The Honorable David S. Doty, United States Dis trict Judge for 1 the District of Minnesota. United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 96-1589

_____________ United States of America, * * Plaintiff-Appellee, * Appeal from the United States * District Court for the v. * District of Minnesota. * Richard William Field, also * known as Mike Field, * * Defendant-Appellant. *

_____________ Submitted: November 20, 1996 Filed: April 7, 1997

_____________ Before FAGG, WOLLMAN, and HANSEN, Circuit Judges.

_____________ HANSEN, Circuit Judge.

Ric hardField appeals the sentence imposed on him by th e district court following his conviction of one count of conspiracy 1 to defraud the United States o f funds and one count of mail fraud, and following his entry of a guilty plea to one additional c ount of conspiracy to defraud the United States. Richard challenges theW e affirm Clark Field's sentence in a separate appeal file d 2 today. See United States v. Clark Beach Field , No. 96-1588 (8t h Cir. Apr. ___, 1997).
2 district court's findings that he did not play a mitigating role in the offense and that he did not accept responsibility for hi s offenses, and he challenges th e court's refusal to depart downward becaus e of the economic impact of his incarceration on innocen t third parties. We affirm.

I.

On March 23, 1994, a federal grand jury indicted Richar d Field, his brother Clark Field, Rudell Oppegar d, and Martin Gjerde 2 on 15 counts, including charges of conspiracy to defraud the United States of funds in violation o f 18 U.S.C. § 371 (1994), mail fraud in viola tion of 18 U.S.C. § 1341, and making false statements i n violation of 18 U.S.C. § 1001. The indictment charged two s eparate conspiracies, one involving th e Field brothers and Rudell Oppegard (th e Twin Valley State Bank conspiracy), and the other involvin g the Field brothers and Martin Gjerde (the Bonanza Valley Sta te Bank conspiracy).
Both conspiracies arose out of the Field brothers' applicati on to the City of Clarkfield, Minnesota, for a Department of Housing and Urban Development (HUD) Sm all Cities Grant Program loan in the amount of $282,000 to establish a new whey drying business , Cla rkfieldDrying, Incorporated. Their HUD loan applicatio n indicated that funding in addition to the HUD grant, specifically an additional $292,000 of private financing, would be necess ary for the pu rchase of equipment and building renovation to ensure th e success of the business. Before agreeing to release the HUDfunds, the Minnesota Department of Trade and Economic Development ( MDTED),3

which administered the federal program, required proof through a loan commitment letter that the private financing had been s ecured.

Una ble to secure the necessary additional funding afte r
num erous attempts, the Field brothers entered into a scheme wit h Rudell Oppegard, President of Twin Valley State Bank in Twi n Valley, Minnesota. Oppegard agreed to provide the Fields with a false letter of credit in the amount of $292,000, written on Twin Valley State Bank stationery, which the Fields could use in support of their HUD loan application. All three men knew that the money wouldnot actually leave the bank. The scheme convinced th e commissioner of the MDTED and the City of Clarkfield that th e requir edprivate funding had been secured. Based on thi s assumption, the MDTED agreed t o release the HUD funds to the city, which would in turn lend the H UD funds to the Fields, provided the Fields could prove that the Twin Valley State Bank had closed the bank loan and released the private funding. Clark Field rep eatedly assured the city that the private funds allegedly secured through the letter of credit would be released, but the Twin Valley State Bank did not close on the bank loan and instead informed the city at torneythat the loan commitment letter from Oppegard wa s
una uthorized, because it purported to lend an amount that wa s beyond the bank's lending limit. After this fraudulent attempt to obtain the HUD funds failed, the Fields sought to obtain the $292,000 in private funding through MartinGjerde, president of the Bonanza Valley State Bank and a longtime acquaintance of Richard's. Richard introduced his brother Clark to Martin Gjerde. Initi ally, Gjerde indicated that he would be unable to provide the private funding they sought because , among ot her reasons, Clarkfield was outside the Bonanza Valley Stat e Bank's service area, and Gjerde was not familiar with Clark

. Richard and Clark then proceeded to create a Minnesota corpo ration,4

Minnewaska Capital Investment, Inc., in Glenwood, Minnesota, which is within the Bonanza Valley S tate Bank service area. Richard was listed as the president of Minnewaska, a company whose sole purpose was to funnel money from the bank to Clarkfield Drying, Inc., and back.

After the formation of Minnewa ska, Gjerde agreed to provide a paper loan transaction, in which $292,000 would be loaned t o Minnewaska with the understanding among the parties that it would be repaid within six months. Richard, Clark, and Gjerde sig ned the loan, and the bank advanced the funds to a Minnewaska checkin g account with Bonanza Valley State Bank. The same day, the fund s were transferred to a Clarkfie ld Drying, Inc., checking account at Bonanza Valley State Bank, and $173,000 was immediately tran sferred back to the bank through the Minnewaska account. The balance o f $119,0 00 remained in Clarkfield Drying's account to serve a s evidence that the loan had in fact closed.

Richar d, Clark, and Gjerde represented that $173,000 of th e loan funds had been used to purchase equipment as promised in the funding letter. The false loan documents were provided as proo f that the Fields had obtained the necessary private funding

. Richard and Clark stated in an affidavit that the funds had bee n used t o purchase equipment. In reliance on this fals e documentation, the MDTED released the HUD funding. After the HUD funds had been released, Richa rd paid the remaining balance of the loan to Bonanza Valley State Bank, as well as $3,571, purportedly
a payment of interest. Bank records reveal that the loan wa s merely a paper transaction, that the bank never intended to allow the funds to leave the bank, a nd that Gjerde had frozen ClarkfieldFor additional facts concerning Martin Gjerde's involvemen t 3 in the scheme, see United States v. Gjerde , No. 96-2033 (8th Cir. Apr. ___, 1997). 5 Dr ying's accounts to assure that the money would not be spent. 3 The Fields eventually defaulted on the HUD loan.
As noted above, numerous federal criminal charges arose out of these two conspiracies to defr aud the United States. The district court severed the counts relating to the Twin Valley State Ban k conspiracyfrom those related to the Bonanza Valley State Ban k
con spiracy, and tried them separately. The first trial involve d the Field brothers and Rudell Oppegard, all charged with one count of consp iracy to defraud the United States and one count of mai l fraud, arising from the Twin Valley State Bank conspiracy. Th e jury returned guilty verdicts against all three defendants on both counts
. Facing a second trial on multiple additional count s relating to the Bonanza Valley State Bank conspiracy, Richard and Clark decided to plead guilty to one additional count of con spiracy to defraud the United States, based on their dealings with Gjerde, and they waived their right to appeal the guilty verdicts re sulting fromthe first trial. In return, the government dismissed al l
rem aining counts of the indictment against them. Gjerde pleade d not guil ty and proceeded to trial, where he was convicted on on e count of conspiracy to defraud the United States of funds bu t acquitted on all other counts.

At sentencing, the district court denied Richard's request s for a reduction based on accep tance of responsibility and his role in the offense, and also denied his motion for a downward de parture based on economic hardship to innocent third parties. The d istrict court sentenced Richard to twenty-one months of imprisonment and6

two ye ars of supervised release, and ordered partial payment o f restitution in the amount of $5,000. Richard appeals his se ntence.

II.

Richar dField contends that the district court erred i n calculating his sentence by not granting him a four-level re duction for his claimed minimal role in the offense or a two-leve l reductionfor his claimed role as a minor participant. Th e Guidelines provide that a defendant's offense level is decre ased by four levels if the defendant was a minimal participant in th e criminal activity and two levels if he was a minor participant

. Unit edStates Sentencing Commission, Guidelines Manual , § 3B1. 2 (Nov. 19 95). A "minor" participant is one "who is less culpabl e than most other participants, but whose role could not be de scribed
as min imal." USSG § 3B1.2, comment. (n. 3). For conduct tha t falls somewhere between these two categories, a three-leve l decrease is appropriate. USSG§ 3B1.2. A "participant['s] status depends on culpability, which is a determination requirin g sensitivity to a variety of factors." United States v. Hall , 949 F.2d 2 47, 249 (8th Cir. 1991) (internal quotations omitted)

. Becaus e the evaluation of a participant's status in the offens e involves a factual determination, we must accept the distric t court's findings regarding a defendant's role in the offense unless they are clearly erroneous. United States v. Shaw , 94 F.3d 438 , 443 (8th Cir. 1996), cert. den ied , Barnes v. United States , 117 S. Ct. 786 (1997).
The district court denied any reduction for Richard's role in the offense, concluding that he was an average participant

. Rich ardnow argues that, although he committed certain crimina l acts, he was ignorant of the fact that he was breaking the l aw. He7

contends that he did not sign the false loan documents wit h knowledg e of fraud. Such an assertion is contrary to the guilt y verdicts e ntered against him as well as his guilty plea. Th e district court found that while Clark was the impetus behind th e scheme , Richard was "deeply involved in the criminal conspiracy " and"the scheme to defraud would not have succeeded without hi s participation." (Sent. Tr. at 160.) The record reveals tha t Ric hardincorporated and was an officer of Clarkfield Drying an d
was th e president of Minnewaska, the vehicles through which th e schemes to defraud were carried out. Richard aided in obtainin g the false letter of credit fro m the Twin Valley State Bank and the paper transaction loan from Bonanza Valley State Bank. Al l critical documents bore his signature as well as Clark's, Richard was present at the loan negotiations, and Richard understood that the money from the Bonanza Valley State Bank loan would neve r really leave the bank.

Neve rtheless, Richard asserts that he is entitled to a reduction because he is less culpable than his brother, Clar k, whom the district court found to be the driving force behind the scheme to defraud. Even though Richard may have been less culpable than his brother, the record clearly indicates that he played a n integral part in the offense throughout the entire scheme. On e defe ndant can be less culpable than another participant withou t necessarily qualifying for a reduction as a minor participan t. See United States v. Rodamaker , 56 F.3d 898, 904 (8th Cir. 1995). We conclude that the district court did not clearly err in it s determ inationthat Richard was an average participant in th e offense. Richar dalso contends that the district court erred by no t gra nting him a reduction for acceptance of responsibility. A district court's decision as to whether a defendant has accepted8

responsibility for his crimina l acts is largely a factual question that turns on issues of credib ility, and we therefore reverse such a decision only if it is clearly erroneous. United States v . Behr , 33 F.3d 1033, 1036-37 (8th Cir. 1994). We afford great deference to the det ermination of the district court judge, who is in a unique position to evaluate whether a defendant has accepte d responsibilityfor his offense. United States v. Byrd , 76 F.3 d 194, 196 (8th Cir. 1996); USSG § 3E1.1, comment. (n.5).

Richardasserts that the district court clearly erred i n conclu ding he had not accepted responsibility because he pleade d guiltybefore the start of the bifurcated trial on the charge s arising from the Bonanza Valley State Bank conspiracy. Th e district court found that Richard did not demonstrate an acc eptance of responsibility because he did not timely notify the government of his intention to plead guilty. Richard went to trial on the two counts arising out of his acti vities in the Twin Valley State Bank consp iracy. He denied the factual elements of his guilt. Onl y after the jury found him guilty on those counts did he enter hi s plea of guilty to the Bonanza Valley State Bank conspiracy, an d then not until the first day of the second trial. The timeliness of his conduct in manifesting an acceptance of responsibilit y is an appropriate consideration when determining whether a defendan t qualifie s for a reduction on this basis. USSG § 3E1.1, comment

. (n.1(h)). Accordingly, we conclude that the district court did not clearly err in denying Richard a reduction to his offense le vel for acceptance of responsibility. Finally, Richard contends that the district court erred by n ot recogn izing its authority to depart downward on the basis o f
eco nomic hardship to innocent third parties. The district cour t mayimpose a sentence outside the guideline range "if the cour t finds that there exists an aggravating or mitigating circumstance9

of a kind, or to a degree, not adequately taken into consideration by t he Sentencing Commission in formulating the guidelines tha t should result in a sentence different from that described." USSG § 5K2.0 (internal quotations o mitted). A circumstance that is not ordinarily relevant to the sentencing determination may be r elevant under this section provided it is "present to an unusual deg ree and dis tinguishes the case from the `heartland' cases covered by th e guidelines in a way that is im portant to the statutory purposes of sentencing." Id.

We ac cord a unitary abuse-of-discretion review to "[a ] district court's decision to depart from the Guidelines," Koon v. UnitedStates , 116 S. Ct. 2035, 2046 (1996), but a discretionar y dec isionnot to depart from the Guidelines is unreviewable o n appeal absent an unconstitutional motive, United States v

. McCarthy , 97 F.3d 1562, 1578 ( 1996), cert. denied , 117 S. Ct. 1011 (1997); United States v. Deitz , 991 F.2d 443, 447 (8th Cir. 1993). We have jurisdiction to review a district court's decision not to depart only where the decision is based on the district court' s legal lyerroneous determination that it lackedauthority t o consider a particular mitigating factor. Deitz , 991 F.2d at 447. See also Koon , 116 S. Ct. at 2047 ("whether a factor is a permis sible basis for departure under any circumstances is a questionof law, and the court of appeals need not defer to th e district court's resolution of the point"). Inthis case, Richard moved for a downward departure on th e ground that his imprisonment will cause economic hardship t o inno cent third parties, namely his family and those person s emp loyedby his lutefisk business. The district court conclude d that "under the facts of this case, a downward departure based on the impact that the defendant's incarceration will have on hi s business and employees is not warranted." (Sent. Tr. at 163.)10

Thi s record fairly indicates to us that the district cour t recognized its authority to de part in an exceptional circumstance, even though family and community ties are not ordinarily relevant indetermining whether to depart from an identified guidelin e range, see USSG § 5H1.6, but exercised its discretion not t o depart. "The court has considered the defendant's argument i n support of departing downward from the applicable guideline range.

. . . The court concludes that . . . there are no grounds tha t justify a departure from the guideline range in this case." (Sent. Tr. at 1 64.) See United States v. Bieri , 21 F.3d 811, 818 (8t h Cir.), cert. denied , 115 S. Ct. 208 (1994) (recognizing that a district court's refusal to depart "under the facts of this case" indica tes an acknowledgement of authority to depart; departur e simply was not justified). Thus, the district court's decis ion not to depart is unreviewable.

III.
Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

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