United States of America, Plaintiff-appellee, v. Rodney Ray Wagner, Defendant-appellant, 967 F.2d 596 (9th Cir. 1992)

MEMORANDUM^** 

Rodney Ray Wagner appeals from his sentence, imposed following a guilty plea, for armed bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d) and use of a firearm during a felony in violation of 18 U.S.C. § 924(c). Wagner contends that the district court erred by failing to adjust his offense level downward for acceptance of responsibility under the United States Sentencing Guidelines. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

We review de novo the district court's application of the Sentencing Guidelines. United States v. Hall, 952 F.2d 1170, 1172 (9th Cir. 1991). The district court's decision that a defendant has not accepted responsibility for his actions is a factual finding reviewed for clear error. United States v. Ramos, 923 F.2d 1346, 1360 (9th Cir. 1991). The district court is free to consider both pre-and post-guilty plea conduct to determine whether a defendant accepted responsibility for his actions. See United States v. Watt, 910 F.2d 587, 593 (9th Cir. 1990). Under the version of the Guidelines applicable here, a finding that the defendant obstructed justice will preclude an adjustment for acceptance of responsibility except in extraordinary circumstances. See U.S.S.G. § 3E1.1, comment. (n. 4); United States v. Lato, 934 F.2d 1080, 1083 (9th Cir.), cert. denied, 112 S. Ct. 271 (1991).

Here, Wagner participated in armed bank robberies on July 14, 20, and 25, 1990. He was arrested following the July 14 robbery, but denied his participation and was released. Following his release, he committed two additional robberies. When he was arrested on July 27, 1990, he denied having used a real gun in any of the three robberies.

Wagner was charged in three counts of armed bank robbery and three counts of use of a firearm during commission of a felony. Pursuant to the plea agreement, he pleaded guilty to all three armed robberies and to using an actual firearm during the July 14 robbery. The firearm charges with respect to the latter two robberies were dismissed. Wagner has continued to deny using real weapons on July 20 and 25.

Wagner contends that the district court impermissibly required him to accept responsibility for conduct underlying the dismissed counts. Alternatively, Wagner contends that the finding that he had not accepted responsibility was based upon facts not supported by the record. These contentions lack merit.

The district court found that Wagner had used a gun during the July 14 robbery, and that he had initially denied that any of the robberies had involved a real gun. On this basis, it found that he had obstructed justice.¹  The district court also implicitly found that Wagner's mischaracterization of the July 14 robbery argued against his circumstances being "extraordinary" enough to warrant the downward departure under section 3E1.1.² 

Wagner does not contest the finding that he did not admit having used a real gun in the first robbery until he pleaded guilty. Wagner argues that because the latter two firearm counts were dismissed, he was not obliged to admit that he had used a real gun except as to the first robbery, and that his guilty plea to the first firearm count constituted an acceptance of responsibility as to that gun. Nonetheless, the district court considered Wagner's pre-plea behavior, including his original false statements with respect to the gun used in the first robbery, to find that he had not accepted responsibility. This finding was not clearly erroneous. See Watt, 910 F.2d at 593.

The district court relied on the same facts to find that Wagner had obstructed justice, and Wagner does not contest this upward adjustment on appeal. Given Wagner's acceptance of the upward adjustment, we see no clear error in the district court's implied finding that Wagner's was not the "extraordinary" case which would merit a section 3E1.1 downward adjustment despite his obstruction of justice. See U.S.S.G. § 3E1.1, comment. (n. 4); Lato, 934 F.2d at 1083.

Wagner also contends that his sentence should be vacated because the district court may have misunderstood its authority to grant the acceptance of responsibility adjustment even though Wagner had also received an upward adjustment for obstruction of justice. This contention lacks merit. The district court expressly stated that it could grant the adjustment under section 3E1.1 if there were an "extraordinary circumstance" demonstrating Wagner's acceptance of responsibility. Despite the government's subsequent apparent misstatement of the rule, we see no reason not to credit the district court's correct statement of its understanding of the law. See United States v. Garcia-Garcia, 927 F.2d 489, 491 (9th Cir. 1991) (district court is presumed to know the law absent evidence to the contrary).

AFFIRMED.