1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-22-1996

United States v. Ceccarani

Precedential or Non-Precedential:

Docket 96-7026

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Recommended Citation

"United States v. Ceccarani" (1996). 1996 Decisions. Paper 59.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/59
 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 ____________________ 

 NO. 96-7026 

 ____________________ 

 

 UNITED STATES OF AMERICA, 

 Appellee, 

 

 v. 

 ANGELO P. CECCARANI, 

 Appellant. 

 

 ___________________ 

 An Appeal from the United States District Court 

 For the Middle District of Pennsylvania

 D.C. No. 95-cr-00148-2 

 ___________________ 

 

 Argued September 20, 1996 

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

 Opinion Filed October 22, l996 

 ____________________ 

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 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. § 371 and §§ 922(u) and 2. Other counts 

of the indictment charged him with disposal and possession 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 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 § 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. We affirm. 

 I. 

 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 imprisonment followed by two years of supervised release, 

restitution of $3,425.01, and a special assessment. 

 II. 

 The sole issue on appeal presented by the defendant 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 unrelated to the 

crime charged, can be properly considered by the court in 

determining an acceptance of responsibility reduction 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 responsibility 

for his offense, decrease the offense level by two levels." 

U.S.S.G. § 3E1.1(a). The Commentary sets forth a number of 

factors which may be considered in determining whether the 

defendant has demonstrated an acceptance of responsibility under 

§ 3E1.1. Among the considerations are: 

 (a) truthfully admitting the conduct comprising the 

 offense(s) of conviction, and truthfully admitting or 

 not falsely denying any additional relevant conduct 

 for which the defendant is accountable under § 1B1.3 

 (Relevant Conduct). . . . ; 

 (b) voluntary termination or withdrawal from criminal 

 conduct or associations; 

 (c) voluntary payment of restitution prior to 

 adjudication of guilt; 

 (d) voluntary surrender to authorities promptly after 

 commission of the offense; 

 (e) voluntary assistance to authorities in the

 recovery of the fruits and instrumentalities of the 

 offense; 

 (f) voluntary resignation from the office or position 
 held 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 Guidelines make clear 

that this list is not exhaustive. 

 The defendant contends that he showed his intent to accept 

responsibility for the charged offense by his cooperation with 

the federal government, his consent to the search of his 

residence, and his offer of full restitution; he specifically 

points to his surrender to authorities promptly after the 

offense, his assistance in the recovery of the firearms, and the 

timely manifestation of his acceptance of responsibility. His 

counsel vigorously urges that the defendant is entitled to a twopoint reduction under § 3E1.1(a). 

 The Government counters that the court is entitled to 

consider a broad range of information when deciding upon an 

appropriate sentence, including the defendant's conduct while on 

pre-trial release. Thus, if the defendant continues to engage in 

criminal conduct, as he did here, and fails to comply with postoffense rehabilitative efforts, the district court is well-within 

its discretion to conclude that the defendant is not truly 

remorseful and has not accepted responsibility for his offense. 

 A district court's factual determination of whether the 

defendant is entitled to an acceptance of responsibility 

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 861, 869 (3d 

Cir. 1995). In addition, the Guidelines make clear that "[t]he 

sentencing judge is in a unique position to evaluate a 

defendant's acceptance of responsibility. For this reason, the 

determination of the sentencing judge is entitled to 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 and subject to 

plenary review. United States v. Frierson, 945 F.2d 650, 655 (3d 

Cir. 1991). 

 Although this is an issue of first impression in our 

jurisdiction, six other circuits have addressed this issue; five 

of the six have held that the district court is entitled to 

consider criminal conduct committed while the defendant is free 

on bond and did not grant a reduction for acceptance 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 sentence 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 awaiting 

sentencing for counterfeiting); United States v. O'Neil, 936 F.2d 

599, 600-01 (1st Cir. 1991) (upholding denial of acceptance 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 responsibility 
where defendant used cocaine while on release pending 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 discretion in 

concluding that appellant's continued use of cocaine cast doubt 

on the sincerity of his avowed acceptance of responsibility" for 

the underlying postal theft offense). But see United States v. 

Morrison, 983 F.2d 730, 735 (6th Cir. 1993) (holding that 

acceptance of responsibility considers only conduct related to 

the charged offense). 

 The common thread running through the five circuit cases 

cited above holding that unrelated conduct can be considered 

under § 3E1.1 is the notion that the defendant's post-offense 

conduct can shed significant light on the genuineness of a 

defendant's claimed remorse. As they have noted, § 3E1.1 does 

not contain any restriction against considering criminal conduct 

unrelated to the specific crime charged and, in fact, § 3E1.1 

application note 1(b) suggests consideration by the court of the 

defendant's "voluntary termination or withdrawal from criminal 

conduct or associations." These five courts of appeal agree that 

note 1(b) is phrased in general terms and should be interpreted 

to include criminal conduct committed since the underlying 

offense, even of a different character. 

 In McDonald, 22 F.3d at 144, the court acknowledged that 

while the defendant's continued criminal activity does not 

preclude him from receiving a reduction for acceptance of 

responsibility, it is properly considered by a sentencing 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 court may 

conclude that continued criminal activity, such as use of a 

controlled substance, is not consistent with acceptance of 

responsibility." Id. 

 Counsel for the defendant contends that § 3E1.1(a) of the 

Guidelines directs that examination of the defendant's acceptance 

of responsibility correlates only to conduct related to the 

specific offense before the sentencing court, not to criminal 

conduct in general. He cites United States v. Morrison, 983 F.2d 

730 (6th Cir. 1993), where the defendant pled guilty to receipt 

and possession of firearms by a felon. Morrison sought 

mitigation of his sentence, asserting he accepted responsibility 

by being candid and cooperative with authorities and his early 

guilty plea. However, subsequent to the indictment and before 

sentencing, he was arrested for stealing a truck, found to be in 

constructive possession of firearms, and tested positive for a 

controlled substance. The court noted that the language of § 

3E1.1(a) had been changed from "affirmative acceptance of 

personal responsibility for his criminal conduct" to "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 believed that 

an individual could be truly repentant for one crime and yet 

commit other, unrelated crimes. Id. at 735 
 We find the reasoning of McDonald and the other circuits 

that held unrelated pre-sentencing conduct may be considered 

under U.S.S.G. § 3E1.1 to be more persuasive. The language of § 

3E1.1, particularly the factors which may be considered in 

determining whether the defendant has in fact demonstrated an 

acceptance of responsibility for his offense, is very 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 determining 

whether to grant the § 3E1.1 reduction for acceptance of 

responsibility. We conclude that the Guideline change in 

language did not deprive the sentencing court of all discretion 

in considering the defendant's request for a reduction in the 

level of his offense because of his claimed acceptance of 

responsibility for the charged offense. A mechanical plea or 

confession to an indictment or counts thereof does not 

necessarily evince a genuine sense of remorse or intent to pursue 

lawful conduct. The Commentary to the Guidelines referred to 

above recognize that the sentencing judge will still 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 defendant 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 feeling of remorse 

and his or her rehabilitation efforts. Continual criminal 

activity, even differing in nature from the convicted offense, is 

inconsistent with an acceptance of responsibility and an interest 

in rehabilitation. 

 A significant factor in the instant case are the conditions 

incorporated in the order of the court releasing the defendant on 

bail. One of these conditions obligated the defendant not to 

commit any offense in violation of federal, state or local law 

while on release. This term was an express condition of the 

defendant's pre-trial release and, when violated, constituted 

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 granted a 

reduction in his offense level. 

 Another condition required defendant to submit to drug 

testing and/or treatment as directed by the probation office. At 

the time, Ceccarani refused counseling for his drug habit; he 

represented that he couldn't afford the $30 per visit 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-rehabilitative 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 counseling, even 

when directed to do so by court order, may be considered as an 

unfavorable factor in determining whether the defendant is 

entitled to a reduction in his offense level for accepting 
responsibility for the convicted offense. We therefore hold that 

a sentencing judge may, in the exercise of his discretion, 

consider unlawful conduct committed by the defendant while on 

pre-trial release awaiting sentencing as well as any violations 

of the conditions of this pre-trial release in determining 

whether the court should grant a reduction in the offense level 

for acceptance of responsibility under U.S.S.G. § 3E1.1(a). 

 In the instant case, the defendant tested positive on five 

separate occasions while out on bail and rejected the opportunity 

for drug counseling and treatment, displaying arrogance and 

defiance of the court and the law. This entitled Chief 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 the district 

court to consider under § 3E1.1, we cannot conclude that the 

district court's determination that the defendant was not 

entitled to an acceptance of responsibility reduction was clearly 

erroneous. 

 

 III. 

 Accordingly, the judgment of the district court will be 

affirmed.