United States v. James Michael Rowland, 906 F.2d 621, 11th Cir. (1990)
United States v. James Michael Rowland, 906 F.2d 621, 11th Cir. (1990)
2d 621
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
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.
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
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
15
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
23
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
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
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