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  • United States v. James Michael Rowland, 906 F.2d 621, 11th Cir. (1990)

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    This document summarizes a court case where James Michael Rowland pled guilty to attempting to possess marijuana with intent to distribute. He appealed his sentence on two grounds: 1) the court did not reduce his sentence for accepting responsibility, and 2) the court imposed an excessive $50,000 fine. The appeals court affirmed the first issue, finding the judge properly denied a sentence reduction. However, the court vacated the fine and remanded for further proceedings, finding insufficient evidence that Rowland had the ability to pay such a large fine given his financial circumstances and the government seizure of $35,000 he had at the time of arrest.

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    Filed: 1990-07-23 Precedential Status: Precedential Citations: 906 F.2d 621 Docket: 89-3264

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    This document summarizes a court case where James Michael Rowland pled guilty to attempting to possess marijuana with intent to distribute. He appealed his sentence on two grounds: 1) the court did not reduce his sentence for accepting responsibility, and 2) the court imposed an excessive $50,000 fine. The appeals court affirmed the first issue, finding the judge properly denied a sentence reduction. However, the court vacated the fine and remanded for further proceedings, finding insufficient evidence that Rowland had the ability to pay such a large fine given his financial circumstances and the government seizure of $35,000 he had at the time of arrest.

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    11 views5 pages

    United States v. James Michael Rowland, 906 F.2d 621, 11th Cir. (1990)

    Uploaded by

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    This document summarizes a court case where James Michael Rowland pled guilty to attempting to possess marijuana with intent to distribute. He appealed his sentence on two grounds: 1) the court did not reduce his sentence for accepting responsibility, and 2) the court imposed an excessive $50,000 fine. The appeals court affirmed the first issue, finding the judge properly denied a sentence reduction. However, the court vacated the fine and remanded for further proceedings, finding insufficient evidence that Rowland had the ability to pay such a large fine given his financial circumstances and the government seizure of $35,000 he had at the time of arrest.

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    of 5

    906 F.

    2d 621

    UNITED STATES of America, Plaintiff-Appellee,


    v.
    James Michael ROWLAND, Defendant-Appellant.
    No. 89-3264.

    United States Court of Appeals,


    Eleventh Circuit.
    July 23, 1990.

    Armando Garcia, Tallahassee, Fla., for defendant-appellant.


    R. Timothy Jansen, Asst. U.S. Atty., Tallahassee, Fla., for plaintiffappellee.
    Appeal from the United States District Court for the Northern District of
    Florida.
    Before KRAVITCH, Circuit Judge, RONEY* and ALDISERT**, Senior
    Circuit Judges.
    RONEY, Senior Circuit Judge:

    Defendant James Michael Rowland pled guilty to attempting to possess with


    intent to distribute less than fifty kilograms of marijuana. 21 U.S.C.A. Secs.
    841, 846. On appeal, he asserts two errors relating to his sentence: (1) the
    district court should have awarded him a reduction in the sentence for his
    acceptance of responsibility, and (2) the district court imposed an excessive
    fine. We affirm as to the first issue, but vacate the fine, and remand for further
    proceedings.

    Rowland and another person were arrested when they attempted to purchase
    thirty-five pounds of marijuana at a meeting with undercover law enforcement
    agents. The agents seized $35,000 in cash that Rowland had brought to the
    meeting to make the purchase.

    Acceptance of Responsibility

    In asking the court to award a two-point reduction in the offense level


    corresponding to his crime, for acceptance of responsibility, U.S.S.G. Sec.
    3E1.1, the defendant relied solely on his guilty plea. The sentencing judge then
    denied Rowland's request, stating:

    I think under the facts of this case, there is nothing to indicate that he's entitled
    to a two point reduction for acceptance [of] responsibility.

    All that can be said is that he plead guilty. Although that is something the court
    can consider, I don't find it is, in and of itself, in this instance, ... sufficient to
    give him a two level credit.

    So, I adhere to the findings of the probation officer in that respect.

    A guilty plea does not automatically entitle a defendant to a reduction for


    acceptance of responsibility. Sec. 3E1.1 application note 3. The district judge
    allowed Rowland ample opportunity at the sentencing hearing to demonstrate
    that he deserved an award under Sec. 3E1.1., and the judge accorded
    evidentiary weight to the guilty plea. The sentencing judge's determination is
    entitled to deference from this Court, and is not clearly erroneous. See United
    States v. Spraggins, 868 F.2d 1541, 1543 (11th Cir.1989).

    Rowland argues that the district court denied his request because he would not
    reveal information relating to other criminal conduct. Rowland contends that
    this amounts to a violation of his Fifth Amendment right against selfincrimination.

    The factual premise of this argument is doubtful. The district judge's comment,
    on which Rowland seizes, was made after the judge's ruling as to acceptance of
    responsibility, and was apparently not directly related to the Sec. 3E1.1 issue. In
    any event, we have rejected the argument made by a defendant who testified to
    his innocence at trial, that Sec. 3E1.1 violates a defendant's right against selfincrimination by requiring him to confess perjury to receive benefits of this
    section. United States v. Henry, 883 F.2d 1010 (11th Cir.1989). In discussing
    whether a defendant was penalized for an exercise of Fifth Amendment rights,
    several courts have restated our point in Henry, 883 F.2d at 1011, that Sec.
    3E1.1 is not a penalty or sentence enhancement provision, but is rather a section
    providing for leniency under certain statutorily prescribed conditions. See, e.g.,
    United States v. Rogers, 899 F.2d 917, 924 (10th Cir.1990); United States v.
    Gonzalez, 897 F.2d 1018, 1021 (9th Cir.1990); United States v. White, 869
    F.2d 822, 826 (5th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3172, 104 L.Ed.2d

    1033 (1989).
    10

    In United States v. Perez-Franco, 873 F.2d 455 (1st Cir.1989), where the
    defendant pled guilty to one count of a multiplecount indictment pursuant to a
    plea agreement but refused to admit responsibility for the offenses in the other
    counts, the district court declined to award an adjustment for acceptance of
    responsibility strictly on the theory that Sec. 3E1.1 required the defendant to
    accept responsibility for all charged offenses. The First Circuit reversed,
    holding that Sec. 3E1.1 did not contain such a requirement, and opining that the
    district court's ruling violated the defendant's right against self-incrimination.
    873 F.2d at 461-64; see also United States v. Guarin, 898 F.2d 1120, 1123-24
    (6th Cir.1990) (Jones, J., concurring). Rowland argues Perez-Franco applies
    here. We disagree. As the Sixth Circuit has said: "Perez-Franco is instructive
    only when, absent the district court's allegedly illegitimate expectation, there is
    clear evidence that the defendant actually accepted responsibility." Guarin, 898
    F.2d at 1122. It is inapplicable to this case where there is no evidence aside
    from the guilty plea that Rowland accepted responsibility.

    Imposition of Fine
    11

    Although the probation officer did not recommend a fine, nor did the
    Government request one, the sentencing judge imposed a $50,000 fine on the
    following reasoning:

    12

    Mr. Rowland, I read your P.S.I.

    13

    I wish you would tell us a little more. For instance I would like to know where
    you got thirty-five thousand dollars when your P.S.I. shows you don't have
    thirty-five hundred dollars available.

    14

    It leads me to one conclusion, and that is that the information available to me as


    to your assets is incorrect and that you have undisclosed assets somewhere.

    15

    And I am going to take that into consideration in the imposition of a fine.

    16

    You are certainly entitled to have every right to not make any comments to the
    probation officer. I would be remiss if I held that against you, I don't.

    17

    I am just telling you, I have lack of information on your side and you are not
    here giving me any more.

    18

    So I have the fact that you came from Valdosta, Georgia for the purpose of
    buying thirty-five pounds of marijuana to take back and distribute upon the
    streets of Valdosta, Georgia, for monetary gain.

    19

    And apparently, from the P.S.I., you either have sums of money out there that
    you are hiding or is available to you.

    20

    I am going to count it up to you as being your money, since you have not told
    me anything to disabuse me from that.

    21

    The Sentencing Guidelines mandate that the district court impose a fine in all
    cases, except when the defendant has established

    22

    --that he is unable to pay a fine, even over time, or

    23

    --that the fine would unduly burden his dependents.

    24

    Secs. 5E4.2(a), (f). The sentencing court should refer to the table setting
    amounts of fines for different offense levels, then consider seven listed factors,
    including any pertinent equitable concerns, in deciding the amount of the fine
    to impose within the range. Sec. 5E4.2(c)(3), (d).

    25

    One of the factors that the district court must consider in this analysis is the
    defendant's ability to pay a fine within the range. Sec. 5E4.2(d)(2). If the
    defendant proves that he is unable to pay such a fine, even over time, then the
    district court may impose a fine below the applicable range, or no fine at all.
    Sec. 5E4.2(f). United States v. Walker, 900 F.2d 1201, 1206 n. 5 (8th
    Cir.1990). The district court's determination of the appropriate fine thus
    involves factual issues, including the defendant's ability to pay the fine
    imposed, at least over time. As with all factual issues under the guidelines, this
    determination is entitled to deference and can be reversed only if it is clearly
    erroneous. 18 U.S.C.A. Sec. 3742(d); Walker, 900 F.2d at 1205.

    26

    The district court's determination that Rowland could pay a fine of $50,000 was
    based solely on the fact that he had $35,000 in his possession at the time of his
    arrest. The law enforcement authorities have seized the $35,000. Assuming that
    this money belonged to Rowland, a fact about which there is no evidence, he
    no longer has access to it to pay a fine. The record appears to contain no other
    evidence that Rowland is able to pay a fine of this magnitude, either
    immediately or in the future. The presentence report stated that Rowland had

    less than $8,000 in assets. Before incarceration, he earned only approximately


    $100 to $125 per week from a car restoration business. The defendant has
    periodic child-support obligations. Counsel was appointed to represent
    Rowland in the proceedings in this case, as a result of his alleged inability to
    pay for counsel of his own choice.
    27

    Evidence that a defendant has failed to disclose the existence of assets to the
    court, may support a determination that the defendant is able to pay a fine with
    those undisclosed assets. Cf. Sec. 5E4.2 application note 6 (fact that defendant
    has failed to disclose assets may justify imposition of a fine in excess of range
    established in table). Like any other factual finding, however, this determination
    must be reasonably supported by probative evidence. Various types of evidence
    have been held to support such a finding. See United States v. Fabregat, 902
    F.2d 331 (5th Cir.1990) (defendant had significant amount of money, possessed
    valuable professional skills, and was member of wealthy family); United States
    v. Hays, 899 F.2d 515, 518 (6th Cir.1990) (defendant's financial ledgers listed
    large amounts of money, location of which was unknown); United States v.
    Allen, 886 F.2d 143, 146 (8th Cir.1989) (defendant purchased expensive car
    immediately prior to sentencing); United States v. Roberts, 881 F.2d 95, 103
    (4th Cir.1989) (presentence report recited substantial assets, of which defendant
    denied ownership). In this case, however, the record reflects virtually no
    evidence before the sentencing judge to suggest that Rowland had any
    undisclosed assets. Accordingly, we vacate the fine imposed and remand to the
    district court for further consideration of this issue in compliance with the
    Sentencing Guidelines.

    28

    AFFIRMED in part, VACATED and REMANDED in part.

    See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit

    **

    Honorable Ruggero J. Aldisert, Senior U.S. Circuit Judge for the Third Circuit,
    sitting by designation

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