NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-1344
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UNITED STATES OF AMERICA
v.
EVENS CLAUDE,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 2-11-cr-00090-001)
District Judge: Hon. Jan E. Dubois
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Submitted under Third Circuit LAR 34.1(a)
October 29, 2012
Before: SLOVITER, AMBRO and ALDISERT, Circuit Judges.
(Filed: November 1, 2012)
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OPINION OF THE COURT
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ALDISERT, Circuit Judge.
Evens Claude appeals a judgment of the United States District Court for the
Eastern District of Pennsylvania, sentencing him to 18 months imprisonment for (1)
conspiracy to utter counterfeit obligations and (2) uttering counterfeit obligations. Claude
argues that the District Court erred in denying his request for a two-level sentence
reduction for acceptance of responsibility under the Sentencing Guidelines because it
based its decision on allegations underlying an indictment which remain “unproven” and
“in dispute.” Brief for Appellant 10. We conclude that the District Court did not err in
determining that Claude failed to qualify for the acceptance of responsibility reduction,
and will therefore affirm the judgment of sentence.
I.
Because we write primarily for the parties, who are familiar with the facts and the
proceedings in this case, we will revisit them only briefly.
On June 18, 2010, Claude and a co-defendant were arrested at the Galleria Mall in
Houston, Texas, with approximately $10,700.00 in counterfeit currency in their
possession. A grand jury indicted Claude for conspiracy to utter counterfeit obligations,
in violation of 18 U.S.C. § 371, and uttering counterfeit obligations, in violation of 18
U.S.C. § 472. On October 3, 2011, Claude entered an open guilty plea to the indictment
and the Court revoked Claude’s bail. The Court revoked bail after determining there was
probable cause that Claude had committed felonies related to identity theft while on
release, and clear and convincing evidence that Claude violated the conditions of his
release by continuing to have contact with people engaged in criminal activity. The Court
based its determinations on extensive evidence presented by the Government that Claude
was involved in a wide-ranging identity-theft scheme while on release. On January 25,
2012, a federal grand jury in Philadelphia indicted Claude for conspiracy, bank fraud,
access device fraud, and aggravated identity theft related to the alleged identity-theft
scheme.
At the January 31, 2012 sentencing hearing for the counterfeiting crimes to which
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Claude had pleaded guilty, the District Court denied Claude’s request for a two-level
sentence reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. The
Government presented much of the same evidence that it had presented at the earlier bail
revocation hearing, with a detailed description of Claude’s alleged involvement in the
identity-theft scheme and the incriminating evidence gathered by United States Secret
Service agents during a search of Claude’s apartment. This evidence included, among
other things, cellular phones that had been used to facilitate identity theft, records of text
message communications in furtherance of identity theft, computer records indicating
unauthorized attempts to access victims’ bank accounts, and a stolen check from a victim
of bank fraud. The Court considered this evidence and determined over Claude’s
objection that he was not entitled to the acceptance of responsibility reduction, and
sentenced him to 18 months’ imprisonment. Claude timely appeals.
II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. Although we review de
novo a district court’s interpretation of the Sentencing Guidelines, including U.S.S.G.
§ 3E1.1, we review for clear error a district court’s factual determination regarding a
criminal defendant’s entitlement to a sentence reduction for acceptance of responsibility.
United States v. Ceccarini, 98 F.3d 126, 129 (3d Cir. 1996). “Because the sentencing
judge ‘is in a unique position to evaluate a defendant’s acceptance of responsibility,’ we
give great deference on review to a sentencing judge’s decision not to apply the two-level
reduction for acceptance of responsibility to a particular defendant.” United States v.
Barr, 963 F.2d 641, 657 (3d Cir. 1992) (quoting U.S.S.G. § 3E1.1 cmt. n.5).
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III.
We conclude that the District Court did not err in denying Claude a two-level
sentence reduction for acceptance of responsibility, and will affirm its sentence.
Section 3E1.1(a) of the Sentencing Guidelines states: “If the defendant clearly
demonstrates acceptance of responsibility for his offense, decrease the offense level by
two levels.” The Commentary sets forth a non-exhaustive list of considerations which
may be used in determining whether a defendant qualifies for the two-level sentence
reduction. U.S.S.G. § 3E1.1 cmt. n.1. Two considerations particularly relevant to the case
before us are whether a defendant: “(A) truthfully admit[ted] the conduct comprising the
offense(s) of conviction . . .” and “(B) voluntar[il]y terminat[ed] or withdr[ew] from
criminal conduct or associations.” Id. The Commentary further explains that although a
defendant’s entry of a guilty plea before trial constitutes significant evidence of
acceptance of responsibility, a defendant may not qualify for the reduction if he or she
engages in conduct inconsistent with that acceptance. U.S.S.G. § 3E1.1 cmt. n.3. This
Court has stated that “[a] mechanical plea or confession to an indictment or counts
thereof does not necessarily evince a genuine sense of remorse or intent to pursue lawful
conduct.” Ceccarini, 98 F.3d at 130. “Continual criminal activity, even differing in nature
from the convicted offense, is inconsistent with an acceptance of responsibility and an
interest in rehabilitation.” Id.
Claude argues that the District Court inappropriately considered his alleged
identity-theft activities as evidence of conduct that disqualifies him for a sentence
reduction. Claude considers the evidence provided by the Government to be “simply an
explanation of the basis for the arrest.” Brief for Appellant 10. He argues that because
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“[t]he Government’s allegations remain unproven and the charges are still in dispute,”
this evidence is insufficient to support denial of the sentence reduction. Id.
We find no merit in this argument. To be sure, this Court has prohibited the use of
bare arrest records alone to increase a defendant’s sentence. See United States v. Berry,
553 F.3d 273, 284 (3d Cir. 2009) (holding that “a bare arrest record—without more—
does not justify an assumption that a defendant has committed other crimes and it
therefore can not [sic] support increasing his/her sentence in the absence of adequate
proof of criminal activity”). First, we note that denial of a sentence reduction is not
actually a sentence increase, but more importantly, here the District Court had before it
significantly more evidence than a bare arrest record. Facts relevant to sentencing, such
as the facts of Claude’s conduct here, need only be proved by a preponderance of the
evidence. See United States v. Grier, 475 F.3d 556, 568 (3d Cir. 2007) (en banc). The
Government introduced detailed evidence of Claude’s criminal activities and
involvement with individuals engaged in criminal activity after his arrest and during the
pretrial period. This evidence was sufficient for the Court to conclude by a preponderance
that Claude continued his criminal conduct while on release, and consistent with U.S.S.G.
§ 3E1.1 cmt. n.3, the Court determined that this conduct outweighed any acceptance of
responsibility suggested by Claude entering a guilty plea. In light of the substantial and
extensive evidence proffered by the Government, we conclude that the District Court’s
determination that Claude did not qualify for an acceptance of responsibility two-level
sentence reduction was not clearly erroneous.
*****
We have considered all of the arguments advanced by the parties and conclude
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that no further discussion is necessary. The judgment of the District Court will be
AFFIRMED.
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