United States Court of Appeals
For the Eighth Circuit
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No. 11-3260
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Justin Michael Ray
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: September 18, 2012
Filed: October 2, 2012
[Unpublished]
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Before MELLOY, BEAM, and BENTON, Circuit Judges.
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PER CURIAM.
Justin Michael Ray, a mortgage broker, defrauded a mortgage company by
helping his father falsify a loan application to buy Ray’s home, knowing his father
would default. He pled guilty to bank fraud, in violation of 18 U.S.C. §§ 1344 and
2, and to engaging in monetary transactions using funds from specified unlawful
activity, in violation of 18 U.S.C. § 1957 and 2. The district court1 sentenced him to
37 months’ imprisonment, enhancing his sentence for obstructing justice under
U.S.S.G. § 3C1.1. Ray does not object to the obstruction-of-justice enhancement but
appeals the denial of an adjustment for acceptance of responsibility.
This court gives great deference to a district court’s denial of an acceptance-of-
responsibility reduction, reviewing for clear error. United States v. Vega, 676 F.3d
708, 723 (8th Cir. 2012). An enhancement for obstructing justice “ordinarily
indicates that the defendant has not accepted responsibility for his criminal conduct.”
U.S.S.G. § 3E1.1, Application Note 4. “There may, however, be extraordinary cases
in which adjustments under both §§ 3C1.1 and 3E1.1 may apply.” Id. “[W]hen the
Commission refers to an ‘extraordinary case,’ it means a situation that is extremely
rare and highly exceptional.” United States v. Honken, 184 F.3d 961, 970 (8th Cir.
1999). In identifying those cases, courts are to consider the totality of circumstances.
Id. at 968.
Although “there is no magic formula,” the district court should consider
the timing and nature of the defendant’s obstructive conduct, the degree
of his acceptance of responsibility, whether his obstruction of justice
was an isolated and early incident, whether he voluntarily terminated his
obstructive conduct, whether he admitted and recanted his obstructive
conduct, and whether he assisted in the investigation of his and others’
offenses.
United States v. Stoltenberg, 309 F.3d 499, 500 (8th Cir. 2002) (per curiam) (quoting
Honken, 184 F.3d at 969).
Ray pled guilty, admitted to relevant conduct, and assisted in investigating his
and others’ offenses. However, he did not accept responsibility until he was arrested
1
The Honorable Linda R. Reade, Chief Judge, United States District Court
for the Northern District of Iowa.
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– about five years after beginning his criminal activities, almost a year after providing
(admitted) false statements to the FBI, and 15 days after trying to coordinate his
explanations with his father’s in a recorded conversation. Ray challenges the district
court’s reliance on the conversation, arguing it was obtained by means “akin to
entrapment” – a tenuous claim since during the conversation, Ray said he had thought
about explanations, generated those considered, and repeatedly returned to the topic.
The record does not support Ray’s assertion that “but for the father’s efforts to coax
a potentially obstructive explanation for the checks in question, Mr. Ray would not
have engaged in any further obstructive conduct”; a reasonable observer could
determine he intended to make false statements before the conversation. See United
States v. Smith, 665 F.3d 951, 957 (8th Cir. 2011). But even ignoring the recorded
conversation, his false statements to the FBI – not recanted until he was arrested
about a year later – were sufficient obstruction of justice. The district court did not
clearly err in determining that, by the totality of circumstances, Ray’s case was not
extraordinary. The district court properly denied the acceptance-of-responsibility
adjustment.
The district court’s judgment is affirmed.
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