## The Honorable Frank J. Magill was an active judge at the time this case wa s 1 

## submitted and assumed senior status on April 1, 1997, before the opinion was filed. The Honorable James M. Rosenbaum, United States District Judge for the District 2 

## of Minnesota. United States Court of Appeals 

### FOR THE EIGHTH CIRCUIT

___________ No. 96-3037

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Minnesota. Kymm Elizabeth Hipenbecker, * * Appellant. *

___________ Submitted: February 13, 1997 Filed: June 4, 1997

___________ Before MAGILL, BEAM, and LOKEN, Circuit Judges. 1

___________ MAGILL, Circuit Judge. KymmE. Hipenbecker pled guilty in the district court to the theft 2 and conversion of an annuity and a certificate o f deposit, in violation of 18 U.S.C. § 2314 (1988 & Supp. III 1991). While free on bond prior to her sente ncing, Hipenbecker embezzled funds from her employer. Becaus e Hipenbecker committed this crime while

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free on bo nd, the district court during sentencing declined to make a U.S.S.G. § 3E1.1 acceptance-of-responsibility downward sentencin g adjustment and also made a U.S.S.G. § 5K2.0 upward sentencing departure. Hip enbecker appeals her sentence, arguing that the district cour t impermissiblydouble counted by both applying § 5K2.0 and declining t o apply § 3E1.1. The issue is one of first impres sion in our circuit and we affirm.

I.

On August 6, 1990, Hipenbecker and her husband bought George an d Nancy Walker’s home in Minnesota. After the Hipenbeckers had take n possession of the home, Great Westlife and Annuity Insurance Company (Grea t Wes tlife) mistakenly sent a letter concerning an annuity held by Georg e Walker to the Hipenbecker residence. On August 2, 1991, Hipenbecker wrote
a letter t o Great Westlife. In the letter, Hipenbecker forged Georg e Walker’s signature an d requested that Great Westlife make a wire transfer of George Walker’s annuity proceeds to Hipenbecker's bank account. As a result, Great Westlif e transferred $49,889.83 into Hipenbecker’s account.

In late 1 991, Hipenbecker forged George Walker’s name on a power of att orneydocument and then converted to her possession a certificate o f deposit in the amount of $19,260.92 held by George Walker. On January 8, 1992, Hipenbecker forged the signatures of both George and Nancy Walker on
a deed for real property. Hipenbecker then sold the real property and kep t the $79,410.50 in proceeds. In all, Hipenbecker stole $148,561.25.

On November 8, 1993, the Hennepin County, Minnesota prosecutor’ s office charged Hipenb ecker with the crime of wrongful sale and conversion of the Walkers' real property. She was not char ged with conversion of the
ann uityproceeds or the certificate of deposit at that time, presumabl y because those crimes had not yet been

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discovered. Hipenbecker pled guilty to the charge in Minnesota state cour t on March 2, 1994, and she was sentenced to forty -five months imprisonment. Hipenbecker served twenty months at the Minnesot a Correctional Facility at Shakopee, Minnesota.

While sti ll serving her state sentence, Hipenbecker was interviewed by the Federal Bureau of Investigation. During the interview, Hipenbecker confessed to converting George Walker's annuity and certificate of deposit to her ow n use. On December 20, 1995, Hipenbecker pled guilty in th e district court to hav ing committed these two offenses, in violation of 18 U.S.C. § 2314. The district court and the parties a greed that, under the sentencing guidel ines, Hipenbecker's relevant conduct included the theft an d conversion of the Walkers’ annuity, the theft and conversion of th e certificate of deposi t, and the conversion of the Walkers' real property. Because Hipenbecker's federal sentence was increased due to her state cour t conviction for the Ja nuary 1992 real property conversion, and because she had already served tw enty months for this conviction, the parties and the district court agreed to reduce Hipenbecker’s federal sentence, pursuant to U.S.S.G. §§ 5G1.3(b) and 5K2.0, by twenty months.
Pending sentencing in federal court, Hipenbecker was released o n bond. While free on bond, Hipenbecker became employed by the Minnesot a Association of Community Organizations for Refor m Now (ACORN). Soon after being hired, Hipenbecker embezzled approximately $1500 from ACORN. Upon learning of Hipenbecker’s latest crime, the district court revoke d Hipenb ecker's bond and informed her that the district court wa s contemplating an upward sentencing departure.

The di strict court held a sentencing hearing on July 30, 1996. A t the se ntencing hearing, the district court found that Hipenbecker ha d embezzle d funds from ACORN while she was free on bond. Because of he r continued criminal conduct while free on bond, the district court made a U.S.S.G. § 5K2.0 two-point upward departure. Also

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because of Hipenbecker’s continued criminal conduct while free on bond, th e dis trict court denied Hipenbecker’s request for a U.S.S.G. § 3E1.1 two

point sentence reduction for acceptance of responsibility.
Having imposed a § 5K2.0 upward departure and having declined t o make
a § 3E 1.1 downward adjustment for acceptance of responsibility, th e district court found that Hipenbecker had an offense level of 17 and a criminal history category of V. Hipenbecker's sentencing guidelines range , after subtracting the twenty-month reduction for the time she had served in state prison, was twenty-six to thirty-seven months. The district cour t sentenced Hipenbecker to thirty-six months imprisonment to be followed by three years of supervised release and a special assessment fee of $50

. Hipenbecker appeals.

II.
Hipenbecker argues that the district court impermissibly doubl e counted when it sentenced her because, based on her single act o f embezzling while out on bond, the district court both imposed a U.S.S.G. § 5K2.0 upward departure and denied her request for a U.S.S.G. § 3E1. 1 acceptance-of-responsibility downward adjustment. We disagree.

Double c ounting occurs when “one part of the Guidelines is applie d to increase a defendant’s punishment on account of a kind of harm that has alrea dybeen fully accounted for by application of another part of th e Guidelines.” United States v. Alexander , 48 F.3d 1477, 1492 (9th Cir. ) (quotations and citations omitted), cert. denied , 116 S. Ct. 210 (1995). However, double-counting is permissible if (1) t he Commission intended the
re sult and (2) each statutory section concerns conceptually separat e notions relating to sentencing. See United States v. Saffeels , 39 F.3 d 833, 836 (8th Cir. 1994). We review de novo whether a district cour t impermissibly double

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coun ted in applying the sentencing guidelines. See United States v

. Lamere , 980 F.2d 506, 510 (8th Cir. 1992).

Whet her it is permissible for a district court, based on a defendant’s single criminal act, both to impose a § 5K2.0 upward departure and to deny the defendant’s request for a § 3E1.1 downward adjustment is
an i ssue of first impression in this Circuit. The Eleventh Circuit , however, has addressed this issue in United States v. Aimufua , 935 F.2 d 11 99 (11th Cir. 1991), and we find the Aimufua court’s reasonin g persuasive.
Turning t o the first prong of the double counting test, whether the Commis sion intended the result, we must consider whether the Commissio n intended that a district court could both impose a § 5K2.0 upwar d sente ncing departure and impose another provision of the sentencin g guideli nes based on the same conduct. We agree with the Aimufua cour t that the Commission i ntended this result, id. at 1201, because the policy statement for § 5K2.0 specifically provides that “the court may depart fro m the guid elines, even though the reason for departure is taken int o consideration in the guidelines ( e.g. as a speci fic offense characteristic
or other adjustment), if the court determines that, in light of unusua l circumstances, the guideline level attached to t hat factor is inadequate.” U.S.S.G. § 5K2.0, p.s.
Thus, because § 5K2.0 contemplates t he simultaneous consideration of fa ctors that may be considered elsewhere in the computation of a defen dant’s sentencing guideline range, the Commission must hav e contempla ted double counting when it created § 5K2.0. As a result, an y double counting that might occur by the joint application of § 5K2.0 and § 3E1.1 was intended.

We next consider whether the Commission intended that a distric t court could both decline to grant a § 3E1.1 downward sentencing adjustment and impose another sentencing guidelines section based on the same conduct

. We agree with the Aimufua

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court tha t "section 3E1.1 in its commentary permits the use of the sam e conduct to trigger two separate guideline sectio ns." Aimufua , 935 F.3d at 1201.

In Hipenbecker’s case, embezzlement, like all criminal conduct, i s one factor that coulddetermine her appropriate criminal history category under Chapter Four of the sentencing guidelines--a calculation that must be p erformed for every criminal defendant who is sentenced under th e sentencin g guidelines. At the same time, the commentary to § 3E1. 1 provides that evidenc e of acceptance of responsibility “may be outweighed byconduct of the defendant that is inconsistent with such acceptance of responsibility.” U.S .S.G. § 3E1.1, comment. (n.3). Under the sentencing guidel ines, “conduct of the defendant that is inconsistent with suc h acceptance of responsibility,” id. , includes further criminal conduct. Se e U.S.S.G. § 3E1.1, comment. (n.1(b)).
Section 3E1.1 does not indicate that criminal conduct alread y considered in determi ning the defendant’s criminal history category under Chapter Four of the s entencing guidelines cannot also be considered under § 3E1.1. Instead, both § 3E1.1 and Chapter Four mandate that a district court is to consider criminal conduct in which the defendant has engaged prior to sentencing. By calling for consideration of the same crimina l
con duct in two provisions that would be routinely applied together, th e Commission necessarily contemplated double counting when it create d § 3E1.1. Turnin g to the second prong of the double counting test, we mus t con sider whether both § 5K2.0 and § 3E1.1 concern conceptually separat e notions related to sentencing. See Saffeels , 39 F.3d at 836. We agre e withthe Aimufua court that, when these provisions are applied together, there is no impermissible double counting because the two sections at issu e address “conceptually separate notions relating to sentencing.” Aimufua , 935 F.2d at 1201. The Aimufua court reasoned th at “section 3E1.1 operates to ameliorate a sentence for a defendant who has shown sincere remorse for his crime while an upward departure from the guidelines under section 5K2. 0 enhances an otherwise inadequate sentence.” Id.

## -7- We conclude, as the Aimufua court concluded, that "the Sentencin g Guidelines recognized the potential for double counting in certain cases involving both section 3E1.1 and section 5K2.0.” Id. Our conclusion is bolstered by the fact that, as the Aimufua court also noted, “[t]h e guidelines list no specific rule to prohibit such double counting." Id. Because we conclude t hat the joint application of these two sections does not co nstitute impermissible double counting, we hold that the distric t court did not err when it applied both of these sections to Hipenbecker.

Accordingly, we affirm.
A true copy.

Attest:

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