The Honorable Frank J. Magill was an active judge at the time this case was

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.

Kymm E. Hipenbecker pled guilty in the district court to the theft 2

and conversion of an annuity and a certificate of deposit, in violation of

18 U.S.C. § 2314 (1988 & Supp. III 1991). While free on bond prior to her

sentencing, Hipenbecker embezzled funds from her employer. Because

Hipenbecker committed this crime while 
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free on bond, the district court during sentencing declined to make a

U.S.S.G. § 3E1.1 acceptance-of-responsibility downward sentencing

adjustment and also made a U.S.S.G. § 5K2.0 upward sentencing departure.

Hipenbecker appeals her sentence, arguing that the district court

impermissibly double counted by both applying § 5K2.0 and declining to

apply § 3E1.1. The issue is one of first impression in our circuit and we

affirm.

I.

On August 6, 1990, Hipenbecker and her husband bought George and

Nancy Walker’s home in Minnesota. After the Hipenbeckers had taken

possession of the home, Great Westlife and Annuity Insurance Company (Great

Westlife) mistakenly sent a letter concerning an annuity held by George

Walker to the Hipenbecker residence. On August 2, 1991, Hipenbecker wrote

a letter to Great Westlife. In the letter, Hipenbecker forged George

Walker’s signature and requested that Great Westlife make a wire transfer

of George Walker’s annuity proceeds to Hipenbecker's bank account. As a

result, Great Westlife transferred $49,889.83 into Hipenbecker’s account.

In late 1991, Hipenbecker forged George Walker’s name on a power of

attorney document and then converted to her possession a certificate of

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 kept

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 Hipenbecker with the crime of wrongful sale and conversion

of the Walkers' real property. She was not charged with conversion of the

annuity proceeds or the certificate of deposit at that time, presumably

because those crimes had not yet been 
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discovered. Hipenbecker pled guilty to the charge in Minnesota state court

on March 2, 1994, and she was sentenced to forty-five months imprisonment.

Hipenbecker served twenty months at the Minnesota Correctional Facility at

Shakopee, Minnesota.

While still 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 own use. On December 20, 1995, Hipenbecker pled guilty in the

district court to having committed these two offenses, in violation of 18

U.S.C. § 2314.

The district court and the parties agreed that, under the sentencing

guidelines, Hipenbecker's relevant conduct included the theft and

conversion of the Walkers’ annuity, the theft and conversion of the

certificate of deposit, and the conversion of the Walkers' real property.

Because Hipenbecker's federal sentence was increased due to her state court

conviction for the January 1992 real property conversion, and because she

had already served twenty 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 on

bond. While free on bond, Hipenbecker became employed by the Minnesota

Association of Community Organizations for Reform Now (ACORN). Soon after

being hired, Hipenbecker embezzled approximately $1500 from ACORN. Upon

learning of Hipenbecker’s latest crime, the district court revoked

Hipenbecker's bond and informed her that the district court was

contemplating an upward sentencing departure. 

The district court held a sentencing hearing on July 30, 1996. At

the sentencing hearing, the district court found that Hipenbecker had

embezzled funds from ACORN while she was free on bond. Because of her

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, the

district court denied Hipenbecker’s request for a U.S.S.G. § 3E1.1 twopoint sentence reduction for acceptance of responsibility. 

Having imposed a § 5K2.0 upward departure and having declined to make

a § 3E1.1 downward adjustment for acceptance of responsibility, the

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 court

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 double

counted when it sentenced her because, based on her single act of

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 counting occurs when “one part of the Guidelines is applied

to increase a defendant’s punishment on account of a kind of harm that has

already been fully accounted for by application of another part of the

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) the Commission intended the

result and (2) each statutory section concerns conceptually separate

notions relating to sentencing. See United States v. Saffeels, 39 F.3d

833, 836 (8th Cir. 1994). We review de novo whether a district court

impermissibly double 
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counted in applying the sentencing guidelines. See United States v.

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

Whether 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 issue of first impression in this Circuit. The Eleventh Circuit,

however, has addressed this issue in United States v. Aimufua, 935 F.2d

1199 (11th Cir. 1991), and we find the Aimufua court’s reasoning

persuasive. 

Turning to the first prong of the double counting test, whether the

Commission intended the result, we must consider whether the Commission

intended that a district court could both impose a § 5K2.0 upward

sentencing departure and impose another provision of the sentencing

guidelines based on the same conduct. We agree with the Aimufua court

that the Commission intended this result, id. at 1201, because the policy

statement for § 5K2.0 specifically provides that “the court may depart from

the guidelines, even though the reason for departure is taken into

consideration in the guidelines (e.g. as a specific offense characteristic

or other adjustment), if the court determines that, in light of unusual

circumstances, the guideline level attached to that factor is inadequate.”

U.S.S.G. § 5K2.0, p.s. 

Thus, because § 5K2.0 contemplates the simultaneous consideration of

factors that may be considered elsewhere in the computation of a

defendant’s sentencing guideline range, the Commission must have

contemplated double counting when it created § 5K2.0. As a result, any

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 district

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 that "section 3E1.1 in its commentary permits the use of the same

conduct to trigger two separate guideline sections." Aimufua, 935 F.3d at

1201. 

In Hipenbecker’s case, embezzlement, like all criminal conduct, is

one factor that could determine her appropriate criminal history category

under Chapter Four of the sentencing guidelines--a calculation that must

be performed for every criminal defendant who is sentenced under the

sentencing guidelines. At the same time, the commentary to § 3E1.1

provides that evidence of acceptance of responsibility “may be outweighed

by conduct of the defendant that is inconsistent with such acceptance of

responsibility.” U.S.S.G. § 3E1.1, comment. (n.3). Under the sentencing

guidelines, “conduct of the defendant that is inconsistent with such

acceptance of responsibility,” id., includes further criminal conduct. See

U.S.S.G. § 3E1.1, comment. (n.1(b)). 

Section 3E1.1 does not indicate that criminal conduct already

considered in determining the defendant’s criminal history category under

Chapter Four of the sentencing 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 criminal

conduct in two provisions that would be routinely applied together, the

Commission necessarily contemplated double counting when it created

§ 3E1.1.

Turning to the second prong of the double counting test, we must

consider whether both § 5K2.0 and § 3E1.1 concern conceptually separate

notions related to sentencing. See Saffeels, 39 F.3d at 836. We agree

with the Aimufua court that, when these provisions are applied together,

there is no impermissible double counting because the two sections at issue

address “conceptually separate notions relating to sentencing.” Aimufua,

935 F.2d at 1201. The Aimufua court reasoned that “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. 
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We conclude, as the Aimufua court concluded, that "the Sentencing

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]he

guidelines list no specific rule to prohibit such double counting." Id.

Because we conclude that the joint application of these two sections does

not constitute impermissible double counting, we hold that the district

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.