USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-2211
UNITED STATES,
Appellee,
v.
KERR CARRINGTON,
Defendant - Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Cyr and Lynch, Circuit Judges.
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LisaAyn Padilla, by appointment of the Court, for appellant.
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Donald L. Cabell, Assistant United States Attorney, with
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whom Donald K. Stern, United States Attorney, and Dina Michael
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Chaitowitz, Assistant United States Attorney, were on brief for
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appellee.
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September 18, 1996
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TORRUELLA, Chief Judge. On March 28, 1995, Defendant
TORRUELLA, Chief Judge.
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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
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(counts V and VI), see 18 U.S.C. 1343. On August 21, 1995,
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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
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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
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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
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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
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quotations omitted); see Fed. R. Crim. P. 32(e); see also former
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Fed. R. Crim. P. 32(d), comment. (advisory committee's note to
1983 amendments to predecessor of Rule 32(e)); United States v.
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Japa, 994 F.2d 899, 902 (1st Cir. 1993) (stating that, to set
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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.
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Puerta, 38 F.3d 34, 41 (1st Cir. 1994). Much as Carrington does
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here, the defendant in Puerta argued that "'no [property] had
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been stolen or taken by fraud at the time of transfer.'" Id.
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(quoting brief of defendant). Paraphrasing that argument as a
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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
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(1st Cir. 1995), cert. denied, __ U.S. __, 116 S. Ct. 1343
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(1996), as previous cases have held direct appellants only to a
harmless error standard. Id.; see, e.g., United States v. Parra-
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Iba ez, 936 F.2d 588, 598 & n.24 (1st Cir. 1991). We note,
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however, that although we follow the more stringent standard set
out in Ferguson and Japa, even were we to apply harmless error
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review, Carrington's argument would fail.
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claim "that when transferred the [property] had not yet been
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stolen," id. (emphasis in original), we concluded that we could
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"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
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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,"
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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
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statute itself is phrased in the disjunctive, punishing the
transport of goods known to be "stolen, converted or taken by
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fraud," see 18 U.S.C. 2314, as Carrington himself quotes in his
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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
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States v. Ferguson, 60 F.3d 1, 4 (1st Cir. 1995) (recognizing PSR
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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.
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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
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(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.
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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
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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,
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__ 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,
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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
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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
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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
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section 2X1.1 to the facts of Carrington's offense conduct so
long as it is not clearly erroneous. United States v.
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Chapdelaine, 989 F.2d 28, 34 (1st Cir. 1993) (discussing clear
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error with respect to section 2X1.1), cert. denied, 114 S. Ct.
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696 (1994).
In making this argument, Carrington confronts our
opinion in United States v. Egemonye, 62 F.3d 425 (1st Cir.
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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.
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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.
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We rejected the application of section 2X1.1 to the
defendant's conduct in Egemonye. Id. at 430. We noted that
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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
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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.
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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
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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.
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Thus, we conclude that Egemonye is squarely on point.
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In light of Egemonye, section 2X1.1 is simply not
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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
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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
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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 . . .
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"), 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.
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Prendergast, 979 F.2d 1289, 1291-92 (8th Cir. 1992) (discussing
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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.
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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
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(1st Cir. 1996); United States v. Atwood, 963 F.2d 476, 477 n.2
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(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.
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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).
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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
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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,
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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.
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Talladino, 38 F.3d 1255, 1263 (1st Cir. 1994). However, the
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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
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States v. Luciano-Mosquera, 63 F.3d 1142, 1158 (1st Cir. 1995).
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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.
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(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,
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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
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also United States v. Morrison, 983 F.2d 730 (6th Cir. 1993);
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United States v. Reed, 951 F.2d 97, 99 (6th Cir. 1991), cert.
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denied, 503 U.S. 996 (1992). As a result, we conclude that the
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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.,
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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
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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.
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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
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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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