decided as amended october 16 1989.: August 22, 1989.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. 88-12-02-CR-05.
Chapman and Wilkinson, Circuit Judges, and Spencer, United States District Judge for the Eastern District of Virginia, sitting by designation.
Appellant James Edward Harris ("Harris") challenges the district court's refusal to grant him a two-step offense level reduction pursuant to Sentencing Guideline § 3E1.1(a) based on his purported acceptance of responsibility for his criminal conduct. Harris also contends that even if the trial court did not err in declining to grant him an offense level reduction, he is entitled to be resentenced because the district court failed to articulate the standard and burden of proof that should be applied in resolving this sentencing dispute. For the reasons stated below, we affirm the sentence imposed by the district court.
Harris was charged in a two-count indictment with conspiracy to defraud the government by obtaining payment through false claims in violation of 18 U.S.C. § 286 (1985), and with aiding and abetting the filing of a false claim against the United States in violation of 18 U.S.C. §§ 287 and 2 (1985).
The scheme Harris engineered involved filing false tax returns. Harris and others fabricated or obtained false birth certificates and motor vehicle cards, and false Form W-2 Wage and Tax statements in the names of various fictitious individuals. Harris and his co-conspirators then prepared false tax returns based on this fictitious information and submitted the documents to H&R Block under its "Rapid Refund" program in order to obtain tax refunds. The scheme involved 40 individual tax returns which sought $69,736.00 in refunds.
Pursuant to a plea agreement, Harris pled guilty to the conspiracy charge in count one of the second superseding indictment and the government moved for dismissal of count two. The plea agreement provided that Harris would cooperate with the government and testify fully and truthfully in any proceeding regarding crimes of which he had knowledge. The government in turn promised that it would not oppose imposition of the minimum sentence within the applicable guideline range and not recommend an upward departure. The government agreed to inform the court at Harris' sentencing of the nature and extent of his cooperation, including whether it believed Harris had accepted responsibility for his illegal conduct. The government explicitly declined, however, to stipulate that Harris had accepted responsibility for his illegal conduct.
Because the offense committed occurred after November 1, 1987, Harris was sentenced pursuant to the Sentencing Reform Act of 1984, 18 U.S.C. §§ 3551-86 (1985 & Supp. 1989). The presentence report determined an appropriate sentencing guideline range of 51 to 63 months imprisonment based on an offense level of 17 and a criminal history at category VI. The report recommended no downward adjustment for acceptance of responsibility. The report stated that even though Harris admitted his involvement in the scheme, he failed to show any remorse for his actions.
Harris objected to the presentence report recommendation that he not receive a two-step reduction for acceptance of responsibility. He testified at the sentencing hearing that he was sorry for what he had done and that he did not believe it was right. He explained that his perceived lack of candor during the interviews with government agents arose from his reluctance to implicate his brother in the scheme.
IRS agent Jim Burgess interviewed Harris on two occasions. He testified that although Harris admitted preparing false documents, he felt Harris was evasive when he responded to questions. As a result of Harris' obliquity, an interview which normally should have taken approximately two hours instead lasted two days. Burgess concluded that Harris "did not show any remorse at all." Probation officer Robert Singleton also testified Harris did not express any remorse, that Harris reluctantly admitted his culpability, and that Harris made this admission only when asked directly. Singleton described Harris as manipulative. Singleton therefore recommended that the court deny the reduction for acceptance of responsibility.
The district court overruled Harris' objection to the presentence report and found that Harris had not clearly shown acceptance of responsibility. The court concluded that based on Harris' demeanor and conduct during the sentencing proceeding, he had "not seen a clearer case" of a defendant who had not accepted responsibility for his actions. The district court sentenced Harris to a term of imprisonment of 60 months and a three year term of supervised release.
Guideline § 3E1.1(a) provides that a sentencing court may reduce the offense level by two levels "if the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct . . . ." In determining whether a defendant qualifies for a two-step offense level reduction, the Commentary to Guideline § 3E1.1 sets forth ...