United States of America, Plaintiff-appellee, v. Billy Jerome Miller, Defendant-appellant, 65 F.3d 169 (6th Cir. 1995)

Miller concedes that his counsel sent him two undeliverable letters attempting to notify him of the trial date. Appellant's Brief at 8. Although he contends that he was not aware of the trial date because he did not receive the letters, one of the conditions of his release was that he would not change his address or move without permission of the court. Miller has offered no reason why counsel's letters could not be delivered,¹  and the clear inference to be drawn from this is that he was not residing where he said he was. Given the circumstantial evidence, consisting of defense counsel's inability to contact Miller at his stated address, combined with Miller's failure to explain his whereabouts, the district court did not clearly err in finding that Miller's conduct amounted to willful obstruction of justice. Miller's conduct required his counsel to seek a continuance and delayed the trial. The failure to comply with conditions of release justifies an increase under Sec. 3C1.1 where it results in a delay of the proceedings. See United States v. Perry, 908 F.2d 56, 59 (6th Cir.) (defendant's failure to report for scheduled interview with probation officer and flight for approximately one year, which delayed sentencing, justified increase for obstruction of justice), cert. denied, 498 U.S. 1002 (1990); see also United States v. Defeo, 36 F.3d 272, 276-77 (2d Cir. 1994) (defendant's four-month failure to report to pretrial services warranted increase for obstruction of justice). "When the disposition of the charges cannot proceed until the defendant's presence is secured, and when he must be brought to court under arrest, as transpired in this case, there is obstruction of justice." United States v. Teta, 918 F.2d 1329, 1335 (7th Cir. 1990). Under the circumstances, the district court did not err in applying the enhancement.

III

Miller argues that the district court erred in denying him a two-level reduction for acceptance of responsibility pursuant to U.S.S.G. Sec. 3E1.1. As with other guideline provisions which result in a sentence reduction, when a defendant seeks to establish facts which would lead to a reduction for acceptance of responsibility, he bears the burden of proving those facts by a preponderance of the evidence. United States v. Rodriquez, 896 F.2d 1031, 1032 (6th Cir. 1990). We review the determination of a defendant's entitlement to a reduction for acceptance of responsibility pursuant to U.S.S.G. Sec. 3E1.1 under the "clearly erroneous" standard. United States v. Tisdale, 952 F.2d 934, 940 (6th Cir. 1992).

Miller basically argues that the district court erred in failing to credit him with acceptance of responsibility because he acknowledged his involvement in the offense during his guilty plea and during his interview with the probation officer. However, as we have already concluded, the district court did not clearly err in finding that Miller obstructed justice. " [I]t is rare that a defendant should be granted a reduction in offense level for acceptance of responsibility when the court has deemed it appropriate to increase [his] offense level for obstruction of justice." Defeo, 36 F.3d at 277 (citing U.S.S.G. Sec. 3E1.1, comment. (n. 4)). A guilty plea alone does not merit, as of right, a reduction for acceptance of responsibility. United States v. Guarin, 898 F.2d 1120, 1122 (6th Cir. 1990). Miller failed to substantiate his claim for a reduction, and the district court therefore did not clearly err in denying one.

IV

Miller argues that the district court erred in assessing, for sentencing purposes, the amount of the loss caused by his conduct. The district court increased Miller's offense level by 5 levels, based on U.S.S.G. Sec. 2B1.1(b) (1) (F), providing for such an increase where the amount of the loss exceeds $10,000 but does not exceed $20,000. We review the district court's findings of fact in this regard under the clearly erroneous standard, giving deference to the district court's application of the guidelines to the facts. See United States v. Wilson, 954 F.2d 374, 376 (6th Cir. 1992).

Miller argues that he was "directly linked" to only seven of the many stolen checks in this case, these seven having a restitution value of $2,788.²  However, the presentence report, which the district court adopted, indicates that Miller and co-defendant William Caruthers were the individuals primarily responsible for stealing the checks. The report further indicates that Miller received a portion of the proceeds from all the checks because he drove the car used to commit the thefts. Finally, the presentence report indicates that during the scheme, checks totalling $17,456.43 were stolen from the United States mail and fraudulently cashed.

U.S.S.G. Sec. 1B1.3(a) (1) (B) provides that specific offense characteristics shall be determined, in the case of jointly undertaken criminal activity, on the basis of "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity." In this case, we deem it of no consequence that Miller could not be "directly linked" to the negotiation of all of the checks. Miller drove the car used in the thefts and received a share of the proceeds. These facts are sufficient to warrant the five-level increase which the district court applied, subjecting Miller to responsibility for the full amount of the loss.³ 

V

Miller argues that the district court should have departed downward from the guideline range sentence because some of his criminal history points arise from driver's license offenses, which he deems to be minor. However, "a district court's refusal to depart downward is simply not appealable." United States v. Moss, 9 F.3d 543, 554 (6th Cir. 1993) (citations omitted). Accordingly, we decline to review this issue.

AFFIRMED.