Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 96 CR 349 James F. Holderman, Judge.
Before Bauer, Cudahy, and Flaum, Circuit Judges.
Defendant-appellant Michael Edward Aerts voluntarily turned himself in to the police and confessed to committing two bank robberies. At sentencing, Aerts asked the court to depart downward under section 5K2.16 of the United States Sentencing Commission Guidelines, which provides for a reduction in a defendant's sentence "[i]f the defendant voluntarily discloses to authorities the existence of, and accepts responsibility for, the offense prior to the discovery of such offense . . . ." United States Sentencing Commission, Guidelines Manual, sec. 5K2.16, p.s. (Nov. 1995). The district court denied this departure, explaining that this provision requires disclosure of the offense, not merely the disclosure of the criminal who committed the offense, and that the bank robberies in the instant case were not the type of concealed crime covered by this guideline. Because we conclude that the district court correctly interpreted section 5K2.16, we affirm appellant's sentence.
On April 27, 1996, after having lost his job due to alcoholism and having exhausted his unemployment benefits, Aerts robbed the LaSalle Bank on North Milwaukee Avenue in Chicago. Aerts, we are told, spent the $1,305.75 in proceeds on alcohol. One month later, homeless and destitute, he committed his second robbery, this time of the Irving Bank on Irving Park Road in Chicago. Divine intervention, according to Aerts, brought his crime spree to an end a week later. Finding himself in the neighborhood where he grew up, he decided to visit the parish church he attended as a boy. Aerts, overcome with guilt and a desire to reform himself, decided to turn himself in to the authorities. That evening, he approached a police officer and confessed to committing the robberies. He also presented the officer with a written demand note, which he had prepared in anticipation of robbing a third bank that very day.
Two separate Federal Bureau of Investigation ("FBI") investigations were underway at the time Aerts confessed to committing the robberies. A photo line-up had been conducted of a suspect who the FBI believed had committed the robberies. While a witness to the first robbery, who had viewed the line-up, did not select the FBI's suspect, he did identify another individual from the line-up as the bank robber.
After pleading guilty to two counts of bank robbery under 18 U.S.C. sec. 2113(a), Aerts was sentenced to 37 months of incarceration. As part of the plea agreement, the government agreed to a two-point reduction under section 3E1.1(a) for acceptance of responsibility and an extra one-point reduction under section 3E1.1(b) for Aerts' timeliness in pleading guilty. Aerts also filed a motion prior to sentencing requesting that the court depart downward on two additional grounds: (1) under section 5K2.0, based on his extraordinary acceptance of responsibility, *fn1 as reflected by his unusual remorse and his post-arrest rehabilitative efforts; and, (2) under section 5K2.16, based on his voluntary disclosure of his commission of the offense to law enforcement authorities. Both requests were denied.
As for the departure for extraordinary acceptance of responsibility, the district court explained at sentencing that it would not grant this departure because Aerts did not come forward until after he committed two robberies. The court informed Aerts, "[I]f God had come to you earlier--you said He came to you and spoke to you and gave you the answer-- had He come to you earlier, then at that point I believe that He would have been telling me that there should be a downward departure." Instead, the court selected a sentence at the lowest end of the guideline range. Aerts does not appeal this determination.
The district court also rejected Aerts' request for a departure under section 5K2.16. This guideline provides:
If the defendant voluntarily discloses to the authorities the existence of, and accepts responsibility for, the offense prior to the discovery of such offense, and if such offense was unlikely to have been discovered otherwise, a departure below the applicable guideline range for that offense may be warranted. For example, a downward departure under this section might be considered where a defendant, motivated by remorse, discloses an offense that otherwise would have remained undiscovered. U.S.S.G. sec. 5K2.16, p.s.
The district court ruled that this provision was inapplicable to Aerts' case because it applies to "the voluntary disclosure of the offense," not "the voluntary disclosure of the criminal who committed the offense." Aerts ...