Unpublished Disposition, 917 F.2d 29 (9th Cir. 1990)

MEMORANDUM^* 

Serrano appeals from his sentence following conviction by a jury of conspiracy to possess stolen mail and aiding and abetting possession of stolen mail and stolen treasury checks. Serrano argues the district court erred by (1) failing to adjust the sentence downward for acceptance of responsibility and (2) sentencing at the high end of the applicable guideline range for impermissible reasons.

* The probation officer recommended granting Serrano the two-point downward adjustment for acceptance of responsibility because Serrano "admitted to the basic facts with which he was charged" even though the probation officer felt Serrano had not been completely candid. The resulting sentencing range was from 27 to 33 months. The district court found the downward adjustment was not warranted, noting Serrano:

has never accepted responsibility for the crimes for which he was convicted by the jury. He, to this day, denies he was involved in the theft of the--actually the burglaries of two mail trucks in which over 55 thousand dollars worth of checks as well as hundreds of pieces of citizen and other mail [were] stolen.

... All he has accepted responsibility for is being found in custody [of the stolen items]. But [he has] not admitted stealing them, and he was found in possession of them, so that's not much of an admission.

Without the reduction for acceptance of responsibility, the sentencing range was 33 to 41 months. The district court sentenced Serrano to 41 months, stating:

The reason for the Court selecting the top of the guideline range is because ... there is a definite drug abuse problem. The Defendant needs to be separated to, once and for all, attempt to rid him of the drug addiction.

Secondly, the Court feels that the guidelines for this type of an offense are inappropriately low, and the Court recommends the Sentencing Commission take a look at the placement of this offense vis-a-vis its comparison with other similar crimes which carry higher guideline ranges.

Furthermore, the Defendant has a long prior record which takes him way over the points necessary to qualify as a level six offender which he, of course, is. The Court, taking all of these matters into consideration, has concluded that the Defendant's incarceration at the top of the guideline range is appropriate in this case.

II

Serrano argues the district court improperly denied a two point downward adjustment for acceptance of responsibility because he did not admit to the theft underlying the charges of conspiracy to possess and aiding and abetting possession of which he was convicted, citing the district court's statement that Serrano "has never accepted responsibility for the crimes for which he was convicted by the jury. He, to this day, denies he was involved in the theft ..."

Serrano points out that actual theft of the mail was only one of five overt acts allegedly committed pursuant to the conspiracy of which Serrano was found guilty, and since the jury was instructed it need reach a unanimous verdict on only one of these overt acts, the jury may not have found Serrano guilty of the theft. Serrano's point is technically correct, but beside the point. The sentencing judge presided over the three-day trial, and personally observed the witnesses as they testified. The trial judge's conclusion that Serrano participated in the theft is not clearly erroneous even though it was not essential to the jury's guilty verdict. See United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir. 1990). Nor is it significant that the theft was not an essential element of the conspiracy of which Serrano was convicted since it was in any event "related conduct." Sentencing Guidelines Sec. 3E1.1(a), Application Note 1(c).

III

Serrano argues the district court erred by using three impermissible factors to justify his sentence at the maximum end of the guideline range. This court does not have jurisdiction to review the district court's decision to sentence within the guideline range. United States v. Reed, No. 89-10284, slip op. 11515, 11519-21 (9th Cir. Sept. 18, 1990).

Affirmed.