USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-2211

UNITED STATES,

Appellee,

v.

KERR CARRINGTON,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Cyr and Lynch, Circuit Judges.

______________

_____________________

LisaAyn Padilla, by appointment of the Court, for appellant.

_______________
Donald L. Cabell,
_________________

Assistant United

whom Donald K. Stern, United

________________
Chaitowitz, Assistant
__________
appellee.

States Attorney,

with

States Attorney, and

Dina Michael
____________

United States Attorney, were

on brief for

____________________

September 18, 1996

____________________

TORRUELLA, Chief Judge.

TORRUELLA, Chief Judge.
____________

On March

28, 1995, Defendant

Kerr Carrington

("Carrington") pleaded guilty to

interstate transportation

through

of property

IV), see 18 U.S.C.

___

(counts V and

2314,

VI), see 18 U.S.C.

___

Carrington was

sentenced to a

followed

36

by a

of

plea based on Federal

(Counts I

and two counts of wire fraud

1343.

mandatory special assessment of $50.

his

taken by fraud

term of 50

month period

four counts of

On August 21,

1995,

months incarceration,

supervised release,

and

He contests the validity of

Rule of Criminal

also appeals his sentence on several grounds.

Procedure 11(f) and

We affirm both his

conviction and his sentence.

I.
I.

The case arises

defraud.

BACKGROUND
BACKGROUND
__________

from two separate

In the first set,

sets of schemes

charged in Counts I

to

through IV and

spanning from December 1993

the purchase

of four

to April 1994, Carrington negotiated

expensive cars from

out-of-state dealers.

He then tricked the dealers into believing that they had received

wire transfers in payment for the

shipped to Carrington in

on

May

3, 1994,

proceedings in

Carrington

and

and

cars.

All four cars were then

Massachusetts.

Carrington was arrested

released

the district

on conditions

court.

the government

On

entered

pending

or about July

into

a plea

further

8, 1994,

agreement

pursuant to which he agreed to plead guilty to all four counts of

the

did

information, which was filed

not

immediately

information.

waive

on July 19,

indictment

Instead, upon Carrington's

-2-

and

1994.

plead

motion, the

Carrington

to

the

Probation

Office began

working on the Presentence Report

intention of

having Carrington plead

("PSR") with the

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

November

Count V took

14,

1994,

preparation of

Littles

Quorum

place in

while

the

International, Ltd.

IBT

provides

a bank

On or

were

about

awaiting

the

himself as Chad

Receivable/Payroll Manager of

("Quorum"),

International Banking Technology,

creditors

parties

the PSR, Carrington, identifying

("Littles"), the Accounts

Virginia.

November 1994.

opened an

account with

Inc. ("IBT"), of

Springfield,

drafting

system

that allows

to collect payment over the phone by having the debtor

pre-authorize a one-time

is provided

with

the

debit to his or her account.

debtor

information

by

its

When IBT

client,

it

prepares bank drafts (or

permits the client to produce

the bank

drafts

software) that

by IBT's

by means

of its

client into its bank

the

debtor's

account

account.

is

are deposited

When these drafts

debited

and

the

are processed,

creditor

receives

payment.

On

or about November 16, 1994, Carrington faxed thirty

completed Bank Draft Sales

draft

forms

are

used

to

Forms ("draft forms") to IBT.

provide

IBT

with

the

These

information

necessary for it to produce the bank drafts for the one-time pre-

authorized

debits.

The draft forms that Carrington faxed to IBT

-3-

provided all

of the necessary information including

the name of

the

company to

amount

of

the

charge,

draft

its checking

requested

authorized one-time debit.

30 bank

drafts of

to

account

cover

number, and

the purported

the

pre-

Carrington requested that IBT prepare

$5,000 each

for a

total of

$150,000, which

purportedly was to constitute payment for attendance at a seminar

allegedly held by Quorum.

when

verify

as

part of

Carrington's attempt failed, however,

IBT's fraud

the authorization

control

for some

system, it

of the

bank drafts,

found that some of the phone numbers were incorrect.

suspected

fraud,

it

never

completed

attempted to

processing

and it

Because IBT

Carrington's

request, and Carrington failed to obtain the funds he sought.

The conduct charged

1994.

On

or about

in Count VI took place in December

December 5,

1994, Carrington,

identifying

himself as

Paul Epstein ("Epstein"), Chief

Citibank, phoned IBT,

forms,

and

requested IBT

transmit his

requests for

software also

the

faxed them an

application for bank

software

that

bank drafts

would

to IBT by

allowed Carrington to receive from

draft

permit him

modem.

to

This

IBT, by modem,

instructions necessary to print the bank drafts at his home.

On December 29,

1994, Carrington sent to

for printing bank drafts at his residence,

to

Financial Officer of

debit

80 different

totalling $583,443.50.

companies'

He

IBT by modem

which were to be used

accounts

failed to

80 forms

obtain

in varied

the total

amounts

amount

sought, receiving and depositing $268,000 into a personal account

before the U.S. Secret Service discovered his actions.

-4-

Based on the events of November and December 1994,

government filed

a superseding information adding

the

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.
II.

DISCUSSION
DISCUSSION
__________

A.
A.

In

Carrington's Rule 11 argument

Carrington's Rule 11 argument

his

brief,

Carrington contends

Rule of Criminal

part

on

plea

Specifically, he

without

having

so

that the district court

which

argues

that

there

was

even viewed

below,

erred under Federal

Procedure 11(f) by calculating

for

argued

no

in

his sentence in

factual

the

basis.1

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

____________________

Fed.

R.

Crim. P.

11(f)

("Determining accuracy

provides that:

Notwithstanding the acceptance of

of

guilty, the court

judgment

upon

such inquiry

should not enter a

such plea
as

a plea

without making

shall satisfy

it

that

there is a factual basis for the plea.

-5-

of

plea")

inconsistent with

the rudimentary

demands of

fair procedure."2

United States v. Ferguson, 60 F.3d 1, 2 (1st Cir. 1995) (internal

_____________
________

quotations

omitted); see Fed. R. Crim. P. 32(e); see also former

___
________

Fed. R. Crim.

P. 32(d), comment.

(advisory committee's note

to

1983 amendments to predecessor of

Rule 32(e)); United States

_____________

v.

Japa, 994
____

F.2d 899, 902

aside a plea

(1st Cir. 1993)

(stating that,

post-sentencing, the reviewing

to set

court must find

"a

fundamental defect or a miscarriage of justice").

Carrington's appeal

Carrington's

does not meet this

high standard.

sole argument under Rule 11(f) is that there was no

evidence that the vehicles

stolen before they

reject Carrington's

involved in Counts I through

were placed into the stream

challenge for

IV were

of commerce.

two reasons, either

We

of which

would suffice independently to justify our conclusion.

have

previously rejected

a similar

2314, Carrington's statute of

Puerta, 38
______

here, the

been stolen

argument under 18

conviction.

F.3d 34, 41 (1st Cir. 1994).

defendant in

or taken

(quoting brief

Puerta argued
______

by fraud

of defendant).

First, we

U.S.C.

See United States v.

___ ______________

Much as Carrington does

that "'no

[property] had

time of

transfer.'" Id.
___

at the

Paraphrasing that argument

as a

____________________

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
______________
_________________
(1st Cir.

1995), cert. denied,

_____________

(1996), as previous cases

harmless error standard.

__ U.S.

__,

F.3d 1215, 1219

116 S.

Ct.

1343

have held direct appellants only

to a

Id.; see, e.g., United States v. Parra___ ___ ____ _____________

______

Iba ez,
______

936 F.2d

588, 598

& n.24

(1st Cir.

1991).

however, that although we follow the more stringent

out

in Ferguson and Japa,

________
____

even were we

We note,

standard set

to apply harmless error

review, Carrington's argument would fail.

-6-

claim "that

when transferred

stolen," id. (emphasis

___

"see

the

[property] had

in original), we concluded

not yet
___

been

that we could

no reason why the fraudulent taking required any more than"

acceptance of

property,

the

property, misrepresentations,

and "the requisite

scienter."

Id.
___

access to

the

Similarly, given

that Carrington does not argue that there was no factual basis to

find that he accepted

access

the vehicles, made misrepresentations, had

to the vehicles, and had the requisite intent -- "knowing

the [vehicles] to have been stolen, converted or taken by fraud,"

__

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

transporting or causing to be transported vehicles

to

be

statute

"stolen, converted

itself

is phrased

and taken
___

in

the

by

fraud."

counts

of

which he knew

However, the

disjunctive, punishing

the

transport of goods

known to

fraud," see 18 U.S.C.

___

brief.

be "stolen, converted

or taken
__

by

2314, as Carrington himself quotes in his

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.

were correct with respect

he would

other

to the "stolen" prong of

still need to persuade

two prongs.

But even if he

However,

the statute,

us with respect to

Carrington does not

both of the

contend that a

factual basis is absent to support the proposition that he caused

the goods to be transported and that

-7-

he took them by fraud -- an

alternative basis for criminal

basis included

in the

Even

if Carrington were

since

the presentence

liability under section 2314, and

information to

to so argue,

which he

it would

report established

a more

pled guilty.

not profit him,

than adequate

basis for the plea under the "taken by fraud" theory.

See United
___ ______

States v. Ferguson, 60 F.3d 1, 4 (1st Cir. 1995) (recognizing PSR

______
________

as adequate factual basis for plea

plea withdrawal).

As a

result, we

when considering propriety of

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

Carrington

the

argument

also raised

an

with

ineffective

respect

to

assistance

challenge for the first time at oral argument.

his

of

plea,

counsel

Ordinarily, we do

not address ineffective assistance of counsel arguments on direct

appeal.

1993)

See United States

___ _____________

(holding that

specific claims

v. Mala, 7 F.3d 1058, 1063

____

absent

extraordinary circumstances,

asserting ineffective assistance

fact-

of counsel are

not cognizable on direct

appeal), cert. denied, 114 S.

____________

(1994).

exception.

This case is no

(1st Cir.

Ct. 1839

Carrington argues that

his

trial counsel improperly led him to plead guilty.

charges depend

by

the

on evidentiary matters which

district court

Accordingly,

in the

first

Carrington's claim of

However, these

are best considered

instance.

Id.
___

at 1063.

inadequate assistance is not

properly before us, and so we do not consider it.

-8-

B.
B.

The value and loss determinations in Counts I through IV

The value and loss determinations in Counts I through IV

Carrington disputes

the values assigned by

that is, the values represented by the prices

the

the PSR --

he promised to pay

dealers he contacted -- and adopted by the district court in

sentencing, to the

through IV,

four cars that were the subjects

respectively.

He

contends that the

should

instead have valued the car in

amount

of money he

Counts

II through

wholesale

obtained in the

IV

the

court

value of the vehicles.

only reference to valuation in

of Counts I

district court

Count I at $30,000 -- the

sale of the car

should

have

used

-- and for

the

fair

Carrington points out that the

the record, apart from references

to "an agreed upon price," is in the FBI agent's affidavit of the

car

dealer's statements.

personal

knowledge as to

He

adds that the

the value of

only information on

any car

was the $30,000

willingly

paid

Carrington

by

notes

car

dealer

that while

the

for

the

Guidelines

value" as the measure of the value of stolen

is

not absolute,

ascertain

and in fact,

or inadequate

alternative

to

car

the

Count

use "fair

I.

market

property, that rule

if market value

measure

in

is difficult to

harm to

methods of valuation may be used.

the

victim,

U.S.S.G.

2B1.1,

district

court's

n.2.

This

interpretation

Thereafter,

it

court

of

reviews

the

normally

loss

the

provisions

of

reviews

findings only for clear error.

__ U.S.

de
novo
_________

district

the

Guidelines.

court's

factual

See, e.g., United States v. Koon,

___ ____ _____________
____

__, 116 S. Ct. 2035 (1996); United States v. Skrodzki, 9

_____________
________

-9-

F.3d

fails

198, 202 (1st Cir. 1993).

But where, as here, a defendant

to object to the court's loss computation -- as Carrington

concedes in his brief -- review is for plain error.

Carrington's

support,

is that

vehicles involved

order

to induce

essential

the prices

in Counts

contention,

he negotiated

II through

the dealers' agreement.

IV

without

record

in relation

to the

were overstated

But in

in

fact, the PSR

suggests

an

that Carrington negotiated the price of each vehicle in

arm's

(n.2),

length transaction.

product's

fair

Under

market

value

appropriate value of the victim's loss.

particularly in

light of

section 2B1.1,

is

comment.

ordinarily

the

Here, it was reasonable,

the bargaining between

Carrington and

the dealers, for the district court to calculate the market value

of each vehicle to

dealership.

be the price Carrington negotiated

with each

See, e.g., United States v. Warshawsky, 20 F.3d 204,

___ ____ _____________
__________

213 (6th Cir. 1994) (applying market value in a section 2314 case

to mean the price a

the time

willing buyer would pay a willing

and place the

property was taken).

determined with precision, and

reasonably reliable information.

Loss need

in fact may be inferred

See,
___

seller at

not be

from any

e.g., Skrodzki, 9 F.3d at

____ ________

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

engaged in retail sales of automobiles.

obtained

the cars

were

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.

-10-

C.
C.

Carrington's argument that Counts V and VI

Carrington's argument that Counts V and VI
should have been sentenced as attempts
should have been sentenced as attempts

Carrington

concluding

a total

contends that the sentencing court erred in

that Counts V and VI were both completed crimes, with

intended loss of $583,000.

actual loss counsels

should be classed

See
___

U.S.S.G.

an

attempt).

for the

them.

proposition that Counts

as mere attempts, pursuant

the lack of

V and

VI

to the Guidelines.

2X1.1(b)(1) (mandating a decrease by 3 levels for

Thus,

he posits,

counts should be lower than

to

He argues that

the

offense levels

those the district court

for those

attributed

We review the district court's legal ruling concerning

the scope of section 2X1.1 de novo, but uphold the application of

_______

section 2X1.1

to the

facts of Carrington's

offense conduct

so

long

as

it

is

not

Chapdelaine, 989 F.2d

___________

error

clearly

erroneous.

28, 34 (1st

with respect to section

United States
______________

Cir. 1993) (discussing

2X1.1), cert. denied,

____________

v.

clear

114 S. Ct.

696 (1994).

In

opinion

1995).

to

in

making

this

argument,

United States
_____________

Carrington

v. Egemonye,
________

62

confronts

F.3d 425

section

2F1.1 based

defendant

section

(1st Cir.

In that case, the district court calculated loss pursuant

on the

total

aggregate limits

credit cards that the defendant wrongfully obtained.

The

our

2X1.1

argued

that

because

regarding "partially

section

completed

2F1.1

of the

Id. at 429.
___

references

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

-11-

by

arrest, the

district court

erred in

denying him

the lower

offenselevel attendant to anonly "partially completed"crime.

We

defendant's

rejected the

conduct in

application of

Egemonye.
________

section 2X1.1

Id. at 430.
___

We

Id.
___

to the

noted that

there were

viewed

two competing views

as offering

of section

a reduction

harm; alternatively,

2X1.1.

for potential

its provisions

It

could be

versus completed

could be read

literally to

direct its application only where the defendant has not completed

the actions necessary to the substantive offense.

Id.
___

with the latter view, we stated that

[t]here

would

be nothing

deciding that actual

irrational in

harm is worse

than

intended harm and providing a three-level

discount

wherever

completed
intended

the

sentence

for

offense is measured in part by

harm.

But

this

is

not

in

general the philosophy of the guidelines;

if

it were,

intent

to

possession

of

distribute would

less harshly

than the actual

drugs

with

be punished
sale of an

equivalent amount. . . .
[T]he cross-references

in section 2F1.1

are easily explained; they do

discount,

or

the

discount, where the

invoke the

possibility

of

underlying crime

a
is

In siding

merely an
Here, by

attempt or

conspiracy. .

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.

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

from

his case.

defendant in

sure, Carrington

In his

Egemonye
________

had

brief,

tries to distinguish

Carrington contends

the credit

-12-

cards

and

the

Egemonye
________

that

the

present

ability to turn the cards into cash, while, with respect to Count

V,

Carrington would

drafts even

never

still have

had to

had he received them

actively negotiate

from IBT.

He

the

asserts that he

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

Carrington also does not dispute

those drafts.

that he did in fact

wire communication pursuant to a scheme to defraud.

Carrington had

completed the

offense,

fraud, just

wire

necessary elements of

as

Furthermore,

the defendant

in

transmit a

As a result,

the charged

Egemonye had.
________

Thus, we conclude that Egemonye is squarely on point.

________

In

applicable

light

as

under Counts

wire

of Egemonye,
________

section

Carrington contends.

2X1.1

is simply

Carrington was

not

convicted

V and VI of wire fraud, not attempted wire fraud or

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

U.S.C.

the crime

1343.

See 18
___

Here, Carrington completed the necessary acts for

of wire fraud

draft sales form

of executing the scheme.

in Count

V when he

faxed thirty

bank

requests to IBT in furtherance of his scheme to

obtain $150,000, and

in Count VI

transaction requests

to

IBT in

when he

sent by modem

furtherance

of his

eighty

scheme

to

obtain $583,443.50.

completed

conclude

Because

section 2X1.1

substantive offenses,

Egemonye,
________

does

62 F.2d

not apply

to

at 430,

we

that the district court correctly denied a reduction in

-13-

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

its loss

calculation in sentencing him for

in Counts V and VI.

loss

that the

district

court attributed

and 2B1.1,

should not

offenses.

"),

have found that Counts

comment.

discussed

in

(n.7)

of the

was

an

the offense

for the lack of

Citing to Guidelines sections

Carrington maintains

See U.S.S.G.
___

Count VI

part, to make up

success of the conduct in Count V.

2F1.1

to

loss in Count V, since

VI was an effort, in

erred in

the offenses charged

Specifically, he contends that part

effective double counting of

in Count

that the district court

that the

V and VI

district court

were two individual

2F1.1 ("Fraud and Deceit; Forgery . . .

(directing

the Commentary

to

that "[v]aluation

2B1.1")

of

and 2B1.1

loss

is

("Theft,

Embezzlement . . . "), comment. (n.2) (stating that "[i]n certain

cases,

an offense may involve a series of transactions without a

corresponding increase

in

these

fact merely

Counts were

in

loss"). Instead,

parts

argues

of a

Carrington,

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.

___ ____ ______________

Prendergast, 979 F.2d 1289, 1291-92

___________

(8th Cir. 1992) (discussing

loss

calculation under U.S.S.G.

with

respect to

uncharged

2B1.1

conduct, that

-14-

and 2F1.1 and stating,

the district

court's

determination

of

determination

subject

common

to

scheme

or

review under

plan

the

"is

clearly

factual

erroneous

standard"); cf. United States v. Mak, 926 F.2d 112, 115 (1st Cir.
___ _____________
___

1991) (reviewing

district

scheme

of drug

or plan"

court's determination

offenses for

of

clear error).

"common

However,

because Carrington failed to raise this issue below, we review it

only for

plain error.

(1st Cir. 1996);

See United States v.

___ _____________

Black, 78 F.3d 1, 5
_____

United States v. Atwood, 963 F.2d

_____________
______

476, 477 n.2

(1st Cir. 1992).

preserved,

While

pointing in

transcript of the

Carrington argues that

his

reply brief

proceedings that

to

this issue

a section

shows that Counts

was

of

the

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;

2F1.1

there was

and 2B1.1,

no oral

argument with respect

or whether Counts

V and

to sections

VI formed

part of a

We fail to find plain error for two reasons.

First, we

common scheme or plan.

think

Carrington's reliance

misplaced.

80

on commentary

Carrington essentially

victims of the fraud

to section

2B1.1 is

contends that because, of the

underlying Count VI,

thirty were among

the victims in

Count V, and

same

from these

$150,000

therefore improperly double

the loss from

thirty

victims,

counted this

seeking to get

the district

the

court

amount in

calculating

Carrington

emphasizes

to section 2B1.1, which specifies

that "[i]n

Count VI

Application Note 2

because he was

as $583,443.50.

-15-

certain cases, an

offense may involve

a series of

transactions

without a

comment.

corresponding increase

(n.2).

next sentence

defendant

loss

would

transactions

loss.

in

2B1.1,

from a bank

case where "a

and conceal[s] his

shifting this amount from one account to another

transactions over a six-month period."

remain

did not

at

$5,000

increase the

because

risk of

the

Id.
___

subsequent

actual or

intended

By contrast, there is no dispute that Carrington's actions

Count

VI increased

overlapping victims.

sentencing

V], no

as an example the

[] embezzle[s] $5,000

in a series of nine

The

U.S.S.G.

However, as the Government points out, the very

in Note Two uses

embezzlement by

in loss."

the

Indeed,

risk of

potential loss

to

the 30

Carrington's own counsel argued at

that "[t]here was no follow-up [to the fraud in Count

pursuit

of it,

it

was

abandoned and

then

second,

separate fraud was commenced."

Second,

$150,000,

as

even if the loss

Carrington seeks,

Counts I through VI would

the

level

Guidelines, would

increase to

offense level of

require a

the offense,

aggregate

total loss

ten-level rather

resulting in

21 rather than 22.

range under

the

Because his current sentence

could not be found

the

were reduced by

for

be approximately $789,000 which, under

Because Carrington falls within

sentencing

on Count VI

than eleven-

a final

See U.S.S.G.
___

adjusted

2F1.1(b)(1).

Criminal History Category I, his

Guidelines would

be 41-51

months.

falls within this range, any

to affect his "substantial rights,"

could not amount to plain error.

-16-

error

and thus

E.
E.

Carrington's requested "acceptance of responsibility" credit

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

matter,

applies.

pursuant to

U.S.S.G.

3E1.1.

As

a threshold

we must confront the question of what standard of review

Carrington

interpretive

mistake

argues

that the

regarding the

district

meaning

and

court made

an

scope of

its

factfinding;

because

this

purported

mistake

is

inextricably

intertwined with its factfinding, he contends that de novo review

_______

is

warranted.

recommended a

Carrington

three-level

points

out

reduction for

that

timely

the

government

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

any

of

[office] other

significance is

than the

referred

to

by [the]

subsequent offense" committed

probation

while he

was on pretrial release.

While Carrington claims that his argument implicates

mixed error that requires de novo review for his entire argument,
_______

we

disagree.

criminal

The

propriety of

conduct during

the

district court's

pretrial release

acceptance of responsibility credit --

application

38 F.3d

of this

1255, 1263

denial of

as a matter of

guideline

(1st Cir.

legal conclusion

-17-

of

to justify

interpretation -- is subject to de novo review.

_______

Talladino,
_________

use

United States v.
_____________

1994).

to the

However, the

facts surrounding

Carrington's

offense

is

United States v. Boots,

_____________
_____

States
______

subject

to review

for

clear

error.

80 F.3d 580, 594 (1st Cir. 1996); United

______

v. Luciano-Mosquera, 63 F.3d 1142,

________________

1158 (1st Cir. 1995).

We cannot accept the proposition that the district court erred as

matter

of

law

by

denying

responsibility credit based on

Counts

specify

and VI)

that

while on

court,

in

Carrington

acceptance

of

his criminal conduct (included in

pretrial

its

release.

acceptance

of

The Guidelines

responsibility

determination, can consider whether the defendant has voluntarily

terminated all criminal conduct.

(n.1).

release,

Where the defendant

a district

defendant has

3E1.1, comment.

commits additional crimes

court may

not voluntarily

See U.S.S.G.
___

while on

view that

as evidence

that the

terminated

all criminal

conduct

and, accordingly, decline to award a reduction

responsibility on

936

that ground alone.

F.2d 599, 600 (1st Cir. 1991).

defendant,

United States
_____________

v. Morrison,
________

v. Reed, 951
____

court

did

not

v. O'Neil,
______

This is true even where the

Id. at 600-01; see

___
___

983 F.2d 730

F.2d 97,

denied, 503 U.S. 996 (1992).

______

district

United States
_____________

like Carrington, has pled guilty.

also United States

____ _____________

for acceptance of

(6th Cir.

99 (6th Cir.

1991), cert.
_____

As a result, we conclude

commit

legal

error

in

1993);

that the

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

of responsibility.

for acceptance

See,
___

e.g.,
____

United States v. Burns,

_____________
_____

925 F.2d 18, 20 (1st

Cir. 1991); United

______

-18-

States
______

v. Royer,
_____

895 F.2d

credibility

and

whether

person

sentencing

28,

demeanor play

judge has

is

29 (1st

genuinely

the

Cir. 1990).

crucial

role in

contrite,

unique opportunity

and

"Because

determining

because

the

of observing

the

defendant

live

. . . and evaluating acceptance of responsibility in a

context, the finding of the sentencing court is entitled to

great respect," and "should not be disturbed unless it is without

foundation."

In

his brief,

Burns, 925 F.2d at

_____

Carrington argues

additional offenses versus

taken to

admit guilt and

20; Royer, 895 F.2d

_____

that, in

at 29-30.

its weighing

of his

the affirmative steps Carrington

accept responsibility for

has

his crimes,

the trial court ignored his remorse and "cho[se] instead to focus

solely on

point

the commission

enhancement

Carrington may

was

of a

new offense

assessed

without

(for which a

objection)."

three

While

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

_______

met

F.2d

his burden,

162,

see United States v.

___ ______________

167 (1st

Cir. 1991),

of

Uricoechea-Casallas, 946
___________________

showing that

the district

court's decision was "without foundation," see Burns, 925 F.2d at

___ _____

20.

Furthermore, in addition

district court

to his

also considered

additional offenses,

Carrington's decision

the

to remain

silent in open court, a factor the court was entitled to weigh in

determining

whether

responsibility.

he

demonstrated

an

acceptance

of

See United States v. Delgado, 36 F.3d 1229, 1236

___ _____________
_______

(1st Cir. 1994), cert. denied, 115 S. Ct. 1164

_____________

-19-

(1995).

Because

the

district court had sufficient foundation to do so, we affirm

its denial

of Carrington's

request for a

based on his acceptance of responsibility.

three-level reduction

-20-

III.
III.

As

a result

of

district court is affirmed.

CONCLUSION
CONCLUSION
__________

the foregoing,

the

judgment of

the

affirmed
________

-21-