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UNITED STATES v. ANDERSON

January 27, 1997

UNITED STATES OF AMERICA, Plaintiff,
v.
KEVIN ANDERSON, Defendant.



The opinion of the court was delivered by: WILLIAMS

 Defendant Kevin Anderson objects to two parts of the Presentence Investigation Report and moves for a downward departure in his criminal history category. For reasons set forth below, the court denies his objections but grants his motion for a downward departure.

 Background

 In August 1996, Anderson robbed a bank in Bloomington. Two days later he attempted to rob a bank in Peoria. Shortly thereafter he was arrested. In each of these two bank robberies (as in his prior bank robbery), he did not use or threaten to use a weapon; he simply handed a note to a teller demanding cash and urging the teller not to panic. (Presentence Investigation Report ("PSR") PP 6-8.) In December 1996, Anderson pleaded guilty to robbing the bank in Bloomington and attempting to rob the bank in Peoria.

 Prior to this string of bank robberies, Anderson had two criminal convictions. In 1993, he pleaded guilty to driving under the influence ("DUI"). Apparently, nobody was hurt as a result of this incident. He received a sentence of 30 days in jail, of which 27 were suspended. Because Anderson failed to complete his Jail Alternate Program, a warrant issued for his arrest. (PSR P 57.)

 In 1995, Anderson pleaded guilty to domestic battery after he pushed his wife and hit her with a closed fist in the chest and forehead. There is no indication that Anderson's wife was hospitalized or that she suffered permanent injury. Anderson received a sentence of 12 months conditional discharge. A petition to revoke Anderson's conditional discharge has been filed because Anderson failed to complete domestic violence counselling. However, this failure appears to stem from the fact that Anderson was in federal custody. (PSR P 58.)

 Analysis

 Anderson objects to the PSR on two grounds and moves for a downward departure in his criminal history category.

 I. ACCEPTANCE OF RESPONSIBILITY

 First, Anderson argues that he is entitled to a two-level reduction for acceptance of responsibility because he has pleaded guilty to all three crimes and cooperated fully with authorities. The government responds that Anderson is not entitled to a two-level reduction for acceptance of responsibility because he violated the conditions of his release on the first bank robbery by robbing one bank and attempting to rob another.

 Section 3E1.1(a) of the United States Sentencing Guidelines ("U.S.S.G." or "the Sentencing Guidelines" or "the Guidelines") allows a two-level decrease for a defendant who "clearly demonstrates acceptance of responsibility for his offense." According to Application Note I, the court may consider, among other things, whether the defendant (a) truthfully admitted the conduct comprising the offense, (b) voluntarily terminated criminal conduct, (c) voluntarily surrendered after committing the offense, (g) entered into drug treatment, or (h) accepted responsibility in a timely manner. Application Note 3 states:

 
Entry of a plea of guilty prior to the commencement of trial combined with truthfully admitting the conduct comprising the offense of conviction . . . will constitute significant evidence of acceptance of responsibility for the purposes of subsection (a). However, this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility.

 It is inconsistent with acceptance of responsibility for a defendant to violate the conditions of his release on bond by using drugs or committing crimes. United States v. ...


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