Unpublished Disposition, 928 F.2d 1138 (9th Cir. 1991)

MEMORANDUM^** 

Aaron Christopher Strickland appeals his sentence following his guilty plea to wire fraud, in violation of 18 U.S.C. § 1343. Strickland contends that the district court erred by refusing to award him a two point downward adjustment in his base offense level for acceptance of responsibility under the United States Sentencing Guidelines (Guidelines). We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

Whether a defendant has accepted responsibility for his crime is a factual determination subject to the clearly erroneous standard of review. United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir. 1990). The district court's determination will not be disturbed " [']unless it is without foundation.' " United States v. Smith, 905 F.2d 1296, 1301 (9th Cir. 1990) (emphasis in original) (quoting U.S.S.G. Sec. 3E1.1, comment. n. 5).¹

U.S.S.G. Sec. 3E1.1 provides for downward adjustment in the base offense level if a defendant "clearly demonstrates a recognition and affirmative acceptance of personal responsibility" for his criminal conduct. The party seeking to alter the base offense level bears the burden of making the necessary showing by a preponderance of the evidence. United States v. Howard, 894 F.2d 1085, 1090 (9th Cir. 1990). Continued criminal activity detracts from the credibility of expression of remorse for the offense of conviction and supports the denial of a downward adjustment for acceptance of responsibility. United States v. Cooper, 912 F.2d 344, 346-348 (9th Cir. 1990). A defendant who accepts responsibility for his choices, but is in a state of denial with regard to the reasons for that involvement, is not entitled to a downward adjustment for acceptance of responsibility. See United States v. Corley, 909 F.2d 359, 362 (9th Cir. 1990) (upholding district court's denial of downward adjustment based on probation office's conclusion that the defendant was "in a state of denial as to some of the reasons for his involvement [in the crime], and although he accepts responsibility for his choices, he tends to minimize his part in the offense").

Here, the district court knew that Strickland had attempted to perpetrate another financial scheme while he was on pretrial release to a halfway house for the offense of conviction. Additionally, the district court had before it a psychiatric evaluation which concluded that Strickland was unable to admit "that the lies to the probation officer and to [defense counsel] were in fact inappropriate, destructive, etc."

Therefore, the district court did not clearly err by denying Strickland a two point downward adjustment for acceptance of responsibility because Strickland had persisted in his illegal activities after his arrest for the offense of conviction and was in a state of denial as to some of the reasons for his participation in the offense. See Cooper, 912 F.2d at 346-348; Corley, 909 F.2d at 362.

AFFIRMED.