USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1126
UNITED STATES,
Appellee,
v.
BENJAMIN R. ZANNI,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge] ___________________
____________________
Before
Cyr, Boudin and Lynch,
Circuit Judges. ______________
____________________
Edward J. Romano and Joel D. Landry II on brief for appellant. ________________ _________________
Sheldon Whitehouse, United States Attorney, and Edwin J. Gale, __________________ ______________
Assistant United States Attorney, on brief for appellee.
____________________
August 18, 1995
____________________
Per Curiam. Defendant-appellant Benjamin R. Zanni ___________
appeals his sentence on two grounds. First, he argues that
the district court erred in failing to award him a three-
level credit for acceptance of responsibility pursuant to
3E1.1 of the United States Sentencing Guidelines
("U.S.S.G."). Second, he contends that the government
breached the plea agreement by recommending a sentence at the
high end of the guideline sentencing range.
I. Acceptance of Responsibility ____________________________
Zanni argues on appeal that the district court's failure
to award him the three-level credit for acceptance of
responsibility was clear error. He contends that his initial
statement of acceptance of responsibility was merely
incomplete and that he immediately amended it following the
government's objection. With respect to his failure to
resign from office, Zanni emphasizes that he took no
affirmative action to retain his seat after his guilty plea,
merely completing his responsibilities to his constituents.
Therefore, "appellant clearly and unequivocally ceased to be
a public official upon his decision to enter a plea." Zanni
argues that the "crucial aspects" of 3E1.1 were satisfied
by his clear acceptance of responsibility and his expedition
in notifying the government of his intention to plead guilty.
"The ultimate question under section 3E1.1 is not
whether the defendant has uttered 'a pat recital of the
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vocabulary of contrition,' but whether he has accepted full
responsibility for his part in the offense of conviction by
demonstrating 'candor and authentic remorse.'" United States _____________
v. Ocasio-Rivera, 991 F.2d 1,4 (1st Cir. 1993) (citations _____________
omitted). The burden is on the defendant to prove
entitlement to the credit for acceptance of responsibility.
Id. "The sentencing court's determination to withhold the ___
reduction will be overturned only if it is clearly
erroneous." Id. ___
"The inquiry into acceptance of responsibility is
necessarily factbound. In deciding whether a defendant is
entitled to a reduction on this score, a district court must
weigh a multitude of factors, some objective, some
subjective. Credibility and demeanor play a crucial role in
determining whether a person is genuinely contrite." United ______
States v. Royer, 895 F.2d 28, 30 (1st Cir. 1990). At the ______ _____
sentencing hearing, the court stated that it had had an
opportunity to "evaluate [Zanni's] level of understanding of
the crime that he has committed and his remorse for that
crime." Zanni's statements before and during the hearing, as
well as his actions between the time of his arrest and his
guilty plea formed the basis for the court's determination
that Zanni had failed to accept responsibility. The court
was not persuaded that Zanni was genuinely contrite.
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"Because the court had a plausible basis for arriving at the
conclusion, no more was required." Id. ___
The sentencing court was troubled by Zanni's failure to
acknowledge the full extent of his conduct in his initial
statement contained in the PSR. Efforts by a defendant to
minimize his culpability "whether during presentence
interview or in his allocution" are appropriate for
consideration in denying a reduction for acceptance of
responsibility. Ocasio-Rivera, 991 F.2d at 5. The court was _____________
also disturbed by Zanni's reference to his conduct during
sentencing as a "mistake." The court's opportunity at
sentencing to see the defendant, "listen to him, and assess
his credibility" is entitled to deference. Royer, 895 F.2d at _____
30.
In denying the three-level reduction for acceptance of
responsibility, the district court was also influenced by
Zanni's conduct in failing to resign from his position after
his arrest and in continuing to collect his salary and to run
for re-election until the time of his guilty plea. Zanni
argues that this conduct is irrelevant to whether he is
entitled to a reduction for acceptance of responsibility. We
have held, however, that a defendant's later conduct,
following the offense of conviction but before a guilty plea,
"certainly could shed light on the sincerity of a defendant's
claims of remorse" and may be considered. United States v. _____________
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O'Neil, 936 F.2d 599, 600 (1st Cir. 1991). Moreover, the ______
commentary to 3E1.1 specifically provides that one
consideration in deciding whether to grant the reduction for
acceptance of responsibility is "voluntary resignation from
the office or position held during the commission of the
offense." U.S.S.G. 3E1.1, comment, n.1(f).
The district court did not commit clear error in denying
Zanni a reduction for acceptance of responsibility.
II. Breach of Plea Agreement ________________________
Zanni argues that the government "functionally reneged
on their plea agreement" by recommending a sentence at the
high end of the imprisonment range after the court had
rejected the government's recommendation that Zanni receive a
reduction for acceptance of responsibility. Zanni's argument
is essentially that when the plea agreement ("the Agreement")
was entered into, the parties anticipated that a three-level
reduction would be granted, resulting in an imprisonment
range of 18 to 24 months. Therefore, when the government
recommended sentencing Zanni at the high end of the 27 to 33
month range, it "functionally" breached the plea agreement.
"[W]hen a plea rests in any significant degree on a
promise or agreement of the prosecutor, so that it can be
said to be part of the inducement or consideration, such
promise must be fulfilled." Santobello v. New York, 404 U.S. __________ ________
257, 262 (1971); see also United States v. Kurkculer, 918 ___ ____ ______________ _________
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F.2d 295, 297 (1st Cir. 1990) ("The Government must keep its
promises or the defendant must be released from the
bargain.").
In this case, the government fulfilled the promises it
made in the Agreement. The Agreement provided that "no one
has promised a particular sentence or sentencing range." It
further provided that "[d]efendant has been advised and
understands . . . that the final decision concerning the
range of sentences applicable to his offense rests with the
Court and that defendant will not have a right to withdraw
his plea based upon the Court's application of the
guidelines." After Zanni amended his statement in the PSR to
"completely and truthfully admit[] his involvement in the
criminal conduct to which he is pleading guilty," the
government withdrew its opposition to a three-level reduction
for acceptance of responsibility. The government recommended
a jail sentence "within the range of jail terms computed by
the Court." The Agreement specifically provided that
"Defendant understands that the government will be free to
recommend any specific sentence it deems appropriate from
within that range."
Zanni was not promised a particular imprisonment range
or a particular sentence. The Agreement anticipated both the
possibility that the sentencing court would deny a reduction
for acceptance of responsibility and that the government
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would recommend a sentence at the high end of the applicable
sentencing range. The government did not breach the plea
agreement by recommending a sentence at the high end of the
sentencing range arrived at by the court.
Accordingly, Zanni's sentence is summarily affirmed. See ________ ___
Loc. R. 27.1.
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