NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__________ No. 12

- 1344

__________ UNITED STATES OF AMERICA

v. EVENS CLAUDE, Appellant

__________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 2

- 11

- cr - 00090

- 001) District Judge: Hon. Jan E. Dubois

__________ Submitted under Third Circuit LAR 34.1(a) October 29, 2012 Before: SLOVITER, AMBRO and ALDISERT, Circuit Judges

. (F iled : November 1, 2012 )

__________ OPINION OF THE COURT

__________ ALDISERT, Circuit Judge Evens Claude appeals a judgment of the United States District Court for the Eastern District of Pennsylvan ia, sentencing him to 18 months imprisonment for (1) conspir acy to utter counterfeit obligations a nd (2) uttering counterfeit obligations. Claude .2 argues that the District Court erred in denying his request for a two

- level sentence reduction for acceptance of responsibility under the Sentencing Guidelines because it based its decision on allegations und erlying an indictment which remain “unproven” and “in dispute

. ” Brief for Appellant 10. We conclude that the District Court did not err in determining that Claude failed to qualify for the acceptance of responsibility reduction , and will therefore affirm t he judgment of sentence

. I. Because we write primarily for the parties, who are familiar with the facts and the proceedings in this case, we will revisit them only briefly. On June 18, 2010, Claude and a co - defendant were arrested at the Galleria Mall in Houston, Texas, with approximately $10,700.00 in counterfeit currency in their possession . A grand jury indicted Claude for conspiracy to utter counterfeit obligations, in violation of 18 U.S.C. § 371, and uttering counterfeit obligations, in violation of 18
U.S. C. § 472. On October 3, 2011, Claude entered an ope n guilty plea to the indictment and the Court revoked Claude’s bail . The Court revoked bail after determining there was probable cause that Claude had committed felonies related to identity theft w hile on release , and clear and convincing evidence that Claude violated the conditions of his release by continuing to have contact with people engaged in criminal activit y
. The Court based its determinations on extensive evidence presented by the Governme nt that Claude was involved in a wide

- ranging identity

- theft scheme while on release. On January 25, 2012, a federal grand jury in Philadelphia indicted Claude for conspiracy, bank fraud, access device fraud, and aggravated i dentity theft related to the al leged identity

- theft scheme.
A t the January 31, 2012 sentencing hearing for the counterfeiting crimes to which3 Claude had pleaded guilty, the District C ourt denied Cl a ude’s request for a two

- level
sentence reduction for acceptance of responsibility pursua nt to U.S.S.G. § 3E1.1

. The
Government presented much of the same evidence that it had presented at the earlier bail revocation hearing , with a detailed description of Claude’s alleged involvement in the identity

- theft scheme and the incriminating evidence gathered by United States Secret Service agents during a search of Claude’s apartment. This evidence included , among other things, cellular phones that had been used to facilitate identity theft , records of text
message communications in furtherance of id entity theft, computer records indicating unauthorized attempts to access victims’ bank accounts , and a stolen check from a victim of bank fraud

. T he Court considered this evidence and determined over Claude’s objection that he was not entitled to the acce ptance of responsibility reduction, and sentenced him to 18 months’ imprisonment. Claude timely appeals.
II. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 . We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. Although w e review de novo a district court’s interpretation of the Sentencing Guidelines , including U.S.S.G. § 3E1.1, w e review for clear error a d ist r i ct c ourt’s factual determination regarding a criminal defendant’s entitlement to a sentence reduction for accep tance of responsibility.
Un i t ed States v. Ceccarini , 98 F.3d 126, 129 (3d Cir. 1996)

. “Because the sentencing judge ‘is in a unique position to evaluate a defendant’s acceptance of responsibility,’ we give great deference on review to a sentencing judge’s decision not t o app l y the two

- level reduction for acceptance of responsibility to a particular defe nd a n t.” Un i t ed Sta t es v. Barr , 963 F.2d 641, 657 (3d Cir. 1992) (quoting U.S.S.G. § 3E1.1 cmt. n .5).4 III. We conclude that the District Court did not err i n denying Claude a two

- level
sentence reduction for acceptance of responsibility, and will affirm its sentence. Section 3E1.1(a) of the Sentencing Guidelines states: “If the defendant clearly demonstrates acceptance of responsibility for his offense, de crease the offense level by two levels.” The Commentary sets forth a non

- exhaustive list of considerations which may be used in determining whether a defendant qualifies for the two

- level sentence reduction. U.S.S.G. § 3E1.1 cmt. n.1. T wo considerations pa rticularly relevant to the case before us are whether a defendant : “ (A ) truthfully admit[ t ed] the conduct comprising the offense(s) of conviction . . .” and “(B ) voluntar [il] y terminat [ed] or withdr [ew] from criminal conduct or associations .” Id. The Comme ntary further explains that although a defendant’s e ntry of a guilty plea before trial constitute s significant evidence of acceptance of responsibility , a defendant may not qualify for the reduction if he or she engages in conduct inconsistent with that ac ceptance. U.S. S.G. § 3E1.1 cmt. n. 3. This Court has stated that “[a] mechanical plea or confession to an indictment or counts thereof does not necessarily evince a genuine sense of remorse or intent to pursue lawful conduct.” Cecc arini , 98 F.3d at 130. “Co ntinual criminal activity, even differing in nature from the convicted offense, is inconsistent with an acceptance of responsibility and an interest in rehabilitation.” Id. Claude argues that the District Court inapprop r iately considered his alleged ident ity

- theft activities as evidence of conduct that disqualifies him for a sentence reduction. Claude considers the evidence provided by the Government to be “simply an explanation of the basis for the arrest.” Brief for Appellant 10. He argues that because5 “ [t]he Government ’s allegations remain unproven and the charges are still in dispute , ” this evidence is insufficient to support denial of the sentence reduction. Id. We find no merit in this argument. To be sure, this Court has prohibited the use of bare a rrest record s alone to increase a defendant’s sentence

. See United States v. Berry , 553 F.3d 273, 284 (3d Cir. 2009) (holding that “a bare arrest record

— without more

— does not justify an assumption that a defendant has committed other crimes and it therefor e can not [sic] support increasing his/her sentence in the absence of adequate proof of criminal activity”)

. First, we note that denial of a sentence reduction is n ot actually a sentence increase , but more importantly, here the District Court had before it significantly more evidence than a bare arrest record

. F acts relevant to sentencing, such as the facts of Claude’s conduct here, need only be proved by a preponderance of the evidence. See United States v. Grier

* * * * * , 475 F.3d 556, 568 (3d Cir. 2007) (en banc)

. The Government introduced detailed evidence of Claude’s criminal activities and involvement with individuals engaged in criminal activity after his arrest and during the pretrial period . This evidence was sufficient for the Court to conclude by a prepond erance that Claude continued his criminal conduct while on release , and c onsistent wi th U.S.S.G. § 3E1.1 cmt. n.3 , the Court determined that this conduct outweighed any acceptance of responsibility suggested by Claude entering a guilty plea

. In light of th e substantial and
exten sive evidence proffered by the G overnment , w e conclude that the Dist r ict C ourt’s determination that Claude did not qualify for an acceptance of responsibility two

- level sentence reduction was not clearly erroneous.

We hav e considered all of the arguments advanced by the parties and conclude6 that no fu rther discussion is necessary. The judgment of the D istrict C ourt will be
AFFIRMED

.