Unpublished Disposition, 894 F.2d 1344 (9th Cir. 1990)

MEMORANDUM^** 

Defendant Dave Allen Jamison appeals from the sentence imposed upon him pursuant to the Sentencing Guidelines, which were promulgated pursuant to the Sentencing Reform Act of 1984, 18 U.S.C. §§ 3551-3625, 3673, 3742; 28 U.S.C. §§ 991-998. Jamison contends that he was improperly denied the two-point offense level credit for acceptance of responsibility. He also contends that the role of the Probation Office in his sentencing violates the separation of powers doctrine.

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

On October 3, 1988, defendant Dave Allen Jamison pleaded guilty to two counts of a four-count indictment for bank robbery. While out on bail awaiting sentencing, he committed additional robberies. On December 5, 1988, he pleaded guilty to an information filed the same date which charged him with two bank robberies which occurred on October 15 and 17, 1988. It was agreed that sentencing in both cases would be consolidated.

At sentencing, Jamison requested a two-point offense level credit under Sentencing Guideline Sec. 3E1.1 for acceptance of responsibility. Jamison based his request on his guilty pleas; on his acknowledgment at the time of his arrest, off the record, of all of his bank robberies; and on his agreement to provide the Government with the details of those offenses after he was sentenced. The district court denied the credit.

Factual determinations by the district court are to be accepted unless clearly erroneous. 18 U.S.C. § 3742(e). Application of the Sentencing Guidelines must be given due deference. Id. Application note 5 to Sentencing Guideline Sec. 3E1.1 indicates that our deference should be great.

Jamison attacks the denial of credit for acceptance of responsibility under Sentencing Guideline Sec. 3E1.1 for both sets of bank robberies. As to the robberies in the first case, Jamison contends that consideration of his subsequent conduct was improper. As to the offenses charged in the second case, Jamison alleges that the district court erred in finding that Jamison's assertion that he would provide the details of his crimes to the Government after sentencing was not a sufficient acceptance of responsibility.

First, Jamison attacks the consideration of his robberies on October 15 and 17 in the denial of credit as to the initial robberies. He relies upon United States v. Perez-Franco, 873 F.2d 455 (1st Cir. 1989), which held that a defendant need only accept responsibility for counts to which the defendant pleaded guilty or upon which he was convicted, as opposed to all counts charged or other criminal conduct not in the indictment. The Perez-Franco Court reasoned that to do otherwise might violate the fifth amendment privilege against self-incrimination. 873 F.2d at 459-64.

This case is distinguishable. Subsequent conduct of the same nature is involved. This conduct impugns the initial acceptance of responsibility, for, if that term is to have any effect, it must mean that the defendant recognized that his conduct was wrong. The purpose of credit is to reward those who withdraw from criminal careers. See United States v. Henry, 883 F.2d 1010 (11th Cir. 1989) (upholding credit against constitutional attacks based on fifth and sixth amendments). While Jamison claimed he had done that, he went right out and committed the same acts after his first plea. See Sentence Guideline Sec. 3E1.1, application note 1(a) (one consideration is whether defendant voluntarily withdrew from criminal conduct). In addition, Jamison pleaded guilty to the subsequent conduct. Therefore, the constitutional right against self-incrimination is not implicated. Under any standard, the district court's finding of no acceptance of responsibility must be sustained.

Second, Jamison attacks the district court's finding that he did not accept responsibility for the second set of charges, because his agreement to discuss his case was "untimely" for purposes of the credit. We affirm the district court's refusal to consider this agreement in its determination. If the district court based acceptance of responsibility upon an unperformed obligation to reveal prior crimes, then the court would base its determination on mere promises about future conduct. The court was justified in disregarding what Jamison might do, when, in fact, Jamison may have provided full or no disclosure. The district court was entitled to look upon Jamison's representations about the future with a jaded eye.

The long and the short of it is that the issue of acceptance of responsibility is one uniquely within the discretion of the district court. See Application Note 5 to Sentencing Guideline Sec. 3E1.1. That court was not required to determine that a person who commits a second string of offenses while out on bail awaiting sentencing for the first string has accepted his responsibility, even if he promised to tell all after sentencing. Indeed, it would be rather surprising if the district court did grant the reduction under the circumstances of this case.

Jamison also attacks his sentence on the ground that the role played by the Probation Office, a member of the judicial branch, is a violation of separation of powers. This issue was also raised by the defendant in United States v. Belgard, No. 88-3173, slip op. ---- (9th Cir. Jan. 25, 1990). For the reasons stated in this court's opinion in Belgard, this argument is rejected.

AFFIRMED.