RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0252p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 09-1793
v.
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Defendant-Appellant. -
GLENN LEE BACON,
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Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 08-00239-001—Janet T. Neff, District Judge.
Argued: July 28, 2010
Decided and Filed: August 19, 2010
Before: GILMAN and COOK, Circuit Judges; and OLIVER, Chief District Judge.*
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COUNSEL
ARGUED: Jeffrey J. O’Hara, Grand Rapids, Michigan, for Appellant. Jennifer L.
McManus, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for
Appellee. ON BRIEF: Jeffrey J. O’Hara, Grand Rapids, Michigan, for Appellant.
Julie Ann Woods, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids,
Michigan, for Appellee.
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OPINION
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RONALD LEE GILMAN, Circuit Judge. Pursuant to a plea agreement, Glenn
Lee Bacon pled guilty to one count of bank fraud. The agreement provided that the
government would not oppose Bacon’s request for a reduction under the U.S. Sentencing
*
The Honorable Solomon Oliver, Jr., Chief United States District Judge for the Northern District
of Ohio, sitting by designation.
1
No. 09-1793 United States v. Bacon Page 2
Guidelines for his acceptance of responsibility, but the Presentence Report (PSR)
recommended only “reservedly” that Bacon receive this reduction. At Bacon’s
sentencing hearing, the district court denied Bacon the acceptance-of-responsibility
reduction, citing the PSR and a letter that Bacon had written after his guilty plea that
deflected responsibility for the crime. As a result, the district court placed Bacon in a
higher Guidelines range than Bacon had anticipated, and utilized that range to impose
a within-Guidelines sentence of 34 months’ imprisonment. Bacon now appeals. For the
reasons set forth below, we AFFIRM the judgment of the district court.
I. BACKGROUND
Bacon was charged in an information with one count of bank fraud, in violation
of 18 U.S.C. § 1344(2). Roughly six weeks later, Bacon reached a plea agreement with
the government. In essence, the agreement called for Bacon’s consent to waive being
indicted and to plead guilty to the bank-fraud charge in exchange for the government
agreeing not to oppose his request to reduce his offense level under the Guidelines based
upon the acceptance of responsibility. The government also agreed that, if Bacon
received the acceptance-of-responsibility reduction, it would move for an additional one-
level reduction because of Bacon’s timely notification to the government of his intent
to plead guilty. See U.S.S.G. § 3E1.1(b). Finally, the government agreed that it would
not charge Bacon with any additional crimes relating to the underlying bank fraud.
A month after their initial plea agreement, the parties filed an amended plea
agreement. The amended agreement reiterated the terms described above, but added a
requirement that Bacon cooperate with the government, and it discussed the possibility
of the government filing a motion to reduce his sentence under either § 5K1.1 of the
Guidelines or Rule 35(b) of the Federal Rules of Criminal Procedure, depending on his
level of cooperation. Bacon pled guilty to one count of bank fraud shortly after the
parties entered into the amended agreement.
Bacon’s sentencing hearing occurred seven months later. As the district court
explained at sentencing, Bacon’s crime consisted of “defraud[ing] a credit union by
No. 09-1793 United States v. Bacon Page 3
falsifying information about his income and employment on loan applications on which
the credit union relied in granting him loans.” Specifically, Bacon was involved in a
convoluted real-estate and mortgage-fraud scheme with at least two other
people—Ronald Tran, who served as the credit union’s manager, and David Walker,
another customer of the credit union—in which he fraudulently applied for multiple
loans with the credit union. Both Tran and Walker pled guilty to related crimes and were
sentenced prior to Bacon’s sentencing hearing.
When calculating Bacon’s Guidelines range at his sentencing hearing, the district
court initially stated that Bacon’s offense level under the Guidelines was 16. This was
“based on the Court’s acceptance of the defendant’s acceptance of responsibility
reduction of two points.” At this point, the court was relying on the PSR’s calculation
of Bacon’s offense level, which included both the two-level acceptance-of-responsibility
reduction and the one-level reduction for timely notification. This offense level, when
combined with Bacon’s criminal history category of II, equated to a Guidelines range
of 24 to 30 months’ imprisonment.
The district court then explained that “I have some reservations which I shared
with the probation officer about the issue of acceptance of responsibility in this case, and
I’m referring specifically to Paragraph 36 of the [PSR] in which Mr. Bacon submitted
a written statement . . . which in my view is considerably short of acceptance of
responsibility.” In this letter, which Bacon wrote and sent to the U.S. Probation Office,
he blamed the offense in large part on Tran. Bacon claimed that he had not known that
his actions—the submission of loan applications and a forged employment-verification
letter, all of which falsely stated that Bacon was employed and making a healthy
salary—were wrong at the time of the offense. The letter stated, in particular, that when
Bacon applied for the loans, he had “started work as the manager of a small store and
was promised a salary of $52,000.00 a year.” According to the PSR, this claim is
demonstrably false.
Because of its stated reservations, the district court ultimately rejected Bacon’s
request for an acceptance-of-responsibility reduction. The court found Bacon’s
No. 09-1793 United States v. Bacon Page 4
applicable offense level to be 18 without this reduction, and used this level to calculate
a Guidelines range of 30 to 37 months’ imprisonment.
After hearing arguments from both sides and considering Bacon’s allocution, the
district court discussed the sentencing factors contained within 18 U.S.C. § 3553(a). The
court noted that the bank fraud committed by Bacon had nearly ruined the credit union
from which he had acquired the loans, and that Tran and Walker had received sentences
of 46 and 12 months’ imprisonment, respectively. It also explained that, even if it had
granted Bacon’s acceptance-of-responsibility reduction, the court likely would have
varied upward in order to impose a sentence that reflected the seriousness of Bacon’s
offense. The court then sentenced Bacon to a term of 34 months’ imprisonment, in the
middle of its calculated Guidelines range.
Neither the parties nor the district court took into account that, under the
Guidelines, the court’s rejection of the acceptance-of-responsibility reduction also
prevented Bacon from receiving the one-level reduction for timely notification of his
willingness to plead guilty. See U.S.S.G. § 3E1.1(b). If the court had realized this and
correctly reworked its calculations, Bacon’s offense level would have been 19 instead
of 18, with a corresponding Guidelines range of 33 to 41 months of imprisonment.
Bacon now appeals, contending that the district court erred in denying his request
for an acceptance-of-responsibility reduction, and that his sentence is both procedurally
and substantively unreasonable. The government responds by arguing that the court
properly denied Bacon’s request for an acceptance-of-responsibility reduction, and that
his sentence is reasonable. Neither party has raised the argument that the district court’s
failure to eliminate the reduction for timely notification, and thus its failure to correctly
calculate Bacon’s actual Guidelines range, made Bacon’s sentence procedurally
unreasonable.
No. 09-1793 United States v. Bacon Page 5
II. ANALYSIS
A. Standard of review
We review the district court’s determination of whether to apply a Guidelines
reduction under the clear-error standard. See United States v. Paulette, 457 F.3d 601,
608 (6th Cir. 2006) (applying that standard in reviewing the district court’s denial of an
acceptance-of-responsibility reduction). In addition, we review a defendant’s sentence
for both procedural and substantive reasonableness. United States v. Thomas, 498 F.3d
336, 339 (6th Cir. 2007).
B. Procedural reasonableness
As the government explains in its brief, the district court erred in computing
Bacon’s Guidelines range. This occurred when the court denied Bacon’s two-level
acceptance-of-responsibility reduction, but failed to also rescind his one-level reduction
for timely notifying the government of his intent to plead guilty. In other words, the
reduction for timely notification depended on Bacon first receiving the acceptance-of-
responsibility reduction. See U.S.S.G. § 3E1.1(b). The court therefore wrongly
concluded that Bacon’s offense level was 18. It was in fact 19.
Generally, where the district court commits an error in computing the Guidelines’
recommended sentencing range, a defendant’s sentence will be held to be procedurally
unreasonable and a remand will be warranted. See Gall v. United States, 552 U.S. 38,
51 (2007) (holding that an appellate court “must . . . ensure that the district court
committed no significant procedural error” in sentencing a defendant); United States v.
Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005) (concluding that a remand for
resentencing was needed due to the improperly imposed Guidelines enhancement).
Because the district court in the present case erred in computing Bacon’s Guidelines
range, it committed a “significant procedural error.” See Gall, 552 U.S. at 51.
Remand is not necessarily required, however, because such errors may be
deemed harmless where we are “certain that . . . any such error ‘did not affect the district
court’s selection of the sentence imposed.’” Hazelwood, 398 F.3d at 801 (quoting
No. 09-1793 United States v. Bacon Page 6
Williams v. United States, 503 U.S. 193, 203 (1992)). We determine whether the error
is harmless by evaluating the extent of the error and considering whether the district
court “adequately explained” the sentence “by reference to the 18 U.S.C. § 3553(a)
factors.” United States v. O’Georgia, 569 F.3d 281, 296 (6th Cir. 2009).
As explained in Part II.D. below, the district court thoroughly addressed the
§ 3553(a) factors. Moreover, the error in the Guidelines calculation was marginal
because Bacon’s sentence is within the properly calculated Guidelines range as well as
within the erroneously calculated range. We therefore conclude that this error was
harmless. Both parties apparently agree. The government conceded at oral argument
that it wants to avoid the time and expense of another sentencing hearing, and Bacon did
not pursue this issue on appeal, perhaps not wishing to take the risk of being resentenced
at a higher offense level.
Bacon makes other arguments in support of his contention that his sentence was
procedurally unreasonable, but these are wholly without merit. One such argument is
that the district court’s reference to a hypothetical “24-to-40-month” Guidelines range
in its discussion of the § 3553(a) factors was a serious procedural error. Bacon fails to
acknowledge, however, that the court in that instance was not referring to the actual
Guidelines range, but rather to what the range would have been had it granted the
acceptance-of-responsibility reduction. The fact that the court misspoke by saying “40”
instead of “30” when discussing the high end of a hypothetical Guidelines range does
not make Bacon’s sentence procedurally unreasonable, particularly where the court had
accurately described that range earlier in the proceedings.
Bacon also claims that the district court failed to give him a proper opportunity
to respond to its concerns regarding the letter that he sent to the Probation Office. But
the record belies this argument. Bacon’s counsel asked for, and was granted, the
opportunity to respond to the court’s suggestion that Bacon had failed to accept
responsibility for his crime. The court then invited Bacon to speak on his own behalf,
noting that this was “one of the very important factors” that went into the court’s
sentencing decision. Bacon took that opportunity by speaking to the court for what
No. 09-1793 United States v. Bacon Page 7
appears from the transcript to be several minutes. When Bacon became emotional, the
court gave him the opportunity to take a break or speak while sitting down. Eventually,
Bacon told the court that “I’ve . . . I can’t talk. Thank you for the time, though.” The
record thus indicates that the court gave Bacon a reasonable opportunity to address the
court’s concerns about his failure to accept responsibility for his actions.
In addition, Bacon argues that the district court failed to explain its rejection of
his motion for a downward variance, which was based on his record of “volunteering and
helping others.” He correctly asserts that a sentence may be deemed procedurally
unreasonable if the court fails to explain why it rejected a nonfrivolous request for a
different sentence. See United States v. Peters, 512 F.3d 787, 789 (6th Cir. 2008) (citing
Rita v. United States, 551 U.S. 338, 357 (2007)).
Although the district court did not explicitly deny Bacon’s motion, it did address
his record of volunteering, noting that Bacon “self-reports lots of volunteer activities,
and he mentioned those [again] in his allocution here today.” The court explained that
it viewed these contentions skeptically, saying that “it’s all self-reported for the most
part without substantiation.” In this way, the court in fact addressed the grounds for
Bacon’s motion and stated why it was not inclined to grant the same. Given that
“[s]ometimes the circumstances will call for [only] a brief explanation” of why a district
court “has rejected [a defendant’s] arguments,” Rita, 551 U.S. at 357, the court’s rather
summary discussion of why it disfavored Bacon’s motion for a downward variance does
not make his sentence procedurally unreasonable.
C. The district court’s denial of Bacon’s acceptance-of-responsibility reduction
Bacon’s primary argument on appeal is that the district court erred in denying his
request for an acceptance-of-responsibility reduction under the Guidelines. In order to
merit this reduction, Bacon bore the burden of proving his acceptance of responsibility
by a preponderance of the evidence. See United States v. Roberts, 243 F.3d 235, 241
(6th Cir. 2001).
No. 09-1793 United States v. Bacon Page 8
According to the commentary to the applicable guideline, Bacon’s entitlement
to an acceptance-of-responsibility reduction depended on his “truthfully admitting the
conduct comprising the offense(s) of conviction, and truthfully admitting or not falsely
denying any additional relevant conduct for which [he] is accountable under § 1B1.3
(Relevant Conduct).” See U.S.S.G. § 3E1.1 cmt. n.1(a). This same commentary
explains that “a defendant who falsely denies, or frivolously contests, relevant conduct
that the court determines to be true has acted in a manner inconsistent with acceptance
of responsibility.” Id.
At his plea hearing, Bacon appeared to accept responsibility for the crime of bank
fraud. But in the months between his plea and the sentencing hearing, he drafted and
submitted a letter to the U.S. Probation Office that portrayed himself as a victim, not as
a person who recognized that he had committed a criminal act. The letter stated that,
after he had submitted various fraudulent loan applications, he “learned that the process
of which I was guided was improper.” This claim is disingenuous because Bacon had
previously admitted at his plea hearing that his loan applications contained information
that he knew was false when he submitted them. Bacon’s knowledge of the falsity, in
other words, was not acquired later; he knew it at the time.
His letter also claimed that he simply submitted a “blank loan application” that
he unwisely allowed Tran to fill in, and that he was betrayed by Tran. The letter
therefore never acknowledged that Bacon knowingly submitted false information to the
credit union. Even Bacon’s brief concedes that the letter “puts way too much emphasis
on Mr. Tran and too little emphasis on [Bacon’s] own criminal acts.”
Furthermore, Bacon continued to lie about certain details of his fraud in the
letter. The letter stated, for example, that when he applied for the loans at issue, he was
employed as the manager of a small store and had been promised a salary of $52,000.
But the PSR reports that Bacon never worked at this store and, at oral argument, Bacon’s
counsel admitted that the PSR was correct on this point. Moreover, the owner of the
store stated that the employment-verification letter that Bacon had submitted as part of
his loan application was a forgery. And the felony information to which Bacon pled
No. 09-1793 United States v. Bacon Page 9
guilty charged him with giving the credit union “a false employment verification
document,” i.e., the forged employment-verification letter. But in Bacon’s letter to the
Probation Office, he claimed that this suspect letter was “signed by the current owner
of the store.”
In addition, Bacon made equivocal statements at sentencing that further indicated
his failure to accept responsibility for his actions. He told the district court, for example,
that, “[a]s soon as I learned I had done something wrong, I absolutely took
responsibility.” But Bacon must have known that applying for loans using false
information was wrong when he did it. Bacon also attempted to minimize his
participation in the offense by telling the court that “[m]y role in this was simply using
my name, using my signature.” And Bacon made these statements after the district court
stated that it had reservations about the acceptance-of-responsibility reduction. Bacon
thus knew that the court was skeptical about his acceptance of responsibility, and he had
the opportunity to make clear that he was admitting his culpability. But he chose not to
take advantage of that opportunity.
Given this equivocation at sentencing and the statements in Bacon’s post-plea
letter that repeated falsehoods and blamed others for the fraud, the district court’s
rejection of Bacon’s request for an acceptance-of-responsibility reduction was not
clearly erroneous. See U.S.S.G. § 3E1.1 cmt. n.1(a) (explaining that “a defendant who
falsely denies, or frivolously contests, relevant conduct that the court determines to be
true has acted in a manner inconsistent with acceptance of responsibility”); see also
United States v. Wilson, 239 F. App’x 260, 267 (6th Cir. 2007) (upholding a district
court’s denial of a request for an acceptance-of-responsibility reduction because of the
defendant’s “evasive” and “illogical” description of his criminal activity).
D. Substantive reasonableness
Bacon’s final claim is that his sentence is substantively unreasonable. The
district court calculated the applicable Guidelines range as 30 to 37 months (without the
acceptance-of-responsibility reduction) and imposed a sentence of 34 months’
imprisonment. But the actual Guidelines range was 33 to 41 months’ imprisonment
No. 09-1793 United States v. Bacon Page 10
without the reductions for both acceptance of responsibility and timely notification.
Despite the district court’s error, Bacon’s 34-month sentence is still within the proper
Guidelines range. Where such is the case, the sentence is viewed as presumptively
reasonable on appeal. See United States v. Vonner, 516 F.3d 382, 389-90 (6th Cir. 2008)
(holding that a defendant had not rebutted the presumption that his within-Guidelines
sentence was reasonable); see also United States v. Bolds, 511 F.3d 568, 581 (6th Cir.
2007) (acknowledging that a within-Guidelines sentence is presumed to be reasonable
on appeal, and noting that the substantive reasonableness of a sentence is evaluated
under the abuse-of-discretion standard).
Bacon seeks to rebut this presumption by arguing that his sentence is
substantively unreasonable because there is a disparity between the sentence he received
and the sentences given to his two codefendants, Tran and Walker, who both pled guilty
and were sentenced before Bacon. As shown below, however, this argument is
contradicted by Bacon’s own brief and is not supported by controlling law.
Bacon admits that “Mr. Tran [the manager of the credit union] was the most
culpable of the three,” while “Mr. Walker was the least culpable . . . and [Bacon] was
in the middle.” He was sentenced accordingly, with Tran receiving a 46-month
sentence, Walker a 12-month sentence, and Bacon a 34-month sentence. Bacon argues,
however, that his sentence was too close to Tran’s, whereas he contends that it should
have been closer to Walker’s. But this argument hardly demonstrates an abuse of
discretion. Furthermore, “the need to avoid unwarranted sentence disparities” mentioned
in 18 U.S.C. § 3553(a)(6) refers to “national disparities among the many defendants with
similar criminal backgrounds convicted of similar criminal conduct,” not to “disparities
between one individual’s sentence and another individual’s sentence, despite the fact that
the two are co-defendants.” United States v. Simmons, 501 F.3d 620, 623 (6th Cir.
2007). Yet Bacon’s disparity argument is based precisely on this latter comparison.
Bacon’s argument also ignores the district court’s thorough consideration of the
various § 3553(a) factors. The court first discussed “the nature and circumstances of the
offense,” see 18 U.S.C. § 3553(a)(1), including the amount of money that Bacon never
No. 09-1793 United States v. Bacon Page 11
repaid the credit union, the type of loan transactions, and the long duration of his fraud.
Next, the court reviewed Bacon’s “history and characteristics,” see id., including his age,
educational background, employment record, and mental health. The court then
addressed the issues of “just punishment” and “promot[ing] respect for the law.” See id.
§ 3553(a)(2)(A).
These issues were viewed by the district court as particularly important in
Bacon’s case because, where a person “engage[s] in a series of transactions which you
almost certainly have to know were not legitimate, there has to be a recognition that
punishment must follow.” The court also compared the fraud to a robbery, explaining
that, “even when you don’t use a gun to hold up a credit union, but you do it from the
inside with phony information and phony loans, that kind of theft, which is really what
it is at the bottom of it all, suggests a lack of respect for the law.”
Moving on to other factors, the district court stated its belief that the issues of
deterrence and protection of the public from further crimes by Bacon were not
“particularly pertinent in this case.” The court related that it also did not view Bacon’s
need for “rehabilitation via medical, educational, and correctional treatment” to be as
important as the need for “punishment and promotion of respect for the law.”
Considering the need to avoid “unwarranted [sentencing] disparities,” the court also
discussed the sentences and restitution orders imposed on Tran and Walker.
The district court then noted its belief that the advisory Guidelines range
“properly reflect[s] the statutory factors” in Bacon’s case, explaining that it did not
“think there’s anything extraordinary about this case that would place it outside the
heartland, and the [G]uidelines as I scored them.” It reasoned that, even if the applicable
Guidelines range was “as scored by the probation officer” (meaning with the acceptance-
of-responsibility reduction and thus lower), the court “would vary upward from that
because I don’t think that is adequate to meet the requirements of the statute given . . .
the seriousness of the offense and the need for punishment.” The court then sentenced
Bacon to a term of 34 months’ imprisonment.
No. 09-1793 United States v. Bacon Page 12
In sum, the district court considered all of the applicable sentencing factors and
reached a sentence within what it believed (and, ultimately, what is) the applicable
Guidelines range. Bacon has thus failed to rebut the presumption that the court’s
decision was substantively reasonable. See Vonner, 516 F.3d at 389-90; see also United
States v. Tristan-Madrigal, 601 F.3d 629, 636 (6th Cir. 2010) (holding that a district
court’s sentence was substantively reasonable where it “extensively” explained its
reasoning and “analyzed each of the § 3553(a) factors in determining what constituted
an appropriate sentence”).
Furthermore, the district court’s discussion of why the § 3553(a) factors called
for a sentence of 34 months’ imprisonment constituted a sufficient explanation of the
sentencing decision to excuse its slight miscalculation of the Guidelines range, see
United States v. O’Georgia, 569 F.3d 281, 296 (6th Cir. 2009) (noting that a
miscalculation of the Guidelines range may be excused where the district court
adequately addressed the § 3553(a) factors), particularly given that the 34-month
sentence was within the properly calculated Guidelines range and that neither party has
complained about this miscalculation. See Part II.B. above.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district
court.