United States v. Carrington

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-2211

UNITED STATES,

Appellee,

v.

KERR CARRINGTON,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Torruella, Chief Judge,

Cyr and Lynch, Circuit Judges.

LisaAyn Padilla, by appointment of the Court, for appellant.

Donald L. Cabell, Assistant United States Attorney, with

whom Donald K. Stern, United States Attorney, and Dina Michael

Chaitowitz, Assistant United States Attorney, were on brief for

appellee.

September 18, 1996

TORRUELLA, Chief Judge. On March 28, 1995, Defendant
TORRUELLA, Chief Judge.

Kerr Carrington ("Carrington") pleaded guilty to four counts of

interstate transportation of property taken by fraud (Counts I

through IV), see 18 U.S.C. 2314, and two counts of wire fraud

(counts V and VI), see 18 U.S.C. 1343. On August 21, 1995,

Carrington was sentenced to a term of 50 months incarceration,

followed by a 36 month period of supervised release, and a

mandatory special assessment of $50. He contests the validity of

his plea based on Federal Rule of Criminal Procedure 11(f) and

also appeals his sentence on several grounds. We affirm both his

conviction and his sentence.

I. BACKGROUND
I. BACKGROUND

The case arises from two separate sets of schemes to

defraud. In the first set, charged in Counts I through IV and

spanning from December 1993 to April 1994, Carrington negotiated

the purchase of four expensive cars from out-of-state dealers.

He then tricked the dealers into believing that they had received

wire transfers in payment for the cars. All four cars were then

shipped to Carrington in Massachusetts. Carrington was arrested

on May 3, 1994, and released on conditions pending further

proceedings in the district court. On or about July 8, 1994,

Carrington and the government entered into a plea agreement

pursuant to which he agreed to plead guilty to all four counts of

the information, which was filed on July 19, 1994. Carrington

did not immediately waive indictment and plead to the

information. Instead, upon Carrington's motion, the Probation

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Office began working on the Presentence Report ("PSR") with the

intention of having Carrington plead and be sentenced upon its

completion.

In the second set, charged in Counts V and VI, which he

executed while on release in connection with Counts I through IV,

Carrington sought to obtain and deposit bank drafts drawn against

the corporate bank accounts of various companies. The conduct

charged as Count V took place in November 1994. On or about

November 14, 1994, while the parties were awaiting the

preparation of the PSR, Carrington, identifying himself as Chad

Littles ("Littles"), the Accounts Receivable/Payroll Manager of

Quorum International, Ltd. ("Quorum"), opened an account with

International Banking Technology, Inc. ("IBT"), of Springfield,

Virginia. IBT provides a bank drafting system that allows

creditors to collect payment over the phone by having the debtor

pre-authorize a one-time debit to his or her account. When IBT

is provided with the debtor information by its client, it

prepares bank drafts (or permits the client to produce the bank

drafts by means of its software) that are deposited by IBT's

client into its bank account. When these drafts are processed,

the debtor's account is debited and the creditor receives

payment. On or about November 16, 1994, Carrington faxed thirty

completed Bank Draft Sales Forms ("draft forms") to IBT. These

draft forms are used to provide IBT with the information

necessary for it to produce the bank drafts for the one-time pre-

authorized debits. The draft forms that Carrington faxed to IBT

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provided all of the necessary information including the name of

the company to charge, its checking account number, and the

amount of the draft requested to cover the purported pre-

authorized one-time debit. Carrington requested that IBT prepare

30 bank drafts of $5,000 each for a total of $150,000, which

purportedly was to constitute payment for attendance at a seminar

allegedly held by Quorum. Carrington's attempt failed, however,

when as part of IBT's fraud control system, it attempted to

verify the authorization for some of the bank drafts, and it

found that some of the phone numbers were incorrect. Because IBT

suspected fraud, it never completed processing Carrington's

request, and Carrington failed to obtain the funds he sought.

The conduct charged in Count VI took place in December

1994. On or about December 5, 1994, Carrington, identifying

himself as Paul Epstein ("Epstein"), Chief Financial Officer of

Citibank, phoned IBT, faxed them an application for bank draft

forms, and requested IBT software that would permit him to

transmit his requests for bank drafts to IBT by modem. This

software also allowed Carrington to receive from IBT, by modem,

the instructions necessary to print the bank drafts at his home.

On December 29, 1994, Carrington sent to IBT by modem 80 forms

for printing bank drafts at his residence, which were to be used

to debit 80 different companies' accounts in varied amounts

totalling $583,443.50. He failed to obtain the total amount

sought, receiving and depositing $268,000 into a personal account

before the U.S. Secret Service discovered his actions.

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Based on the events of November and December 1994, the

government filed a superseding information adding two counts of

wire fraud, Counts V and VI, to the previous Counts I through IV.

Pursuant to a second plea agreement, Carrington waived indictment

and pled guilty to all six counts of the superseding information

on March 28, 1995. He was sentenced on August 21, 1995.

II. DISCUSSION
II. DISCUSSION

A. Carrington's Rule 11 argument
A. Carrington's Rule 11 argument

In his brief, without having so argued below,

Carrington contends that the district court erred under Federal

Rule of Criminal Procedure 11(f) by calculating his sentence in

part on a plea for which there was no factual basis.1

Specifically, he argues that even viewed in the light most

favorable to the government, there was no proof that the vehicles

involved in the information Counts I through IV were stolen prior

to their placement into the stream of interstate commerce, which

he alleges is an essential element under the Act.

Because Carrington seeks to withdraw his plea following

the imposition of his sentence, he must show that the plea

proceedings were marred by "a fundamental defect which inherently

results in a complete miscarriage of justice or an omission

1 Fed. R. Crim. P. 11(f) ("Determining accuracy of plea")
provides that:

Notwithstanding the acceptance of a plea
of guilty, the court should not enter a
judgment upon such plea without making
such inquiry as shall satisfy it that
there is a factual basis for the plea.

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inconsistent with the rudimentary demands of fair procedure."2

United States v. Ferguson, 60 F.3d 1, 2 (1st Cir. 1995) (internal

quotations omitted); see Fed. R. Crim. P. 32(e); see also former

Fed. R. Crim. P. 32(d), comment. (advisory committee's note to

1983 amendments to predecessor of Rule 32(e)); United States v.

Japa, 994 F.2d 899, 902 (1st Cir. 1993) (stating that, to set

aside a plea post-sentencing, the reviewing court must find "a

fundamental defect or a miscarriage of justice").

Carrington's appeal does not meet this high standard.

Carrington's sole argument under Rule 11(f) is that there was no

evidence that the vehicles involved in Counts I through IV were

stolen before they were placed into the stream of commerce. We

reject Carrington's challenge for two reasons, either of which

would suffice independently to justify our conclusion. First, we

have previously rejected a similar argument under 18 U.S.C.

2314, Carrington's statute of conviction. See United States v.

Puerta, 38 F.3d 34, 41 (1st Cir. 1994). Much as Carrington does

here, the defendant in Puerta argued that "'no [property] had

been stolen or taken by fraud at the time of transfer.'" Id.

(quoting brief of defendant). Paraphrasing that argument as a

2 We recognize that the burden a defendant bears on a post-
sentencing appeal from a guilty plea in this Circuit is "somewhat
cloudy," United States v. Mart nez-Mart nez, 69 F.3d 1215, 1219

(1st Cir. 1995), cert. denied, U.S. , 116 S. Ct. 1343

(1996), as previous cases have held direct appellants only to a
harmless error standard. Id.; see, e.g., United States v. Parra-

Iba ez, 936 F.2d 588, 598 & n.24 (1st Cir. 1991). We note,

however, that although we follow the more stringent standard set
out in Ferguson and Japa, even were we to apply harmless error

review, Carrington's argument would fail.

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claim "that when transferred the [property] had not yet been

stolen," id. (emphasis in original), we concluded that we could

"see no reason why the fraudulent taking required any more than"

acceptance of the property, misrepresentations, access to the

property, and "the requisite scienter." Id. Similarly, given

that Carrington does not argue that there was no factual basis to

find that he accepted the vehicles, made misrepresentations, had

access to the vehicles, and had the requisite intent -- "knowing

the [vehicles] to have been stolen, converted or taken by fraud,"

18 U.S.C. 2314 (emphasis added) -- his argument that there was

no factual basis to find the vehicles stolen before transport

must fail, because it is simply irrelevant.

Second, Carrington pled guilty to four counts of

transporting or causing to be transported vehicles which he knew

to be "stolen, converted and taken by fraud." However, the

statute itself is phrased in the disjunctive, punishing the

transport of goods known to be "stolen, converted or taken by

fraud," see 18 U.S.C. 2314, as Carrington himself quotes in his

brief. Carrington argues that there is no factual basis for the

conclusion that the goods were stolen when transported, but makes

no reference to conversion or fraudulent takings. But even if he

were correct with respect to the "stolen" prong of the statute,

he would still need to persuade us with respect to both of the

other two prongs. However, Carrington does not contend that a

factual basis is absent to support the proposition that he caused

the goods to be transported and that he took them by fraud -- an

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alternative basis for criminal liability under section 2314, and

a basis included in the information to which he pled guilty.

Even if Carrington were to so argue, it would not profit him,

since the presentence report established a more than adequate

basis for the plea under the "taken by fraud" theory. See United

States v. Ferguson, 60 F.3d 1, 4 (1st Cir. 1995) (recognizing PSR

as adequate factual basis for plea when considering propriety of

plea withdrawal). As a result, we conclude that no defect or

miscarriage of justice exists to require that we reverse the

district court's sentencing decision or vacate Carrington's plea

due to an inadequate factual basis for the plea pursuant to Fed.

R. Crim. P. 11(f).

Besides the argument with respect to his plea,

Carrington also raised an ineffective assistance of counsel

challenge for the first time at oral argument. Ordinarily, we do

not address ineffective assistance of counsel arguments on direct

appeal. See United States v. Mala, 7 F.3d 1058, 1063 (1st Cir.

1993) (holding that absent extraordinary circumstances, fact-

specific claims asserting ineffective assistance of counsel are

not cognizable on direct appeal), cert. denied, 114 S. Ct. 1839

(1994). This case is no exception. Carrington argues that his

trial counsel improperly led him to plead guilty. However, these

charges depend on evidentiary matters which are best considered

by the district court in the first instance. Id. at 1063.

Accordingly, Carrington's claim of inadequate assistance is not

properly before us, and so we do not consider it.

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B. The value and loss determinations in Counts I through IV
B. The value and loss determinations in Counts I through IV

Carrington disputes the values assigned by the PSR --

that is, the values represented by the prices he promised to pay

the dealers he contacted -- and adopted by the district court in

sentencing, to the four cars that were the subjects of Counts I

through IV, respectively. He contends that the district court

should instead have valued the car in Count I at $30,000 -- the

amount of money he obtained in the sale of the car -- and for

Counts II through IV the court should have used the fair

wholesale value of the vehicles. Carrington points out that the

only reference to valuation in the record, apart from references

to "an agreed upon price," is in the FBI agent's affidavit of the

car dealer's statements. He adds that the only information on

personal knowledge as to the value of any car was the $30,000

willingly paid by a car dealer for the car in Count I.

Carrington notes that while the Guidelines use "fair market

value" as the measure of the value of stolen property, that rule

is not absolute, and in fact, if market value is difficult to

ascertain or inadequate to measure the harm to the victim,

alternative methods of valuation may be used. U.S.S.G. 2B1.1,

n.2.

This court reviews de novo the district court's

interpretation of the loss provisions of the Guidelines.

Thereafter, it normally reviews a district court's factual

findings only for clear error. See, e.g., United States v. Koon,

U.S. , 116 S. Ct. 2035 (1996); United States v. Skrodzki, 9

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F.3d 198, 202 (1st Cir. 1993). But where, as here, a defendant

fails to object to the court's loss computation -- as Carrington

concedes in his brief -- review is for plain error.

Carrington's essential contention, without record

support, is that the prices he negotiated in relation to the

vehicles involved in Counts II through IV were overstated in

order to induce the dealers' agreement. But in fact, the PSR

suggests that Carrington negotiated the price of each vehicle in

an arm's length transaction. Under section 2B1.1, comment.

(n.2), a product's fair market value is ordinarily the

appropriate value of the victim's loss. Here, it was reasonable,

particularly in light of the bargaining between Carrington and

the dealers, for the district court to calculate the market value

of each vehicle to be the price Carrington negotiated with each

dealership. See, e.g., United States v. Warshawsky, 20 F.3d 204,

213 (6th Cir. 1994) (applying market value in a section 2314 case

to mean the price a willing buyer would pay a willing seller at

the time and place the property was taken). Loss need not be

determined with precision, and in fact may be inferred from any

reasonably reliable information. See, e.g., Skrodzki, 9 F.3d at

203. Furthermore, it was reasonable for the court to adopt the

retail rather than the wholesale values of the cars, since all of

the dealerships from whom Carrington obtained the cars were

engaged in retail sales of automobiles. As a result, we conclude

that the district court did not commit plain error in determining

the market value of the vehicles in Counts I through IV.

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C. Carrington's argument that Counts V and VI
C. Carrington's argument that Counts V and VI
should have been sentenced as attempts
should have been sentenced as attempts

Carrington contends that the sentencing court erred in

concluding that Counts V and VI were both completed crimes, with

a total intended loss of $583,000. He argues that the lack of

actual loss counsels for the proposition that Counts V and VI

should be classed as mere attempts, pursuant to the Guidelines.

See U.S.S.G. 2X1.1(b)(1) (mandating a decrease by 3 levels for

an attempt). Thus, he posits, the offense levels for those

counts should be lower than those the district court attributed

to them. We review the district court's legal ruling concerning

the scope of section 2X1.1 de novo, but uphold the application of

section 2X1.1 to the facts of Carrington's offense conduct so

long as it is not clearly erroneous. United States v.

Chapdelaine, 989 F.2d 28, 34 (1st Cir. 1993) (discussing clear

error with respect to section 2X1.1), cert. denied, 114 S. Ct.

696 (1994).

In making this argument, Carrington confronts our

opinion in United States v. Egemonye, 62 F.3d 425 (1st Cir.

1995). In that case, the district court calculated loss pursuant

to section 2F1.1 based on the total aggregate limits of the

credit cards that the defendant wrongfully obtained. Id. at 429.

The defendant argued that because section 2F1.1 references

section 2X1.1 regarding "partially completed offense[s]," and

because he had actually inflicted a loss of only about 53 percent

of the aggregate credit limit before his scheme was interrupted

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by arrest, the district court erred in denying him the lower

offenselevel attendant to anonly "partially completed"crime. Id.

We rejected the application of section 2X1.1 to the

defendant's conduct in Egemonye. Id. at 430. We noted that

there were two competing views of section 2X1.1. It could be

viewed as offering a reduction for potential versus completed

harm; alternatively, its provisions could be read literally to

direct its application only where the defendant has not completed

the actions necessary to the substantive offense. Id. In siding

with the latter view, we stated that

[t]here would be nothing irrational in
deciding that actual harm is worse than
intended harm and providing a three-level
discount wherever the sentence for a
completed offense is measured in part by
intended harm. But this is not in
general the philosophy of the guidelines;
if it were, possession of drugs with
intent to distribute would be punished
less harshly than the actual sale of an
equivalent amount. . . .
[T]he cross-references in section 2F1.1
are easily explained; they do invoke the
discount, or the possibility of a
discount, where the underlying crime is
merely an attempt or conspiracy. . . .
Here, by contrast, all 51 of the cards
were the subject of completed crimes.

Id.; see, e.g., United States v. Sung, 51 F.3d 92, 95 (7th Cir.

1995) (applying the same view of section 2X1.1 to sentencing of a

defendant who was arrested in the midst of a scheme to traffick

counterfeit hair care products).

To be sure, Carrington tries to distinguish Egemonye

from his case. In his brief, Carrington contends that the

defendant in Egemonye had the credit cards and the present

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ability to turn the cards into cash, while, with respect to Count

V, Carrington would still have had to actively negotiate the

drafts even had he received them from IBT. He asserts that he

never came close to being in a position to negotiate the drafts.

However, Carrington does not dispute that IBT's own fraud control

unit prevented him from receiving those drafts. Furthermore,

Carrington also does not dispute that he did in fact transmit a

wire communication pursuant to a scheme to defraud. As a result,

Carrington had completed the necessary elements of the charged

offense, wire fraud, just as the defendant in Egemonye had.

Thus, we conclude that Egemonye is squarely on point.

In light of Egemonye, section 2X1.1 is simply not

applicable as Carrington contends. Carrington was convicted

under Counts V and VI of wire fraud, not attempted wire fraud or

wire fraud conspiracy. The crime of wire fraud does not require

that the defendant's object be attained. It only requires that

the defendant devise a scheme to defraud and then transmit a wire

communication for the purposes of executing the scheme. See 18

U.S.C. 1343. Here, Carrington completed the necessary acts for

the crime of wire fraud in Count V when he faxed thirty bank

draft sales form requests to IBT in furtherance of his scheme to

obtain $150,000, and in Count VI when he sent by modem eighty

transaction requests to IBT in furtherance of his scheme to

obtain $583,443.50. Because section 2X1.1 does not apply to

completed substantive offenses, Egemonye, 62 F.2d at 430, we

conclude that the district court correctly denied a reduction in

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offense level pursuant to section 2X1.1. As a result, we find no

error of law or application that justifies such a reduction.

D. Carrington's argument that the district court double counted
D. Carrington's argument that the district court double counted
loss in sentencing him pursuant to Counts V and VI
loss in sentencing him pursuant to Counts V and VI

Carrington maintains that the district court erred in

its loss calculation in sentencing him for the offenses charged

in Counts V and VI. Specifically, he contends that part of the

loss that the district court attributed to Count VI was an

effective double counting of loss in Count V, since the offense

in Count VI was an effort, in part, to make up for the lack of

success of the conduct in Count V. Citing to Guidelines sections

2F1.1 and 2B1.1, Carrington maintains that the district court

should not have found that Counts V and VI were two individual

offenses. See U.S.S.G. 2F1.1 ("Fraud and Deceit; Forgery . . .

"), comment. (n.7) (directing that "[v]aluation of loss is

discussed in the Commentary to 2B1.1") and 2B1.1 ("Theft,

Embezzlement . . . "), comment. (n.2) (stating that "[i]n certain

cases, an offense may involve a series of transactions without a

corresponding increase in loss"). Instead, argues Carrington,

these Counts were in fact merely parts of a larger scheme,

deserving of an accordant reduction in offense level.

Had Carrington raised this argument below, the district

court's determination that Counts V and VI were separate offenses

would be reviewed for clear error. See, e.g., United States v.

Prendergast, 979 F.2d 1289, 1291-92 (8th Cir. 1992) (discussing

loss calculation under U.S.S.G. 2B1.1 and 2F1.1 and stating,

with respect to uncharged conduct, that the district court's

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determination of a common scheme or plan "is a factual

determination subject to review under the clearly erroneous

standard"); cf. United States v. Mak, 926 F.2d 112, 115 (1st Cir.

1991) (reviewing district court's determination of a "common

scheme or plan" of drug offenses for clear error). However,

because Carrington failed to raise this issue below, we review it

only for plain error. See United States v. Black, 78 F.3d 1, 5

(1st Cir. 1996); United States v. Atwood, 963 F.2d 476, 477 n.2

(1st Cir. 1992). While Carrington argues that this issue was

preserved, pointing in his reply brief to a section of the

transcript of the proceedings that shows that Counts V and VI

were argued simultaneously by counsel, we reject that contention.

The transcript in fact shows that Counts V and VI were argued

simultaneously with respect to Carrington's section 2X1.1 attempt

argument; there was no oral argument with respect to sections

2F1.1 and 2B1.1, or whether Counts V and VI formed part of a

common scheme or plan.

We fail to find plain error for two reasons. First, we

think Carrington's reliance on commentary to section 2B1.1 is

misplaced. Carrington essentially contends that because, of the

80 victims of the fraud underlying Count VI, thirty were among

the victims in Count V, and because he was seeking to get the

same $150,000 from these thirty victims, the district court

therefore improperly double counted this amount in calculating

the loss from Count VI as $583,443.50. Carrington emphasizes

Application Note 2 to section 2B1.1, which specifies that "[i]n

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certain cases, an offense may involve a series of transactions

without a corresponding increase in loss." U.S.S.G. 2B1.1,

comment. (n.2). However, as the Government points out, the very

next sentence in Note Two uses as an example the case where "a

defendant [] embezzle[s] $5,000 from a bank and conceal[s] his

embezzlement by shifting this amount from one account to another

in a series of nine transactions over a six-month period." Id.

The loss would remain at $5,000 because the subsequent

transactions did not increase the risk of actual or intended

loss. By contrast, there is no dispute that Carrington's actions

in Count VI increased the risk of potential loss to the 30

overlapping victims. Indeed, Carrington's own counsel argued at

sentencing that "[t]here was no follow-up [to the fraud in Count

V], no pursuit of it, it was abandoned and then a second,

separate fraud was commenced."

Second, even if the loss on Count VI were reduced by

$150,000, as Carrington seeks, the aggregate total loss for

Counts I through VI would be approximately $789,000 which, under

the Guidelines, would require a ten-level rather than eleven-

level increase to the offense, resulting in a final adjusted

offense level of 21 rather than 22. See U.S.S.G. 2F1.1(b)(1).

Because Carrington falls within Criminal History Category I, his

sentencing range under the Guidelines would be 41-51 months.

Because his current sentence falls within this range, any error

could not be found to affect his "substantial rights," and thus

could not amount to plain error.

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E. Carrington's requested "acceptance of responsibility" credit
E. Carrington's requested "acceptance of responsibility" credit

Carrington also claims that the district court erred in

denying his request for a three-level reduction for acceptance of

responsibility pursuant to U.S.S.G. 3E1.1. As a threshold

matter, we must confront the question of what standard of review

applies. Carrington argues that the district court made an

interpretive mistake regarding the meaning and scope of its

factfinding; because this purported mistake is inextricably

intertwined with its factfinding, he contends that de novo review

is warranted. Carrington points out that the government

recommended a three-level reduction for timely acceptance of

responsibility, but that the district court adopted the probation

office recommendation that no sentencing consideration be given.

Carrington argues in his brief that the district court committed

an error of interpretation and related factfinding, since "[n]o

fact of any significance is referred to by [the] probation

[office] other than the subsequent offense" committed while he

was on pretrial release.

While Carrington claims that his argument implicates a

mixed error that requires de novo review for his entire argument,

we disagree. The propriety of the district court's use of

criminal conduct during pretrial release to justify denial of

acceptance of responsibility credit -- as a matter of guideline

interpretation -- is subject to de novo review. United States v.

Talladino, 38 F.3d 1255, 1263 (1st Cir. 1994). However, the

application of this legal conclusion to the facts surrounding

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Carrington's offense is subject to review for clear error.

United States v. Boots, 80 F.3d 580, 594 (1st Cir. 1996); United

States v. Luciano-Mosquera, 63 F.3d 1142, 1158 (1st Cir. 1995).

We cannot accept the proposition that the district court erred as

a matter of law by denying Carrington acceptance of

responsibility credit based on his criminal conduct (included in

Counts V and VI) while on pretrial release. The Guidelines

specify that a court, in its acceptance of responsibility

determination, can consider whether the defendant has voluntarily

terminated all criminal conduct. See U.S.S.G. 3E1.1, comment.

(n.1). Where the defendant commits additional crimes while on

release, a district court may view that as evidence that the

defendant has not voluntarily terminated all criminal conduct

and, accordingly, decline to award a reduction for acceptance of

responsibility on that ground alone. United States v. O'Neil,

936 F.2d 599, 600 (1st Cir. 1991). This is true even where the

defendant, like Carrington, has pled guilty. Id. at 600-01; see

also United States v. Morrison, 983 F.2d 730 (6th Cir. 1993);

United States v. Reed, 951 F.2d 97, 99 (6th Cir. 1991), cert.

denied, 503 U.S. 996 (1992). As a result, we conclude that the

district court did not commit legal error in considering

Carrington's criminal conduct while on pretrial release.

Accordingly, we review for clear error Carrington's

residual argument regarding the district court's refusal to deny

him a reduction for acceptance of responsibility. See, e.g.,

United States v. Burns, 925 F.2d 18, 20 (1st Cir. 1991); United

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States v. Royer, 895 F.2d 28, 29 (1st Cir. 1990). "Because

credibility and demeanor play a crucial role in determining

whether a person is genuinely contrite, and because the

sentencing judge has the unique opportunity of observing the

defendant . . . and evaluating acceptance of responsibility in a

live context, the finding of the sentencing court is entitled to

great respect," and "should not be disturbed unless it is without

foundation." Burns, 925 F.2d at 20; Royer, 895 F.2d at 29-30.

In his brief, Carrington argues that, in its weighing of his

additional offenses versus the affirmative steps Carrington has

taken to admit guilt and accept responsibility for his crimes,

the trial court ignored his remorse and "cho[se] instead to focus

solely on the commission of a new offense (for which a three

point enhancement was assessed without objection)." While

Carrington may state a plausible theory under which the district

court could have decided to give him acceptance of responsibility

credit despite his commission of new offenses, he has simply not

met his burden, see United States v. Uricoechea-Casallas, 946

F.2d 162, 167 (1st Cir. 1991), of showing that the district

court's decision was "without foundation," see Burns, 925 F.2d at

20. Furthermore, in addition to his additional offenses, the

district court also considered Carrington's decision to remain

silent in open court, a factor the court was entitled to weigh in

determining whether he demonstrated an acceptance of

responsibility. See United States v. Delgado, 36 F.3d 1229, 1236

(1st Cir. 1994), cert. denied, 115 S. Ct. 1164 (1995). Because

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the district court had sufficient foundation to do so, we affirm

its denial of Carrington's request for a three-level reduction

based on his acceptance of responsibility.

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III. CONCLUSION
III. CONCLUSION

As a result of the foregoing, the judgment of the

district court is affirmed.
affirmed

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