F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 15 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-6008
(D.C. No. CR-96-53-R)
ANA NAIDA ALVAREZ, a/k/a Mary (W.D. Okla.)
Rodriguez,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BRORBY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is
ordered submitted without oral argument.
Ana Alvarez appeals her sentence of thirty-seven months’ imprisonment
which was imposed after she pleaded guilty to two counts of submitting false
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
claims for income tax refunds, in violation of 18 U.S.C. §§ 287 and 2(b). She
contends the district court erred in refusing to grant downward departure for
acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. We exercise
jurisdiction under 28 U.S.C. § 1291 and affirm.
Parsons Technology, a computer software company that distributed
software enabling individuals to file income tax returns electronically, contacted
Internal Revenue Service in April 1993 after it received numerous diskettes for
electronic filings containing similar wage and earnings information for different
people with common addresses. IRS agents began surveillance of a mailbox drop
location in Oklahoma City and, on April 13, 1993, observed Alvarez and her
mother pick up mail, which included IRS tax refund checks, from the box. IRS
agents subsequently observed Alvarez and her mother pick up mail from nine
other post office boxes and mail drop locations in the Oklahoma City area. When
Alvarez was detained and questioned, she gave IRS agents a false name, social
security number, and address, as well as a false explanation for her activities. 1
Alvarez did not appear the following day to meet with agents as she had agreed
and she fled the State of Oklahoma.
Alvarez and her mother were apprehended in New Mexico in the summer of
1
If Alvarez had given her correct name and social security number, the
agents would have determined there was an outstanding warrant for her arrest
from the State of Texas.
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1993 when they attempted to cash a tax refund check. Alvarez was transported to
Harris County, Texas, to begin serving a suspended criminal sentence, but was
mistakenly released from custody. On July 24, 1994, IRS agents attempted to
arrest Alvarez at a post office drop in Van Nuys, California, but she evaded arrest
by speeding away in her car.
Alvarez was finally arrested in Portland, Oregon, in August 1997. She had
been living in Portland under an assumed name and teaching in the public
schools. She again identified herself by a fictitious name when she was arrested
and she produced a fake identification card. She was taken into custody and
ultimately returned to the State of Oklahoma to face charges. Alvarez pleaded
guilty to two of eighteen counts and was sentenced to thirty-seven months’
imprisonment and three-years’ supervised release.
Alvarez contends the district court erred in refusing to grant her a
downward adjustment for acceptance of responsibility pursuant to U.S.S.G. §
3E1.1. 2 At her sentencing, Alvarez argued her conduct upon returning to
Oklahoma after her arrest, i.e., “her debriefing, her agreement to enter a plea
agreement, [and] her agreement to testify against her mother,” demonstrated her
acceptance of responsibility. Sentencing Transcript at 74. The district court
2
Section 3E1.1 provides, in pertinent part: “If the defendant clearly
demonstrates acceptance of responsibility for his offense, decrease the offense
level by 2 levels.”
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rejected her arguments:
Well, I just find it very inappropriate to give a defendant acceptance
of responsibility when they spent some significant time as a fugitive
and knowing that they were being pursued and lying about who she
was, it did impede the investigation, I previously found, and I
certainly do give her some credit, and I will, for her plea of guilty
and her cooperation after her arrest, but it just strikes me that it
would be inappropriate under that guideline to give her full
acceptance of responsibility, so I am going to deny that.
Id.
Acceptance of responsibility is a factual question which we review for clear
error. See United States v. Hawley , 93 F.3d 682, 689 (10th Cir. 1996). “The
sentencing judge is in a unique position to evaluate a defendant’s acceptance of
responsibility. For this reason, the determination of the sentencing judge is
entitled to great deference on review.” U.S.S.G. § 3E1.1, application note 5. It is
defendant’s burden to prove she has accepted responsibility. See United States v.
Spedalieri , 910 F.2d 707, 712 (10th Cir. 1990). Application Note 3 speaks
directly to Alvarez’ arguments:
Entry of a plea of guilty prior to the commencement of trial
combined with truthfully admitting the conduct comprising the
offense of conviction, and truthfully admitting or not falsely denying
any additional relevant conduct for which he is accountable under §
1B1.3 (Relevant Conduct) . . ., will constitute significant evidence of
acceptance of responsibility for the purposes of subsection (a).
However, this evidence may be outweighed by conduct of the
defendant that is inconsistent with such acceptance of responsibility.
A defendant who enters a guilty plea is not entitled to an adjustment
under this section as a matter of right.
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U.S.S.G. § 3E1.1(a), application note 3.
We have reviewed the record on appeal and we are not persuaded that the
district court committed clear error in refusing a downward adjustment for
acceptance of responsibility. It is true that Alvarez pleaded guilty and truthfully
admitted her conduct. However, it is likewise uncontroverted that Alvarez
intentionally lied to investigating IRS agents, successfully evaded arrest for a
period of approximately four years, and continued her criminal conduct during
most of that time period. See U.S.S.G. § 3E1.1(a), application note 1 (appropriate
factors for consideration include whether defendant voluntarily terminated
criminal conduct and surrendered to authorities promptly after commission of the
offense, and the timeliness of conduct in manifesting the acceptance of
responsibility). Considered together, we agree with the district court that Alvarez
failed to clearly demonstrate acceptance of responsibility for her conduct.
AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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