance of respo nsibilitywhere defendant used cocaine while on release pendi ng sentencing

for forgery); United States v. Scroggins, 880 F.2d 1204, 1215-16 (11th Cir. 1989), cert. den., 494 U.S. 1083 (1990) (holding that
"the district court acted well within its discretio n in concluding that appellant's continued use of cocain e cast doubt on the sincerity of his avowed acceptance of respon sibility" for the underlying postal theft offense). But see Unit ed States v. Morrison, 983 F.2d 730, 735 (6th Cir. 1993) (holdin g that acceptance of responsibility considers only conduct related to the charged offense). The common thread running through the five cir cuit cases cited above holding that unrelated conduct can be c onsidered under § 3E1.1 is the notion that the defendant's po st-offense conduct can shed significant light on the genuinene ss of a defendant's claimed remorse. As they have noted, § 3E1.1 does not contain any restriction against considering cri minal conduct unrelated to the specific crime charged and, in fac t, § 3E1.1 application note 1(b) suggests consideration by the court of the defendant's "voluntary termination or withdrawal fr om criminal conduct or associations." These five courts of app eal agree that note 1(b) is phrased in general terms and should be interpreted
to include criminal conduct committed since the und erlying offense, even of a different character. In McDonald, 22 F.3d at 144, the court acknowl edged that while the defendant's continued criminal activity d oes not preclude him from receiving a reduction for accepta nce of responsibility, it is properly considered by a sent encing judge as it bears on the charged offense. A guilty plea in acceptance of responsibility may be outweighed by conduct that is inconsistent with such acceptance. "A district cou rt may conclude that continued criminal activity, such as use of a controlled substance, is not consistent with accept ance of responsibility." Id.
Counsel for the defendant contends that § 3E1. 1(a) of the
Guidelines directs that examination of the defendan t's acceptance of responsibility correlates only to conduct relate d to the specific offense before the sentencing court, not t o criminal conduct in general. He cites United States v. Morr ison, 983 F.2d 730 (6th Cir. 1993), where the defendant pled guilt y to receipt and possession of firearms by a felon. Morrison so ught mitigation of his sentence, asserting he accepted r esponsibility by being candid and cooperative with authorities an d his early guilty plea. However, subsequent to the indictment and before sentencing, he was arrested for stealing a truck, f ound to be in constructive possession of firearms, and tested pos itive for a

controlled substance. The court noted that the lan guage of § 3E1.1(a) had been changed from "affirmative accepta nce of personal responsibility for his criminal conduct" t o "acceptance of responsibility for his offense." Morrison, 983 F.2d at 735 n.1. The court considered this change significant and precluded
consideration of unrelated criminal conduct in the acceptance of responsibility determination. The Morrison court b elieved that an individual could be truly repentant for one crim e and yet commit other, unrelated crimes. Id. at 735We find the reasoning of McDonald and the othe r circuits

that held unrelated pre-sentencing conduct may be c onsidered under U.S.S.G. § 3E1.1 to be more persuasive. The language of § 3E1.1, particularly the factors which may be consid ered in determining whether the defendant has in fact demon strated an acceptance of responsibility for his offense, is ve ry general. The language does not specify that the appropriate considerations include only conduct related to the charged offense . Thus, the Guidelines appropriately give the sentencing judge the discretion to consider post-indictment unlawful conduct in det ermining whether to grant the § 3E1.1 reduction for acceptan ce of responsibility. We conclude that the Guideline cha nge in language did not deprive the sentencing court of al l discretion in considering the defendant's request for a reduct ion in the level of his offense because of his claimed accepta nce of responsibility for the charged offense. A mechanic al plea or
confession to an indictment or counts thereof does not necessarily evince a genuine sense of remorse or in tent to pursue lawful conduct. The Commentary to the Guidelines r eferred to above recognize that the sentencing judge will stil l retain a reasonable amount of discretion despite the change in the Guideline language. Among factors to be considered by the judge are not only the truthful admission by the defendan t of the conduct compromising the offense(s) but also his or her voluntary
termination or withdrawal from criminal conduct and post-offense rehabilitation efforts. These bear on an important aspect of any criminal sentence -- the defendant's genuine feelin g of remorse
and his or her rehabilitation efforts. Continual c riminal activity, even differing in nature from the convict ed offense, is inconsistent with an acceptance of responsibility a nd an interest
in rehabilitation. A significant factor in the instant case are t he conditions incorporated in the order of the court releasing th e defendant on bail. One of these conditions obligated the defend ant not to commit any offense in violation of federal, state o r local law while on release. This term was an express conditi on of the defendant's pre-trial release and, when violated, c onstituted grounds for revocation of bail. Thus, violation of this condition could be appropriately considered by the district court in determining whether the defendant should be gran ted a
reduction in his offense level. Another condition required defendant to submit to drug testing and/or treatment as directed by the probati on office. At the time, Ceccarani refused counseling for his drug habit; he represented that he couldn't afford the $30 per vis it counseling fee, although he was earning about $1000 per month with necessary expenses of only $200 per month. Application Note 1(g) permits the court to consider the defendant's post-rehabili tative efforts in weighing his acceptance of responsibility. If a defendant's
efforts to obtain rehabilitation can be considered in his favor, certainly a defendant's refusal to enter drug couns eling, even when directed to do so by court order, may be consi dered as an unfavorable factor in determining whether the defen dant is
entitled to a reduction in his offense level for ac ceptingresponsibility for the convicted offense. We there fore hold that

a sentencing judge may, in the exercise of his disc retion, consider unlawful conduct committed by the defendan t while on pre-trial release awaiting sentencing as well as an y violations of the conditions of this pre-trial release in dete rmining whether the court should grant a reduction in the o ffense level for acceptance of responsibility under U.S.S.G. § 3 E1.1(a). In the instant case, the defendant tested posi tive on five separate occasions while out on bail and rejected t he opportunity for drug counseling and treatment, displaying arrog ance and
defiance of the court and the law. This entitled C hief Judge Kosik, an experienced and able trial judge, in the exercise of his discretion, to reject the requested reduction. Therefore, having determined that the positive drug tests and the refusal to enter rehabilitation were appropriate factors for t he district court to consider under § 3E1.1, we cannot conclude that the
district court's determination that the defendant w as not entitled to an acceptance of responsibility reducti on was clearly

erroneous.

III. Accordingly, the judgment of the district cour t will be
affirmed.