The Honorable David S. Doty, United States District Judge for the District of 1 Minnesota. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 98-1059

_____________ United States of America, * * Appellee, * * Appeal from the United States
v. * District Court for the * District of Minnesota. Joan Valentine Mohamed, also known * as Joan Valentine and Joan Valentine * Kerr, * * Appellant. *

_____________ Submitted: October 19, 1998 Filed: November 18, 1998

_____________ Before BOWMAN, Chief Judge, RICHARD S. ARNOLD, and MORRIS SHEPP ARD ARNOLD, Circuit Judges.

_____________ BOWMAN, Chief Judge. Pursuant to a written plea agreement, Jean Valentine Mohamed pleaded guilty to committing one count of bankruptcy fraud in violation of 18 U.S.C. § 152 (1994). The Dis trict Court calculated Mohamed's sentence pursuant to the United State s 1 Sentencing Guidelines ("U.S.S.G." or "the Guidelines") and sentenced her to 24 monthsF or

the sake of consistency, we maintain the numbering system used in th e 2
ea rlier opinions of this Court to refer to opinions involving defendant Mohamed

. Therefo re, the full numerical order of the cases is as follows: Mohamed I refers t o Mohamedv. Kerr , No. 94-2953 (8th Cir. Oct. 27, 1994) (unpublished); Mohamed II refers to Mohamed v. Kerr , 5 3 F.3d 911 (8th Cir.), cert. denied , 516 U.S. 868 (1995); Mohamed III

refers to Moh amed v. Kerr , 91 F.3d 1124 (8th Cir. 1996); Mohamed IV refers to Mohamed v. UN UM Life Ins. Co. , 116 F.3d 480 (8th Cir. 1997) (table); and Mohamed Vto Mohamed v. UNUM Life Ins. Co. , 129 F .3d 478 (8th Cir. 1997). This Court has also decided a sixth related case, Kerr v. Valentine , No. 97-3615 (8th Cir. July 14, 1998) (unpublished).
-2- of incarceration. Mohamed appeals, claiming the District Court erred when it relie d

on factual findings in her presentence investigative report ("PSR") to which she ha d objected. Mohamed argues this error resulted in the improper imposit ion of a two-level enhancem ent

for violation of a judicial order, injunction, decree, or process, and th e improper denial of a three-level reduct ion for acceptance of responsibility. We affirm.

I.

T he underlying facts of this case have been set forth by this Court in a number of previou s opinions, see , e.g. , Mohamed v. Kerr , 53 F.3d 911, 912-13 (8th Cir. ) ( MohamedII ), cert. denied , 516 U.S. 868 (1995); Mohamed v. Kerr , 91 F.3d 1124, 2 1125 (8th Cir. 1996) ( Mohamed III ); therefore , we provide only those facts relevant to this opi nion. In July 1994, a federal district court granted Jean Valentine Mohame d

summ ary judgment, thereby awarding her more than $260,000 in life insuranc e proceeds p aid on the death of her ex-husband, Ivan Kerr. No stay having bee n requested, t

he insurance proceeds were turned over to Mohamed. Nine months later, this Court in Mohamed II reversed the judgment of the district court and, remandin g th e case, ordered the district court to enter summary judgment in favor of Ivan Kerr's estate. S ee Mohamed II , 53 F.3d at 917. The district court then entered summar y judgment in favor of Ivan Kerr's estate, and ordered Mohamed to repay the proceeds to the estate. When Moham ed did not pay, her stepson Kevin Kerr ("Kerr"), personalMo hamed denies that the assets she was concealing could be traced to th e 3 insurance proceeds. She claims she spent al l the insurance proceeds in the nine-month period between the district court's summary judgment an d the reversal of that judgment in Mohamed II

. -3- repr esentative and a beneficiary of Ivan Kerr's estate, moved the district court an d obtainedthree orders, two in May 1995 and a third in January 1996 ("the May 1995 and January 1996 orders"), to en force the district court's judgment in the estate's favor and to prevent Mohamed from dissipating her assets.
Mohamed, however, did not comply with the May 1995 and January 1996 orders and has not repaid Iv an Kerr's estate. Instead, according to the indictment, Mohamed engag ed in a series of transactions (such as transferring assets to her husband o r
conver ting her assets to traveler's checks and smuggling them out of the country) t o conceal the remaining insurance proceeds and her other assets from Kerr. 3
Mohamed also sought to prevent the estate from collecting on the district court's judgment by filing four bankruptcy petitions between July and October 1995. In the first of t hese petitions, according to uncontroverted factual allegations in the PSR , Mohamed failed to disclose cash and other assets in her possessio n and recent transfers of funds she had made to her husband.
In May 1997, a federal grand jury returned an eighteen-count indictment against Mohamed. Count I of this indictment alleged that Mohamed knowingly an d fraudul ently made false statements in her first bankruptcy petition in violation of 1 8 U.S.C. § 152 (1994). The remaining counts dealt with Mohamed's conduct i n concealing whatever remained of t he life insurance proceeds and her other assets after this Cou rt issued its opinion in Mohamed II . These counts asserted that Mohame d committed mail fraud (Counts II to VI), wire fraud (Count VII), money launderin g (Counts VIII to XII), failure to report monetary instruments (Counts XIII and XIV),-4-

andperjury (Counts XV to XVIII), all as part of a scheme to prevent Kerr fro m enforcing Mohamed II . The indictment also included a forfeiture count.

InJuly 1997, less than one week before trial, Mohamed entered into a written plea agreement with federal prosecutors. Pursuant to this agreement, Mohame d pleaded g uilty to Count I, bankruptcy fraud, and the government moved for dismissal of all other counts in the indictment at sentencing.

A federal probation officer then prepared the PSR, to which Mohamed raise d three objections. First, Mohamed contested the amount of loss her bankruptcy fraud had caused. Second, Mohamed o bjected on two grounds to the PSR's finding she had violated a judicial order. Mohamed argued that the court orders she had allegedl y violated, the Ma

y 1995 and January 1996 orders, were not relevant to the bankruptcy fraudcount to which she had pleaded guilty. She also denied in various manners the factual allegations in the PSR concerning her alleged dissipation of assets and violation of the May 1995 and June 1996 orders. See , e.g. , Defendant's Position Regardin g Sentencing Factors, at 5 (Nov. 28, 1997) (denying that "Mohamed knowingly violated [May 1995 and January 1996] orders"); Sentencing Tr. at 8 (reporting Mohamed' s attorney denied "that there was a knowing violation of a court order"); id. at 34-3 5 (reiteratin g Mohamed's objection "to the factual statements of the [PSR] to the extent that the y related to the insurance proceeds and whatever it is that happened to them," but indi cating the defendant had no objection to the allegations "related to th e ban kruptcy fraud"). Third, Mohamed argued that she should receive a three-leve l reduction for acceptance of responsibility.

After hea ring Mohamed's arguments on these three points, the District Court determined that Mohamed should be sentenced to 24 months of incarceration, followed by a three-y ear period of supervised release. To arrive at its determination of th e
a p propriate period of incarceration, the District Court adopted the parties' stipulation in M ohamed's plea agreement that the base offense level for bankruptcy fraud was 6.Guidel ine § 2F1.1(b)(3)(B), in relevant part, reads as follows: "If the offens e 4 invo lved. . . violation of any judicial or administrative order, injunction, decree, o r proces s not addressed elsewhere in the guidelines, increase by 2 levels." U.S

. S ENTENCING G UIDELINES M ANUAL § 2F1.1(b)(3)(B) (1997).
-5- See U.S. S ENTENCING G UIDELINES M ANUAL § 2F1.1(a) & App. A (1997) . The District Court als o adopted the parties' stipulation that more than minimal planning wa s involved in the offense, resulting in an additional two-level enhancement. See id. § 2F1.1(b)( 2). Then, resolving a dispute between the parties, the District Court de termined

that the amount of loss caused by the defendant's bankruptcy fraud wa s $132,827, the amount of assets she had concealed in her first b ankruptcy petition. This amount-of-loss determination resulted in a seven-level enhancement. See id. § 2F1.1(b)(1)(H). These rulings have not been appealed.

The District Court made two other sentenc ing determinations that are at issue in this appeal. First, the District found Mohamed should receive a two-level enhancement pursuant to U.S.S.G. § 2F1 .1(b)(3)(B) for violating a judicial or administrative order. 4 Second, the court found that Mohamed should not receive a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1.

After making these findings, the District Court calculated the relevant offens e level to be 17: a base offense level of 6, plus seven levels for the amount of los s ($132,827), plus two levels becau se the offense involved more than minimal planning, plus two levels for violation of a judicial order. Mohamed's cri minal history putting her in Category I , the Guidelines sentencing range was 24 to 30 months. The Distric t Court sentenced her at the bottom of this range (24 months). The District Court also ordered that Mohamed pay restitution to Kevin Kerr in the amount of $132,827

. Mohamed then filed this appeal.-6- II.

On appeal, Mohamed first argues the District Court erred when it assessed a two -level sentence enhancement for violating the judicial process. Because thi s challe nge focuses on the application or construction of the Guidelines, we review the District Court's actions de novo. See United States v. Wells , 127 F.3d 739, 744 (8th Cir. 1997).

Mohamed's claim that she should not have received a two -level enhancement for violating a court order involves two arguments. First, Mohamed argues that the court orders she allegedly violated, the May 1995 and January 1996 orders, were not relevant to the bankruptcy fraud, the onl y count to which she pleaded guilty. Mohamed claims that those court orders instead were relevant only to Co unts II-XVIII of the indictment, counts to which Mohamed did not plead guilty, and should not be considered whe n determining an appropriate sentence for her con viction on Count I. Second, Mohamed argues that her statements that she denied the factual allegations in the PSR ha d sufficient specificit

y and clarity to trigger the District Court's obligation to either state itwould not rely on the disputed allegations or to hold an evidentiary hearing an d require the government to prove th e validity of those allegations. See United States v. Wajda , 1 F.3d 731, 732 (8th Cir. 1993) (requiring that, if the defendant objects to a factual allegation in the PSR with specificity and clarity, a district court must make a factual finding based on e vidence and cannot merely rely on the contested allegation);

see also United States v. Greene , 41 F.3d 383, 386 (8th Cir. 1994) (stating that, if a defendant objects to factual allegations in the PSR, the court "must either state that the challenged facts will not be taken intoaccount at sentencing, or it must make a finding on the disputed issue") (quoting United States v. Hammer , 3 F .3d 266, 272-73 (8th Cir. 1993), cert. denied , 510 U.S. 1139 (1994)). Mohamed ar gues that because the District Court did not hold an evidentiar y hearing on these factual allegations and did not state that those allegations would not be considered when determining the appropriat e sentence, her case must be remanded for resentencing.-7-

We need not address either of these claims, however, be cause as a matter of law the offense of concealing assets on a bankruptcy petition warrants, without more, a two-level enhancement p ursuant to U.S.S.G. § 2F1.1(b)(3)(B) for violation of judicial process. Guidelines § 2F1.1(a) establishes a s ingle base offense level for a wide range of fraud-related offenses. When a defendant conceals assets on a bankruptcy petition, thereby committing bankruptcy fraud, the defendant's "abu se of the bankruptcy process makes her more culpable, and thus distinct from, others who have committed offenses under § 2F1.1." United States v. Cheek , 69 F.3d 231, 233 (8th Cir. 1995). Because of the increased culpability when a defendant conceals assets from bankruptcy court officers and thus hinders the bankruptcy process, six other circuits agree with thi s Court's decision in United

States v. Lloyd , 947 F.2d 339, 340 (8th Cir. 1991), that the act of conce aling assets when filing a bankruptcy petition suffices to warrant a two

level sentencing enhancement under U.S.S.G. § 2F1.1(b)(3)(B). See United States v. Guthrie , 144 F.3d 1006, 10 10 (6th Cir. 1998); United States v. Saacks , 131 F.3d 540, 545-46 (5th Cir. 1997); United States v. Messner , 107 F.3d 1448, 1457 (10th Cir

. 1997); United States v. Welch , 103 F.3d 906, 908 (9th Cir. 1996); United States v

. Michalek , 54 F.3d 325, 332-33 (7th Cir. 1995); United States v. Bellew , 35 F.3d 518, 520 (11th Cir. 1994). But s ee United States v. Shadduck , 112 F.3d 523, 531 (1st Cir. 1997) (declining to determine if it will follow Lloyd and its progeny until the distric t court first rules on the issue); United States v. Carrozzella , 105 F.3d 796, 799-802 (2d Cir. 1997) (disagreeing with the holding in Lloyd ). Therefore, because Mohame d admits she concealed assets in her first bankruptcy petition, se e Sentencing Tr. at 8, the Distric t Court was correct in imposing a two-level enhancement on Mohamed' s sentence for violation of the judicial process.-8- III.

Mohamedalso argues that the District Court erred when it refused to give her a three-level sentencing reductio n for acceptance of responsibility. In order to receive a reduction for accepta

nce of responsibility, Mohamed had the burden of showing her acceptanceof responsibility for her offense. See United States v. Janis , 71 F.3d 308, 310 (8th Cir. 1995). A defendant is not entitled to a reduction merely because sh e pleaded guilty. See U.S. S ENTENCING G UIDELINES M ANUAL § 3E1.1, Ap plication Note 3 (1997); United States v. Byrd , 76 F.3d 194, 196 (8th Cir. 1996). Nor must a court reduce a defendant's sentence merely because the defendant simply recites "th e appropriate litany of remorse." United States v. Mabry , 3 F.3d 244, 250 (8th Cir

. 1993) (quot ing United States v. Speck , 992 F.2d 860, 862 (8th Cir. 1993)), cert

. denied , 511 U.S. 1020 (1994). Rather, whether a defendant has made the necessary affirmative showing that she has accepted responsibility for h er criminal acts "is largely

a fac tual question that turns on issues of credibility, and we therefore reverse such a decision only if it is clearly erroneous." United States v. Field , 110 F.3d 587, 591 (8th Cir. 1997). This Court affords great deference to the district cour t, which is in a unique positi onto evaluate whether or not the defendant has accepted responsibility for he r conduct. See id.

Mohamed claims she was entitled to a two-level reduc tion pursuant to U.S.S.G. § 3E1.1(a) for acceptance of responsibility because she "made a full discussion of the fact s," "fully acknowledged making knowing misstatements in that petition to [th e district ] court and to the probation officer," and "truthfully and forthrightly an d th oroughly acknowledged the conduct underlying the offense." Sentencing Tr. at 8

. Mo hamed

also argued that she was entitled to an additional third level of reductio n because her guilty plea allowed the government to avoid trial p reparation and permitted the court to allocate its resources efficiently. See U.S. S ENTENCING G UIDELINE S M ANUAL § 3E1.1(b) (1997).-9-

The District Court rejected Mohamed's arguments for a three-level sentencing reduction, citing the following reasons:

The court finds that defendant has not demonstrated the requisite
re gret for the crime committed. Defendant agreed to plead guilty t o Cou nt I of the indictment, bankruptcy fraud, that did not identify Kevi n Kerr as the victim of defendant's acts. In addition, sh e refused to have the $36,970 seized from her transferred directly to Mr. Kerr, and continues to insis t, as evidenced by the balance sheet and statements in th e prese ntence investigation, that she spent all of the insurance proceed s prior to the 8th Circuit decision finding Mr. Kerr to be the rightfu l beneficiary of the [life insurance ] policy. Under these circumstances, the court finds a reduction for acceptance of responsibil ity to be unwarranted. While the presentence investigation report indicates that defendant ha s stated that she regrets her conduct a nd is quite sorry for it, the court finds that this evidence of regret is outweigh ed by conduct inconsistent with an acceptance of responsibility.

Unite d States v. Mohamed , No. CR 97-157(1), at 3 (Dec. 22, 1997) (Court' s Application of Guidelines to Facts); see also Sentencing Tr. at 25-26.

On a ppeal, Mohamed argues this Court should reverse the District Court' s determination because the District Court denied the reduc tion "based on the allegations of wrongdoing with respect to the [life insurance] proceeds." Brief o f Appellant at 10. M o hamed argues these allegations "were, at most, part of the relevant conduct to the offense of conviction." Id. Mohamed also renews her argument that, because sh e objecte d to the factual allegations in the PSR concerning her alleged misuse of th e insur ance proceeds, the District Court could not rely on disputed allegations of suc h wrongdoing in determining her sentence. See id.

We find, however, that the District Court did not clearly err when it refused to reduce the level of Mohamed's offense for acceptance of re sponsibility. As the District-10-

Cou rt noted, Mohamed did not offer evidence that she has identified Kerr as th e "vi ctim" of her crimes, nor has she sought promptly to reveal additional assets or t o repay Ivan Kerr's esta

te after judgment was rendered against her more than four years ago. In these circumstances, we do not find the District Court clearly erred when i t suggested that Mohamed's admissions were merely an incantation of remorse, no t supported by her conduct, and thus concluded that she is undeserving of a reduction for acceptance of responsibility.

IV.
For the reasons stated above, the judgment of the District Court is affirmed.
A true copy.

Attest:

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