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United States v. D'Angelo, 1st Cir. (2015)
United States v. D'Angelo, 1st Cir. (2015)
No. 14-1688
UNITED STATES OF AMERICA,
Appellee,
v.
MICHEL D'ANGELO,
Defendant, Appellant.
Before
Howard, Chief Judge,
Torruella and Barron, Circuit Judges.
David J. Van Dyke and Hornblower Lynch Rabasco & Van Dyke,
P.A., on brief for appellant.
Rene M. Bunker, Assistant United States Attorney, and
Thomas E. Delahanty II, United States Attorney, on brief for
appellee.
October 6, 2015
Defendant-appellant Michel
Finding no
error, we affirm.
I.
Facts
See
United States
v.
Miller
("Miller"),
robbed
the
Kennebunk
Savings
Bank
Shortly before the bank robbery, Miller also called 9-1-1 and
falsely reported having just been stabbed by her boyfriend behind
an outlet store. D'Angelo instructed Miller to place both of these
9-1-1 calls.
-2-
compliant
with
his
demands."2
He
approached
bank
teller,
After obtaining
wig,
and
screwdriver,
among
other
things.
was
arrested
on
April
11,
2013,
for
bank
D'Angelo
Miller's DNA was found on the pink sweatsuit jacket and the wig.
Subsequently, Miller's mother identified the pink sweatpants and
purse worn by D'Angelo as belonging to her daughter.
4
stated
by
the
government
in
its
"Prosecution
Version,"
but
-4-
for
(U.S.S.G.
possession
of
2B3.1(b)(2)(E));
dangerous
a
weapon
two-level
(screwdriver)
increase
for
his
two.
262 months, but the 240-month statutory maximum lowered that range
to 210-240 months.
The PSR did not recommend a three-level reduction for
acceptance of responsibility pursuant to U.S.S.G. 3E1.1 for
several reasons.
Additionally,
in
motion
for
variant
sentence,
-6-
his
sentencing
hearing,
D'Angelo
denied
that
he
In addition,
-7-
The
of
obstruction
of
justice
generally
indicates
that
district
court
adopted
the
PSR's
Guidelines
In the court's
The screwdriver was found at the side of the road along with the
clothing used in the robbery.
-8-
circumstances
of
the
offense,
D'Angelo's
history
and
with
allegations
of
obstruction
of
justice."
We will
not reverse unless we are "left with a definite and firm conviction
-9-
the
defendant
clearly
demonstrates
acceptance
U.S.S.G. 3E1.1(a).
of
But a
35, 39-40 (1st Cir. 2004) (quoting Royer, 895 F.2d at 30).
"the
burden
of
proving
responsibility credit."
his
entitlement
to
an
He has
acceptance-of-
resulting
ordinarily
in
indicates
an
that
obstruction
the
of
justice
defendant
has
enhancement
not
accepted
defendant
has
that
the
burden
of
proving
an
adjustment
for
United States v.
-11-
cuts
against
D'Angelo's
claim
that
he
"unambiguously
finding is clearly erroneous, see Royer, 895 F.2d at 29, and, based
on Miller's testimony and the corroborating evidence found along
the side of the road, it seems that he could not seriously do so.
In addition, contrary to D'Angelo's assertion that he "ceased
criminal activities at the point of his change-of-plea," the
district court found that criminal activity continued even beyond
his guilty plea, as evidenced by his involvement in the sex
incident.
clearly erroneous.
See id.
-12-
ground
to
deny
him
credit
acceptance
of
responsibility.
Finally, D'Angelo argues that only conduct subsequent to
his guilty plea is relevant and, therefore, he should not have been
denied credit on account of conduct that occurred prior to his
guilty plea.
significant
continuation
of,
the
offense
of
-13-
yet
another
reason
for
denying
him
acceptance-of-
-14-