NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

______________ No

. 15

- 1014

______________ UNITED STATES OF AMERICA,

v. AMY JENKINS,

Appellant

______________ APPEAL FROM THE UNITED STATES DISTRICT COURT F OR THE MIDDLE D ISTRICT OF PENNSYLVANIA

(D.C. No

. 4

- 13

- CR

- 0 0 219

- 001 ) District Judge: Hon. Matthew W. Brann

______________ Submitted Under Third Circuit LAR 34.1(a)

October 9 , 2015

______________ Before: SHWARTZ , KRAUSE, and COWEN , Circuit Judges

.

(Filed: November 6, 2015 )

___ ___________ OPINION *

______________ KRAUSE , Circuit Judge

.

* This disposition is not a n opinion of the full Court and , pursuant to I.O.P. 5.7 , does not constitute binding precedent

.2

Amy Jenkins appeals the District Court ’s judgment imposing sentence after Jenkin’s guilty plea without credit for a three

- level offense reduction for acceptance of responsibility . The Dist r ict Court based its denial on c riminal conduct that Jenkins allegedly committed after the entry of her guilty plea and for which she faced state criminal charges that were dismissed before sentencing

. W e will affirm.
I. On October 10, 2013, a grand jury indicted Jenkins on eight counts for harvesting personal information from mail that she s tole from residential mailboxes

— almost 1,000 opened and unopened pieces

— and using that information to open retail accounts and incur unauthorized credit card and debit card charges. O n Ma y 19, 2014, Jenkins ple ade d guilty to two counts, theft o f mail matter in violation of 18 U.S.C. § 1 7 0 8 and fraud in
connection with access devices in violation of 18 U.S.C. § 102 9 , and she was r eleased the same day on an unsecured app earance bond and subject to conditions of release, including that she not commit any othe r local, state or federal crime

. W hile on pretrial release, Jenkins was arrested for two thefts that she allegedly committed with her then

- boyfriend, Nigel Correa

. Ac cording to a complaint and police affidavit, o n June 28, 2014, Jenkins and Corre a entered a convenience store in Susquehanna Township in Dauphin County and pur chased a $100 Visa gift card

. Claiming that he did not realize the card was valid only within th e United States, Correa then requested a cash refund and provided the store clerk not the active card but a second , inactive Visa gift card that Jenkins secretly handed him while he waited in line. Because store policy did not permit returns on gift cards , the store clerk called the manager, who3

on arrival recognized Correa as the individual who had used the same story to obtain a refund on a gift card in December 2013. The Susquehanna Township police officer investigating the incident issued a press

re lease that include d store surveillance photographs of Correa and J enkins. Within a day, a police officer in Lower Allen Township in Cumberland County contacted him to report that the same two suspects had been caught on surveillance video at a Sears store returning a coffeemaker without a receipt

. About a week and a half later, the Susquehanna Township police officer showed the convenience store manager a photo array, and the manager positively identified Jenkins as the woman who had assisted
Correa

. A ccording to a second complaint and police affidavit , on June 29, 2014, when attempting to return the coffeemaker with Correa, Jenkins presented to a Sears store clerk

a false or stolen Pennsylvania driver’s license bearing the name “Samantha Steinbrenner,” and claimed that her married name was “Samantha Correa

. ” App. 106,
108. Jenkins and Correa received a Sears gift card for the return amount and persuaded the store clerk to transfer the balance to a Visa gift card. Correa then asked to have a pillow “ s canned” to determine if the Visa gift card had been activated . App. 108. When the store clerk refused, Correa and Jenkins left the store with the pillow without paying for it and fled the area in the same vehicle

. A Sears employee reported the theft of the pillow and the suspected fraudu lent return of the coffee maker and noted that store staff had recognized Jenkins and Correa from a local news broadcast covering the convenience store incident in Susquehanna Township

. The Sears employee provided the pol ice with4

the receipt from the coffeemaker return transaction, which listed Correa’ s name, along with a phone number and Sunbury address listed for both Correa and a “Samantha
Correa

. ” A Lower Allen Township police investigator called the number listed o n the receipt and questioned Correa, who admitted being involved in the Sears incident but denied knowing a woman named Samantha, stating that his girlfriend’s name was Amy. The investigator discovered that Correa’s girlfriend was Amy Jenk ins, who had a
S u nbury address and was listed as being on “[ p ] robation. ” The investigator called Jenkins’s probation officer, who identified the woman in pictures from the Sears incident as Amy Jenkins.
A rrest warrants were issued against Jenkins and Correa in Dauphin County and Cumberland County for, among other things, theft by deception and identity theft , and o n July 18, 2014, a superseding violation report was filed in this case , alleging Jenkins had violated the terms of her pretrial release

. At a revocation hear ing on August 7, 2014, the Magistrate Judge considered the complaints and affidavits filed in connection with the

new state charges against Jenkins

. F inding probable cause that Jenkins had committed the offense s in violation of the condition of her superv ision mandating that she not commit a federal, state, or local crime while on release , the Magistrate Judge ordered that Jenkins be detained pending sentencing. Jenkins filed a motion for review and revocation of the detention order, which the District Co urt denied at a hearing on September 3, 2014 on the grounds that no condition or combination of conditions would ensure the safety of the community

. On November 19, 2014, the state charges against Jenkins were5

dismissed. Jenkins then filed a second motio n challenging her detention

. At a hearing on December 12, 2014, the prosecution informed the District C ourt that according to the state prosecutor who handled the Dauphin County case, there was sufficient evidence to prosecute Jenkins on those charges , bu t they were dropped because her co

- defendant, who was viewed as the more culpable participant, had entered a guilty plea, and because Jenkins was facing sentencing on more serious federal charges for mail fraud. T he District Court released her to home det ention for the five days leading up to her sentencing. In her sentencing memorandum and at her December 17, 2014 sentencing hearing, Jenkins argued that she was entitled to a three

- level reduction for acceptance of responsibility on the basis of her guil ty plea, as provided in her original draft Presentence Investigation Report (PSR) , and that this reduction should not have been removed on the basis of state charges that were ultimately dismissed

. 1 The reduction would have yielded a prison term of 24 to 30 months. A dopting the G overnment’s position that although the charges were dismissed , there was probable cause to believe Je nkins had committed the
state offense s , the District Court denied Jenkins the reduction as recommended by the final PSR and calcu lated a criminal history category of three and an offense level of 18 , for a Guidelines impris o nment range of 33 to 41 months. Jenkins was sentenced to a prison term of 36 months on each c ount, to be served concurrently, a two

- year term of

1 At her sentencing, Jenkins also argued for a downward departure and a variance based on her mental and physical health issues, her alleged diminished mental c apacity during the commission of the offense, the alleged overstatement of her criminal history, and the totality of circumstances. The District Court’s rejection of these arguments as grounds for a downward departure is not before us on appeal.6

supervised rele ase , restitution , 50 hours of community service, and a $200 special

assessment. II. The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. Although we exercise plenary re view over t he District Court’s interpretation of the S entencing Guidelines, whether a criminal defendant “clearly demonstrates accep tance of responsibility ” for her offense such that s he is entitled to a reduction in her offense level under § 3E1.1 is an

“ essentially factual” determination that we review for clear error. United States v. Ortiz , 878 F.2d 125, 128 (3d Cir. 1989). “ When reviewing a district court’ s denial of acceptance of responsibility, we afford the district court great deference because t he sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility.” United States v. Batista , 483 F.3d 193, 198 (3d Cir. 2007) (quoting United States v. B oone , 279 F.3d 163, 193 (3d Cir. 2002) ) (internal quotation marks

om itted).
III. The District Court did not err in denying Jenkins a sentence reduction for acceptance of responsibility under § 3E1.1 of the S entencing Guidelines

. The Commentary to the Sentencing Guidelines provides a nonexhaustive list of factors that
may be considered in determining whether a defendant qualifies for this reduction in offense level. These factors include “ voluntary termination or withdrawal from criminal conduct or associations

. ” U.S.S.G. § 3E1.1 cmt. 1(B ). The Commentary further7

specifi es that , a lthough “[e] ntry of a plea of guilty prior to the commencement of trial combined with truthfully admitting the conduct compri sing the offense of convi ction” constitutes “significant evidence” weighing in favor of the reduction, “ this evidence may be outweighed by conduct of the defendant that is inconsistent with suc h acceptance of responsibility.” Id. § 3E1.1 cmt.3. Accordingly, t his C ourt has found that “ [c] ontinual criminal activity, even differing in nature from the convicted offense, is inc onsistent with an acceptance of responsibility an d an interest in rehabilitation, ” and that violating an express condition incorporated into the court order releasing the defendant on bail may be appropriately considered by the court in determining whether to grant a reduction in offense level. United States v. Ceccarani , 98 F.3d 126, 130 (3d Cir. 1996)

. Here, t he G overnment contended that there was probable cause to believe that , while r eleased on her own recognizance , Jenkins committed two fraud

- related offenses that were similar in nature to the federal offenses for which she faced sentencing , and produced significant evidence to support that contention

. T he District Court reviewed the complaints and sworn affidavits from law enforcement officers suppor ting Jenkins’s participation in the June t hefts

— detailing eye witness identification, surveillance footage , the statements of her alleged co

- conspirator , and the statements of her probation officer

— and appropriately found that Jenkins had persisted in her c riminal conduct and associations and therefore did not qualify for a reduction in offense level under § 3E1.1

. Jenkins argues that the District Court should not have denied the reduction b ased on state charges that were dismissed, and that the court’s cons ideration of offenses for which she was arrested but which were not adjudicated amounted to an “unsupported8

assumption ” in violation of her due process rights

. Appellant’s Br. at 14

- 15. T his argument is without merit. R epeatedly, we have emphasized that “we require that
information used as a basis for sentencin g under the Guidelines . . . have sufficient indicia of reliability to s upport its probable accuracy,” United States v. Freeman , 763 F.3 d 322, 337 (3d Cir. 2014) (alteration in original) (citation and internal quotation marks omitted);

see U.S.S .G. § 6A1.3(a). However, “f acts that are considered at sentencing, as a general matter, must be proved by a preponderance of the evidence, ” not beyond a reasonable doubt. United States v. Berry , 553 F.3d 27 3, 280 (3d Cir. 2009) (citing United States v. Watts, 519 U.S. 148, 156 (1997) ( per curiam ) ) ; see United States v. Grier , 475 F.3d 5 56, 568 (3d Cir. 2007) (en banc). A s explained above, the G overnment’s evidence as to Jenkins’s alleged commission of two s tate offenses more than meet s this standard, and the sufficiency of this evidence is not undermined by the mere fact that the charges were dismissed. See Watts , 519 U.S. at 157 (a sentencing court may consider acquitted conduct if demonstrated by a prepond erance of the evidence); United States v. Baird , 109 F.3d 856, 864

- 65 (3d Cir. 1997) ( extending Watts to conduct underlying dismissed counts where the conduct is in character similar to the offense of conviction )

. Inde e d, a s the
G overnment explained at Jen kins’s sentencing hearing, at least some of the state charges against Jenkins were dismissed only because her seemingly more culpable co

- defendant had entered a guilty plea and because Jenkins was already facing sentencing on more

se rious charges in federa l court.
T his case is readily distinguishable from our decision in United States v. B erry , in which we held that “ a bare arrest record ” alone cannot justify a sentence increase , 5539

F.3d at 284, and rejected the sentencing court’s “unsupported speculation ” about why prior charges against the defendant may have been nol prossed , id. at 2 81

. At issue in this case is not a sentence increase but the denial of a sentence reduction. M oreover , here the District Court had si gnificantly more evidence than a “ bare arrest record ” to support Jenkins’ s involvement in fraud

- related offenses while on pretrial release

. Having been provided this evidence , the District Court did not and needed not engage in speculation about Jenkins’s background to determine that she did n ot qualify for a sentence reduction for acceptance of responsibility

. IV . Because the District Court did not err in denying Jenkins a three

- level sentence reduction for acceptance of responsibility , w e will affirm its judgment.