1

The Honorable Lyle E. Strom, United States District Judge for the District of

Nebraska, sitting by designation.

2

The Honorable Jean C. Hamilton, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-2216

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Karen Diane Hatton, *

* [UNPUBLISHED]

Appellant. *

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Submitted: January 11, 2010

Filed: January 19, 2010

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Before MURPHY and BYE, Circuit Judges, and STROM,1

 District Judge.

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PER CURIAM.

Karen Hatton pleaded guilty to unlawfully using the access devices of another

(credit card fraud) in violation of 18 U.S.C. § 1029(a)(5). The district court2

sentenced her to twenty-four months of imprisonment followed by three years of

supervise release, denying Hatton's request for acceptance of responsibility under U.S.
-2-

Sentencing Guidelines Manual (U.S.S.G.) § 3E1.1. Hatton appeals, contending the

district court erred in denying her request for acceptance of responsibility. We affirm.

Hatton's offense conduct consisted of using her employer's credit accounts to

charge unauthorized personal expenses. Over the course of less than a year, Hatton

made over $89,000 in unauthorized charges. Her plea agreement provided in relevant

part that "any actions . . . which become known to the government subsequent to this

agreement and are inconsistent with the defendant's acceptance of responsibility, but

not limited to criminal conduct, are grounds for the loss of acceptance of

responsibility pursuant to Section 3E1.1."

After Hatton pleaded guilty, the government learned Hatton had been making

personal purchases using her mother's credit card, essentially continuing the same

pattern of conduct with which she was charged, but substituting her mother's credit

card for her employer's. Between November 29, 2007, and January 28, 2009, the

balance on the mother's credit card rose from $80.31 to $20,200.10. The abusive use

of the mother's credit card continued after Hatton pleaded guilty. In the course of its

investigation into the use of the credit card, the government also discovered Hatton

had withdrawn more than $42,000 from her mother's certificates of deposit and a

savings account. Although Hatton was a trustee of her mother's accounts and

therefore authorized to make the withdrawals, the funds in the accounts were intended

to provide support for Hatton's seventy-nine year-old mother, and the withdrawals

were made without her mother's knowledge. Some of the withdrawals occurred after

Hatton pleaded guilty. Based on this conduct, the district court denied Hatton's

request for a two-level reduction in the calculation of her advisory Guidelines range

under U.S.S.G. § 3E1.1.

"We review a district court's denial of an acceptance of responsibility

adjustment under U.S.S.G. § 3E1.1 for clear error." United States v. Winters, 416

F.3d 856, 860 (8th Cir. 2005) (citing United States v. Patten, 397 F.3d 1100, 1104-05
-3-

(8th Cir. 2005)). "A district court's factual determination on whether a defendant has

demonstrated acceptance of responsibility is entitled to great deference and should be

reversed only if it is so clearly erroneous as to be without foundation." Id. (citing

United States v. Arellano, 291 F.3d 1032, 1034 (8th Cir. 2002)).

Hatton argues the district court erred in denying acceptance of responsibility

because Hatton was authorized to use her mother's card, and thus her abusive use of

the credit card was not "criminal conduct." Hatton contends § 3E1.1 limits a district

court's consideration to criminal conduct. See U.S.S.G. § 3E1.1 cmt. n. 1 (providing

a district court may consider "voluntary termination or withdrawal from criminal

conduct or associations"). We disagree. The list of factors a district court may

consider in determining whether a defendant qualifies for acceptance of responsibility

is not exhaustive. See id. ("In determining whether a defendant qualifies [for

acceptance of responsibility], appropriate considerations include, but are not limited

to, the following . . .") (emphasis added). The abusive use of the mother's credit card

was clearly similar to the unlawful manner in which she abused her employer's credit

accounts and thus could be considered by the district court. Cf. United States v.

Rodriguez, 979 F.2d 138, 140 (8th Cir. 1992) (holding that defendant's demonstrated

propensity to repeatedly commit conduct similar to the charged conduct can be

considered by the district court in evaluating defendant's acceptance of responsibility).

We therefore conclude the district court did not clearly err in denying a reduction for

acceptance of responsibility.

We affirm.

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