NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0300n.06 No. 10-1067 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. JOSE P H COST A P ACHECO, III, Defendan t-Appellant. ) ) ) ) ) ) ) ) ) ON AP P EAL FR OM THE UNITE D STATE S DIST RICT COURT F OR THE EASTE RN DISTRICT OF M ICHIGAN

Before: CLAY, G IBBO NS, and WHITE , Circuit Judges. JULIA SMITH GIBBONS, Circuit Ju d g e. J o s eph Costa Pachec o, I I I was convicted of five counts of bank robber y , in violation of 18 U.S.C. § 2113(a)

. Pachec o appea ls his conviction, arg uing that the district court err ed in denying his reque st for additional investiga tive funds and his reque st for a thirty -day continuance to allow his i nvestig ator to interview additional witnesses. Pachec o further arg ues that the g overnme nt prese nted insu ff i cient evidenc e that the de posits of the banks he r obbed we re F DI C-insured. Pachec o also appea ls his sentenc e. He arg ues that the dis t ri ct court err ed when it declined to g rant a two-leve l downwar d adjustment of his offe nse l evel for acc eptanc e of responsibility

. He further claims that his sentenc e was proce durally unrea sonable beca use the district court fa iled to consider his ar g ument that his criminal history was ove rre prese nted. For the re asons that follow, we aff irm Pachec o’s conviction and se ntence

.I

.

Be tween October 15, 2007 and Oc t ober 29, 2007, Pachec o robbed five banks in easte rn Michig an. His modus operandi was simil ar for eac h robber y : Nea r closing time, Pachec o enter ed the front door of the bank branc h, waited in line, and when called to the teller window, place d a brown paper bag on the counter in front of the teller. The bag h ad wr i t i n g o n it that informed the teller “this is a robbery .” The writing on the bag also direc ted t he teller to put al l of his or her money in the bag

. E ach teller complied with the demand, and Pachec o then left the bank, throug h the front door, with the money . He did not brandish a weapon during any of the robber ies. P ac h ec o wa s arr ested on October 30, 2007 and admitted to the police that he had rob b ed

eac h of the five banks. A g rand jury returne d an indictment char g ing P ac h eco with five counts of bank r obbery

in violation of 18 U.S.C. § 2113(a). Pachec o repr esente d himself pro se in district court proce eding s, with t h e as sistance of stand-by counsel. On Fe bruar y 9, 2009, Pachec o moved to obtain an investiga t o r and for a ninety -da y co n t i n u ance of his trial, which was then schedule d to beg in on Fe bruar y 24, 2009. The district court continued the t ri al, authorized the appointment of an investigator, and authorized the pay

ment $1,000 for investigative service s. On J uly 1 6 , 2009, the court authorized an additional $600 in funds for investigative service s. Pachec o’s jury trial beg an on September 14, 2009. T h at morning , Pachec o reque sted a thirty -day conti n u an ce o f the trial to allow his private investigator to attempt to contac t twenty additional prospec tive witnesses. He also reque sted an additional $200 for investi gat ive

2service s. Pachec o arg ued that the g overnme nt had delay ed in providin g h i s investigator with the

home phone numbers of cer tain witnesses, causing her to unnece ssaril y ex pend 1 1/2 hours obtaining this information. Pachec o also arg ued that a continuance was nece ssary beca use he had not y et been able to revie w the videos o f h i s police interrog ation and the surveillance videos of the robbe ries. The g overnme nt objected to the conti n u an ce, arg uing that the investigator had been provided with the names and home phone numbers of witnesses at least o n e m o n th prior to the first day of trial, aff

ording her ample time to conduct her investiga tion. The go v er n m en t further arg ued that Pachec o could have subpoenaed witnesses with the assistance of the United States Marsha ll Service but had not done so. The district court ruled t h at t here was no impediment to proce eding with voir dire and told Pachec o that he would be g iven an opportunit y t o re v i ew the surveillance and interrog ation videos afte r voir dire was completed. The cou rt co n d u cted voir dire , empane led a jury , and sent the jury home for the day

. Pachec o was then g iven an opportunity to revie w the surveillance and interrog ation videos. Trial proc eede d the next morning as sc heduled. At t ri al, the g overnme nt called the five bank tellers from whom Pachec o had demande d money and play ed the surveillance video from eac h robber y . Eac h teller id en t i fi ed P acheco as the robber in still photos or videos of the robber ies and also identified Pachec o whe n t es t i fy i ng during trial. All of t he tellers also t es t i fied that they had been t raine d by the bank to comply with
notes that demande d money . Howeve r, four of the fi v e t ellers testified that they g ave Pachec o money beca use he de manded it, not beca use bank policy

direc ted them to do so.

3T h e go vernme nt also elicited testimony from J oseph Her rer a, a bank examiner with t h e Fe dera l Deposit I nsuranc e Corporation (“F DI C”). Her rer a testified that the FDI C in sured the deposits of member banks and deposits m ade at eac h of their domestic branc hes. He testified that he had revie wed the FDI C’s insurance rec ords and had con fi rm ed t hat the deposits of eac h of the five banks that had been robbed wer e prese ntly insured by the FDI C, and had been insured in October

2007, when the ba

nks were robbed. P ac h ec o t es tified in his own defe nse. He acknow ledg ed that he had robbed eac h of th e five branc hes but cl aim ed that he did not intend to intimi date any one during the course of the robber ies. He testified that he never threa tened t h e t ellers involved in the robber ies with harm if they failed to c omply

with his demands for money

. Pachec o also soug ht to eli ci t t h e t es t imony of Har sha Shah, a witness to one of the bank

ro b b er ies. Shah was unavailable to testify , and Pachec o ag ree d that the following stipulat i o n would be re ad to the jury

in lieu of her te stimony : One, that the dates listed in the indictment are true and corr ect dates for eac h incident; and two, an employ ee of the C h ar t er One bank in Fa rming ton Har sha Shah wa s prese nt on October 23, 2007. She told investigators that afte r the suspect left the bank, she went out the door to see if a vehi cl e was involved, and s aw the suspect walk east on the north sidewalk of Slocomb to the east lot o f t h e Orc hard condominiums and north toward Orc hard wher e the site [ sic ] line was lost. Pachec o specific ally advised the district court that this stipulation woul d al l ay h is conce rn about the inability

of Shah to testify

in his defense

. The jury returne d a verdic t of g uilty as to eac h count of the indictm en t

. Prior to sentenc ing, the district court revie wed sentenc ing memoran d a s u b mitted by Pachec o and the g overnme nt, a Pre-Sentenc e I nvestig ation Report, multipl e victim impact statements, and two 4letters submitt ed in support o f P ac h ec o . I n his memorandum and ag ain at the sentenc ing

hear ing, Pachec o arg ued that h e wa s entitled to a two-leve l downwar d adjustment on the basis of his acc eptance of responsibility for his criminal conduct. He also arg ued that a criminal history
cate g ory of VI overr epre sented his past cr iminal conduct. T he district court conclude d that the combined adjusted offe nse level for the five robbery convictions was 26 and Pachec o’s criminal history cate g ory was VI

. Acc ording ly , the court deter mined the advisory

Guidelines ra

ng e wa s 120 to 150 months of im prisonment. The court considere d but reje cted Pacheco ’s ar gu ment that he was entitled to a two-leve l adjustment based on his ac ce p t an ce of responsibility

. During the sentenc ing hear ing, the court also acknow ledg ed that Pachec o soug ht a depar ture based upon the overrepre sentation of his criminal h i s t o ry , b u t did not g rant a depar ture. After assessing the rele vant fac tors under 18 U.S.C. § 3553, the court imposed a sente nce of 120 months of imprisonment. I I

. Pachec o raises three arg uments in s u p p o rt o f h i s cl ai m t h at h i s co n v i cti on must be

reve rsed. He first arg ues t hat t he dis trict court erre d i n d en y i n g h is reque st to authorize additional funds for investigative service s, a reque st h e m ad e on the morning his trial beg an. Second, Pachec o con t en d s that the district court err ed in declining to g rant his reque st for a thirty -day conti nuance of his trial to allow his investigator to interview twenty additional witness es t o t h e bank robber ies. Finally , Pachec o arg ues that the g overnme nt prese nted insufficient evidenc e that the deposits of the ba

nks he robbe d wer e F DI C-insured. We addr ess ea ch ar g ument in turn.

A.

5We revie w the district court’s d en i al o f an indige nt defe ndant’s reque st for authorization

for investigative service s under 18 U.S.C. § 3006A for an abuse of di s cr et i o n . United States v. Gilmore , 282 F.3d 398, 406 ( 6th Cir. 2002). Pursuant to 18 U.S.C. § 3006A(e )(1) , a d i s t ri ct court has the authority to authorize 1
pay ment for inves t i gative service s for an indige nt defe ndant. An indige nt defe ndant may obtain authorization for investigative service s “upon a d emonstration that (1) such service s are nece ssary t o m ount a plausible defe nse, and (2) without such authorization, the defe ndant’s case would be prejudice d.” Gilmore , 282 F.3d at 406. How ev er , “[a] district court need not g rant an indige nt’s motion under § 3006A on the off chanc e that the reque ste d s er v i ces might turn up something.” Id. T h e district court did not abuse its discretion in denying Pachec o’s motion for ad d i t i o n al investiga tive funds beca

use Pachec o was able t o m o u n t a plausible defe nse without additional i n v es t i gat i ve service s. Pachec o’s defe nse theory was that he could not be convicted of bank robber y under 18 U.S.C. § 2113(a) , which prohibits bank robber y throug h use of “for ce and violence, or by intimi dation,” beca use he did not use intimi dation to fac ilitate the robber ies. See 18 U.S.C. § 2113(a)

. Pachec o testified at trial that his actions wer e no t i n t en d ed t o i ntimidate the tellers, t h at t h e robber ies wer e nonviolent, that he never brandished a wea pon, and that he never threa tened the tellers involved in the robberi es wi th harm if they failed to comply with his

This section provides: “Counsel for a p er s o n who is financ ially unable to obtain 1 investiga tive, expert, o r other service s nece ssary for adequate repr esenta tion may reque st them in an ex par te application. Upon finding , afte r appropr iate inquiry in a n ex par te proce eding , that the service s are nece ssary and that the person is financ ially u n ab l e t o o b tain them, the court, or the United States mag istrate judg e if the se rvice s are require d in connec tion with a matter over which he has jurisdiction, shall authorize counse l to obtain the service s.” 18 U.S.C. § 3006A(e) (1). 6demands for money . The jurors we re s h o wn surveillance video of eac h robber y and thus wer e prese nted with an objective repr esenta tion of Pachec o’s actions during the robber ies. Fi n al l y , P ac h ec o requested that the jury be informed, throug h a stipulation, that Har sha Shah, a bank employ ee, followed hi m as he left one of t he banks to watch where he was g oing. Pachec o soug ht the i ntroduction of t his evidenc e to show that his actions could not h av e been intim idating if, afte r he completed one of the robber ies, an employ ee felt safe following him out of the building. Pachec o was able to—and did—mo u n t a v i gorous defe nse absent the authorization of additional investiga tive service s. There i s al s o no evidenc e that Pachec o’s defe nse was prejudice d by the district court’s failure t o au thorize an additional $200 in investigative funds. I n Marc h of 2009, six months befor e trial, the court authorized $1,000 for investigative service s. I n J u ly , the court authorized $600 of additional funds. Yet afte r a six -mon t h i n v es tiga tion and the expenditure of $1,600, P ac h ec o ’s i n vestig ator had not identified a single witness to subpoena in support of Pachec o’s defe nse that his actions did not constitute intimi dation. Th ere is simply no indication that any of
t he additional twenty witnesses his investigator wished to interview would have buttr es s ed h i s defe nse, particula

rly beca use the jury hear d the most probative testimony , t h e t es t i m o n y of the tel l er s themselves. Pachec o’s s pecula tion that one of the additi onal wit nesses mi g ht have seen his actions as non-threatening is insufficient to demonstrate that h e was prejudice d by the court’s ref usal to authorize additional investigative service s. B. P ac h ec o n ex t contends that the trial court err ed in denying his reque st for a thirty -day continuance of his trial. We revie w the district court’s denial o f a m o t ion for continuance for an 7abuse of discret i o n . Un ited States v. W arshak , 631 F.3d 266, 298 (6th Cir. 2010). “De nial
amounts to a const i t u t i o n al violation only if there is an unrea soning and arbitra ry insistence upon expeditious n es s in the fac e of a justifiable reque st for delay

. To demonstrate reve rsible err or, the defe ndant must show that the denial resulted in actua l prejudi ce to his defe nse.” Id. (citation and i nterna l quotation marks omitted). “The defe ndant demonstrates actua l prejudice by sho wi n g t h at

a continuance would have made rele vant witnesses availabl e o r added something to the defe nse.” Id. (citation and inter

nal quotation marks omitted). Pachec o argu es t h at the trial court’s failure to g rant his reque st for a thirty -day continuance pursuant t o h i s o ra l motion, made on the morning his trial was schedule d to beg in, impaired his ability to prese nt a defe nse. Pachec o soug ht th e continuance to allow his investiga tor to interview addition al witnesses t o the robberies. He speculated that these additional witnesses would support his defe nse that he d i d n o t u se intimi dation during the robber ies by testify ing that they did not notice that robber ies we re i n p rogre ss or that the tellers rea cted calmly during the robbe ries. Pachec o cannot demonstrate that he was actua lly prejudice d by the district court’s failure
to g rant him a thirty -day continuance

. Pachec o could not articula te wha t evidenc e the additional potential witnesses would offe r—he mere ly specula ted th at s ome would corr oborate his theory that he did not act in an intimi dating manner by testify ing that they had not not iced that a robber y

was taking place and that the tellers rea cted calmly during t h e ro b b er i es. Even if cer tain witnesses testified that they had not noticed the robber ies o ccur ring , or that the tellers rea cted calmly , this would hardly have shown that Pachec o’s acti o n s wo u ld not have cause d “an ordinary person in the teller’s positi o n [ t o] rea sonably infer a threa t of bodily harm from the defe ndant’s 8acts.” See Gilmore , 282 F.3d at 402. “A deman d n o t e i tself, being a tool of the trade of bank

robber s, is a form of intimi dation.” United States v. Smith , 1 F.3d 1 2 4 3 , 1993 WL 303359, at *1 (6th Cir. 1993) (table) (

per curiam ). Be cause such testimony would not have aided Pachec o’s defe nse, he was not prejudice d by the distric t court’s denial of his reque sted continuance

. Acc ording ly , we conclude that the distr i ct co u rt did not abuse its discretion in denying Pachec o’s motion for a thirty -day

continuance of his trial. C. Pachec o next contends t hat the evidenc e prese nted at trial was insufficient to support his convictions beca

use the g overnme nt failed to pro v e t h at the deposits of the banks he robbed wer e FDI C-insured. I n revie wing the sufficie ncy of the evidenc e in support of a criminal conviction,

we must deter

mine “whe ther, afte r v i ewing the evidenc e in the light most favor able to the prosec ution, any rational trier of fac t co u l d h ave found the essential elements of the crime bey ond

a rea sonable doubt.” Davis v. Lafler , 658 F.3d 525, 543 (6th Cir. 2011) ( en banc ) (quoting Ja ck s on v. Virginia , 443 U.S. 307, 319 (1979)) (empha sis in orig inal) (interna l quotation m ar k s omitted). Where, as here , the defe ndant did not move for a judgme nt of acquittal pursuant to Fe dera l Rule of Crimi n al P roce dure 29, this court revie ws the sufficie ncy of the evidenc e only for plain err o r resulti ng in a “manife st miscarr iag e of justice.” United States v. Frazier , 595 F.3d 304, 306 (6th Cir. 2010). “A miscarr iag e of justice exis ts only if the rec ord is d ev o i d o f ev idence p ointing to g uilt.” United States v. Roberge , 565 F.3d 1005, 1008 (6th Cir. 2009) (internal quotation marks omitted). Pachec o arg ues that the g overnme nt i n troduce d insufficient evidenc e to prove that the deposits of the banks he robbed we re FD I C-insured at the time of the robber ies. Pachec o claims 9that the FDI C insurance cer tificate from eac h b ank was improperly introduced under Fe dera l Rule of Evidence 803(6), beca use J oseph Herre ra, a bank ex aminer with the FDI C, was not a “ qualified witness” throug h which to introduce the FD I C certific ates. Pac heco’ s arg ument is meritless. I n a bank robber

y prosec ution under 18 U.S.C. § 2113(a) , the g overnme nt m u st prove that the victim bank’s deposits wer e insured by the FDI C at the time of the robber y in order to establish the jurisdictional element of the offe nse. See United States v. Sandles , 469 F.3d 508, 513 (6th Cir. 2006); United St a t es v. W ood , 780 F.2d 555, 556 (6th Cir. 1986) ( per curiam ); United States v. Rowan , 518 F.2d 685, 692 (6th Cir. 1975). Her rer a, a bank examiner and ten- 2
y ear veter an of th e FD I C , testified that he had revie wed the FDI C’s insurance rec ords and confirme d that the deposits of eac h of the five banks that had b ee n ro b b ed wer e insured by the FDI C at the time of trial. Her rera al s o t est ified that the deposits of eac h bank had been insured in Oct o b er 2 0 0 7

. Fur

ther, the g overnme nt introduced into evidenc e the insurance cer tificates of

eac h of the ba

nks that was robbe d. Business rec ords, such as FDI C insurance cer tificates, must be “pre sented t h ro u gh ‘t he testimony of a custodian or other qualified witness.’” United States v. Jenk ins , 345 F.3d 928, 935 (6th Cir. 2003) (quoting Fe d. R. Evid. 803(6))

. “The phrase ‘other qual i fi ed witness’ is g iven a very broad interpre tation.” United States v. Bake r , 458 F.3d 5 1 3 , 5 1 8 (6th Cir. 2006) (interna l quotation marks omitted). For an “other q u al i fi ed wi tness” to lay the foundation for the

Pursuant to 18 U.S.C. § 2113 (a ), a p er s o n may not “by forc e and violence, or by 2 intimi dation, take[], or at t em pt[ ] to take, from the person or prese nce of another , or obtain[] or attempt[] to obtain by extorti on any proper ty or money or any thing of value belong ing to, or in the car e, custody , control, mana g ement, or posse ssion of, any bank . . . .” Section 2113(f) define s the term “bank,” in pertinent part, as “a ny instit ution the deposits of which are insured by the Feder al Deposit I nsuranc e Corporation.” 18 U.S.C. § 2113(f). 10introduction of b u siness rec ords, he need not have persona l knowledg e of their prepa ration. Id. “All that is require d of the witness is that he or she be familiar with the rec ord -k ee p i n g proce dures of

the org anization.” Id. (interna l quotation marks omitted.) T h e i ntroduction of FDI C cer tificates throug h Her

rer a was proper . I t is appar ent from the

rec ord that Her

rer a was familiar with t h e FD I C ’s rec ord-ke eping proce dures. At the time of trial, Her rer a had been employ ed by t h e FD I C fo r ten y ear s and eig ht months. As part of his job duties

as a bank examiner, he reg ularly acc essed and examined FDI C busines s records. Her rer a testified that the FDI C re gu larly kept rec ords of bank insurance and that those rec ords wer e made at or

near the time the insurance beca me eff ective by a person with knowledg e of the insurance maintained by the banks. Her rer a also testified that a notation was made in the FDI C’s elec tronic d at ab ase if a member bank there afte r cea sed to be insured by the FDI C. Her rer a revie wed th e FD I C re co rds of eac h of the banks robbed prior to testify ing and confirme d that eac h bank ’s d ep o s i t s wer e insured at the time of the robber ies in October 2007. Her rer a also acc essed the FDI C’s elec tronic databa se on the morning b ef o re t rial and confirme d that eac h bank’s deposits

we re s t i l l FDI C-insured. Her rer a was clea

rly a qualified witness throug h which to introduce FDI C insurance rec ords. Acc ording ly , the g overnme nt introduced sufficie nt evidenc e t h e b an k s robbed w ere FDI C-insured. 3

Pachec o also claims that even if the FDI C insurance cer tificates wer e proper ly introduced, 3 the cer tificates did not prove that the deposits of the banks he robbed wer e insured at the time of the robber ies, bec ause the cer tificates pr e-dated the October 2007 robber ies. We have pr eviously held that testimony that a bank was insured by the FD I C at t he time of trial, coupled with an FDI C cer tificate of insu ra n ce t h at pre- dated the robber y , was sufficie nt to prove a bank’s insured status at t he ti me of the robb er y . S ee R o w an , 518 F.2d at 693. Her rer a’s testim ony that the banks wer e insured at the t ime of P ache co’s trial, coupled w i t h t h e i n troduction of FDI C cer tificates that predated the robber ies, was sufficie nt under Rowan to prove the banks’ d ep o s i t s wer e FDI C-insured 11I I I

.

Having conclude d that Pachec o’s conviction must be aff irmed, we n o w t u rn to Pachec o’s challeng es to his sentence

. A. Pachec o first arg

ues that the district court err ed when it ref used to g ran t h i m a two-leve l downwar d adjustment of his offense level for acc eptanc e of responsibility

. Pachec o’s arg ument has two prong s. First, he claims that the district court improperly interpre ted U. S

. S

. G. § 3E1.1 as prohibiting it from awa

rding acc eptanc e of respo n s i b i l i ty cre dit to a defe ndant who proce eded to trial instead of acc epting a plea offe r. Second, Pachec o claims that he was en t i t l ed t o acc eptanc e of responsibility cre dit beca use he never contes t ed h i s fa ctual g uilt, but only challeng ed whether his actions constituted bank robbe ry throug h the use of intimidation. Be cause “[t] he sent en cing judge is in a unique position to evalua te a defe ndant’s

acc eptanc e of responsibility [,]

. . . the deter mination of th e s en t en ci n g judge is entitled to g rea t defe renc e on revie w.” U.S.S.G § 3E1.1, cmt

. n . 5

. “The defe ndant has the burden of demonstrating by a prepon d er an ce o f the evidenc e that a reduc tion for acc eptanc e of responsibility is warra n t ed.” United States v. Banks , 252 F.3d 801, 806 (6th Cir. 2001). “B eca use it [i s] g ener ally a q u estion of fac t, the trial court’s deter mination of whether a defe ndant has acc epted responsibility normally enjoy s the protec tion of the clea rly err oneous standard, and will not be overturne d unless it is without foundation.” Id. (citation and internal quotation marks

at the time of the r obberie s. 12omitted). “Que stions of law, howeve r, such as the appropr iat e appli cation of a g uideline to a

particula r set of f acts, a re subjec t to de novo revie w.” Id.

Contrary to Pachec o’s asser tion, the district court did not improperly interpre t Section 3E1.1 of the Sentencing Guidelines as preve n t i ng it from awa rding Pachec o acc eptanc e of responsibility cre dit solely beca use he proce eded to trial. Section 3E1. 1 p ro v i d es for an offe nse level re duction of up to three points for a de fenda nt’s acc eptanc e of r esponsibility as follows: (a ) I f t he defe ndant clea rly demonstrates acc eptanc e of responsibility for his offe nse, dec rea se the off

ense le vel by

2 levels. (b) I f the defe ndant qualifies for a decr ease under subsection (a) , the o ff en s e l evel deter mined prior to the opera tion of subsection (a) is level 1 6 o r greater, and upon motion of the g overnme nt stating that the defe ndant has as sisted authorities in the investigation or prosec ution of his own misconduct by t i m ely notify ing authorities of his intention to enter a p l ea o f g uilty , there by permitting the g overnme nt to avoid pre p ar i n g for trial and permitting the g overnme nt and the court to allocate their re source s eff

iciently , decr ease the offe nse leve l by 1 additional level. Application note 2 explains: This adjustment is not intended to apply to a defe ndant who puts the g over n m ent to i t s b u rd en of proof at trial by denying the essential fac tual elements of g uilt, is convicted, and only th en ad m i t s g uilt and expresses remorse . Conviction by trial, howeve r, does not auto m at i cally prec lude a defe ndant from consideration for such a reduc t i o n . I n rar e situations a defe ndant may clea rly demonstrate an acc eptanc e of responsibility for his criminal conduct even though h e ex er cis es his const i t utional rig ht to trial. This may occur , for example, wher e a defe ndant g oes to trial to asser

t and prese rve issues that do not rela te to fac tual g uilt ( e. g . , t o m ak e a constitutional challeng e to a statute or a challeng e to the applicability of a statute to his conduct)

. I n eac h such instance, howeve r, a deter mination that a defe ndant has acc epted responsibility will be based primarily upon pre- trial statements and conduct. I n deny ing Pachec o’s reque st for a reduc tion of his offe nse level based on acc eptanc e of responsibility , the district court e x plained:

13The critical, the g ist and perhaps the most important aspect of acce pting r es ponsibili ty is sparing the victims and the g overnme nt, the task and ordea l of a trial proce ss itself

. . . [G] iven t h e choices that y ou made, [I ] cannot find such acc eptanc e of r esponsibility to give the re duction. (R. 89, at 12) (e mphasis added.) By noting that the most important aspec t of acc eptanc e of responsibility is d em o n s t rate d by a d ef en dant’s decision to plead g uilty , the district court acknow ledg ed that it had the authority
to g rant ac ce p t an ce of responsibility cre dit even if a defe ndant chose to proce ed to trial instead of pleading g uilty

. The court ref err ed to multipl e choice s Pachec o made, not mere ly his choice to proce ed to trial, as its basi s fo r d ec l i ning to adjust Pachec o’s offe nse level. The rec ord thus

reve als that the district court d i d n ot automatically deny Pachec o’s reque sted reduc tion based on his failure to plea d g uilty

. Moreove r, Pachec o was not entitled to a two-leve l adjustment for ac ce ptance of responsibi lity beca

use he contested his fac tual g uilt at trial. Thoug h Pachec o admi t t ed t h at h e

was the perpe trator of the robber i es , h e cl ai m ed that he could not be convicted beca use he did not perpe trate the robber ies throug h the use of intimi dation. We have s q u are ly reje cted the arg ument that a b an k ro bber is entitled to an acc eptanc e of responsibility adjustment even though he claims he cannot be convicted under 18 U.S.C. § 2113(a) beca use he did not use intim i d at i o n to perpe trate the robber

y . See United States v. Morrison , 10 F. App’x 275, 284–85 (6t h Cir. 2001), Smith , 1993 WL 303359, at *1; accord United S t a t es v. Mitchell , 113 F.3d 1528, 1534 (10th Cir. 1997) (af firming denial of adjustment for acc eptanc e of re s p o n s i b i lity for bank robber who confe ssed to robber

y but challeng ed int i m i d at i o n element at trial), abrogated on other grounds by United States v. Chamb er s , 5 5 5 U. S

. 122 (2009). He also contested that the banks wer e FDI C14insured at the t i m e t h ey wer e robbed. Be cause Pachec o challeng ed his fac tual g uilt, the district

court did not err i n declining to apply an acce ptance of responsibili ty adjustment under U.S.S .G. § 3E1.1. B. Pachec o also challeng es the proce dural reas o n ab l eness of his sentenc e, arg uing that the district court failed to consider his arg ument t h at h i s criminal history was overr epre sented befor e sent en ci n g him to 120 months of imprisonment. We revie w the rea sonablene ss of a sentenc e imposed b y t h e district court under an abuse- of-discr etion standard. Gall v. United States , 552 U.S. 38, 51 (2007). A sentenc e is proce durally unrea sonable if the district court improperly calc ulates the advisory Guidelines rang e, t re at s t h e Guidelines as mandatory , fails to consider the 18 U.S.C. § 3 553(a) fac tors, selec ts a sentenc e based on clea rly err oneous fac ts, or fails to adequately explain
t h e ch o sen sentenc e—including an explanation for any deviation from the Guidelines rang e. United States v. Houston , 529 F.3d 743, 753 (6th Ci r. 2 0 0 8 ). W h i l e a district court must state in open court the rea sons for imposing a particula r sentenc e, United States v. Grams , 5 6 6 F.3d 683, 686 (6th Cir. 2009) (

per curiam ), it need not “g ive the rea sons for rej ecting any and all arg uments by the parties for alterna tive sentenc es.” United States v. Vo n n er , 516 F.3d 382, 387 (6th Cir. 2008) ( en banc ). Pachec o’s arg ument fails beca us e t h e re cord reve als that the district court considere d and reje cted Pachec o’s arg ument that a criminal history cate g ory o f VI o v err epre sented the sever ity of his past criminal conduct. During the sentenc ing hear ing, the court noted on three separ ate

occa sions that Pachec o soug ht a downwar d depar ture based on the overr epr es en tation of his 15criminal history

. The court asked Pachec o to explain why he so u g ht a depar ture based on

overr epre sentation of his criminal history , and Pachec o responde d that cer tain past con v i cti ons should not be counted beca use they wer e u n co u n s el ed or had been assig ned too many points. After the court conclude d that the appropr iat e amount of points had been assig ned to eac h of Pachec o’s prior convictions, Pachec o stated that he still wished to arg ue “over repr esenta tion of criminal history an d 3 553(a) fac tors.” Pachec o then made an arg ument as to why the § 3553(a) fac tors justified a sentenc e o f fe we r than ten y ear s imprisonment but made no oral arg ument reg arding overr epre sentation of his criminal history

. The co urt stated on the rec ord that it had revie wed Pachec o’s sentenc ing memorandum, in which he arg ued that his criminal history was overr epre sented, and aff orded Pachec o an opportunity to arg ue the issue at the sentenc ing hear ing. The court st at ed its rea sons for imposing

a s en t en ce of 120 months—including the need to provide deter renc e and to provide Pachec o with

nece ssary education and trea tment in an instit utional setting. The court clea rly considere d the

ex t ent of Pachec o’s criminal history in rea ching a proper sentenc e, as evidenc ed by the cou rt stating that Pachec o “ma[de] one mistake afte r another .” Thus, while the district co u rt d i d not expressly state its reje ction of Pachec o’s overr epre sentation arg ument , i t i s ap pare nt, rea ding the
sentenc ing transcr ipt as a whole, that the court considere d Pachec o’s overr epre sentation arg ument and conc luded that a downw ard de parture on that g round wa s inappropria te. I V. For the re asons stated a

bove, we aff

irm Pachec o’s conviction and se ntence

.

16