United States v. Efosa Lyon Aimufua, 935 F.2d 1199, 11th Cir. (1991)

935 F.
2d 1199
UNITED STATES of America, Plaintiff-Appellee,

v.
Efosa Lyon AIMUFUA, Defendant-Appellant.
No. 90-8594
Non-Argument Calendar.
United States Court of Appeals,

Eleventh Circuit.
July 12, 1991.
Lynn Fant, Federal Defender Program, Inc., Atlanta, Ga., for defendantappellant.
Amy D. Levin, Asst. U.S. Atty., Atlanta, Ga., for appellee.
Appeal from the United States District Court for the Northern District of
Georgia.
Before KRAVITCH, HATCHETT and EDMONDSON, Circuit Judges.
PER CURIAM:
In this sentencing case, we hold that the district court's denial of a two-point
reduction for acceptance of responsibility and departure upward one level based
on the commission of the same offense does not amount to impermissible
double counting under the Sentencing Guidelines.
FACTS
2
In March, 1988, Efosa Lyon Aimufua (Aimufua) submitted an application for

temporary resident status to the Immigration and Naturalization Service (INS).
On the application, Aimufua stated that he had been employed from February,
1986, through June, 1986, as a field worker in Huntsville, Alabama, by Lurlee
Curry. Aimufua also submitted an affidavit signed by Curry and himself
confirming his employment from February to June, 1986.
In June, 1989, an INS special agent interviewed Lurlee Curry and Curry told
the agent that he could neither read nor write and that Aimufua had
misrepresented the purpose of the document bearing his signature. Curry then
signed a sworn affidavit stating that he never employed Aimufua between
February and June of 1986.
In August, 1989, a grand jury indicted Aimufua on two counts of making false
statements to the INS as a result of his application for temporary resident status
in violation of 8 U.S.C. Sec. 1160(b)(7)(A)(i). Between the time of his initial
appearance and his indictment, the court released Aimufua on $6,000 bond. In
September, 1989, Aimufua entered a plea of guilty to both counts of the
indictment. Prior to trial in November, 1989, South Carolina authorities arrested
Aimufua for bank fraud. Aimufua entered a guilty plea in the South Carolina
District Court, and the court postponed sentencing in the bank fraud case
pending sentencing in this immigration case.
Following receipt of the Pre-Sentence Investigation Report (PSI), the court

assessed Aimufua's base offense level as 8 with a criminal history category of
II, giving him a guideline range of four to ten months in prison.* In May, 1990,
the district court sentenced Aimufua to twelve months in prison. The district
court denied Aimufua's motion for a two-point reduction for acceptance of
responsibility under Sentencing Guideline Sec. 3E1.1 because Aimufua had
committed bank fraud while on bail for this offense. Additionally, the district
court departed upward two points under Sentencing Guideline Sec. 5K2.0
because Aimufua's offense level and criminal history did not account for the
bank fraud he committed while on bail.
Aimufua presents one issue on appeal: whether the district court erred in
denying him a two-point reduction for acceptance of responsibility and
departing upward one level based on his commission of a felony in South
Carolina while on bail.
DISCUSSION
7
The issue of double counting under U.S.S.G. Secs. 3E1.1 and 5K2.0 is one of
first impression in this circuit. Aimufua argues that the denial of a two-point
reduction for acceptance of responsibility and the upward departure by two
points under section 5K2.0 punished him twice for the bank fraud offense
committed while he was on bail. Additionally, Aimufua argues that the
sentence in this case necessarily increased his criminal history score, thereby
affecting his upcoming sentence on the bank fraud offense.
We review Aimufua's allegations of error under a de novo standard. See United

States v. Goolsby, 908 F.2d 861, 863 (11th Cir.1990) (quoting United States v.
Williams, 891 F.2d 212, 214 (9th Cir.1989)). This circuit has held that in those
circumstances where the Sentencing Commission intended to except an
otherwise applicable element from increasing a sentence, the Commission
expressly states its intent. See United States v. Goolsby, 908 F.2d at 863. Thus,
we conduct a two-part inquiry in examining Aimufua's claims: (1) whether the
Commission intended the result about which Aimufua complains; and (2)
assuming the Commission intended that result, whether it is permissible based
on the facts of this case. See United States v. Wyckoff, 918 F.2d 925, 927 (11th
Cir.1990).
Section 3E1.1, the provision governing acceptance of responsibility, permits a

two-point reduction "if the defendant clearly demonstrates a recognition and
affirmative acceptance of personal responsibility for his criminal conduct."
U.S.S.G. Sec. 3E1.1. The commentary to section 3E1.1 provides that in
determining whether a defendant qualifies for a two-point reduction for
acceptance of responsibility, the district court should consider, among other
things, whether the defendant terminated or withdrew from criminal conduct or
associations. U.S.S.G. Sec. 3E1.1, application note 1. The Sentencing
Commission ordinarily allows a denial of an acceptance of responsibility
reduction if the defendant's conduct amounts to obstruction of justice under
U.S.S.G. Sec. 3C1.1. See U.S.S.G. Sec. 3E1.1 application note 4. Thus, section
3E1.1 in its commentary permits the use of the same conduct to trigger two
separate guideline sections.
10
Furthermore, U.S.S.G. Sec. 5K2.0 allows the district court to "depart from the
guidelines even though the reason for departure is taken into consideration in
the guidelines (e.g. as a specific offense characteristic or other adjustment)."
Thus, the Sentencing Guidelines recognized the potential for double counting
in certain cases involving both section 3E1.1 and section 5K2.0. The guidelines
list no specific rule to prohibit such double counting. See United States v.
Shaw, 883 F.2d 10, 13 (5th Cir.1989).
11
Moreover, both sections 3E1.1 and 5K2.0 permit such double counting because
each section concerns conceptually separate notions relating to sentencing. See
United States v. Goolsby, 908 F.2d at 861. Specifically, section 3E1.1 operates
to ameliorate a sentence for a defendant who has shown sincere remorse for his
crime while an upward departure from the guidelines under section 5K2.0
enhances an otherwise inadequate sentence. Under the Sentencing Guidelines,
Aimufua's criminal history category did not take into account the bank fraud
offense committed while Aimufua was on bail in this case. Thus, the district
court correctly departed from the guidelines in sentencing Aimufua.

Additionally, the district court correctly denied Aimufua a two-point reduction
for acceptance of responsibility due to Aimufua's failure to terminate or
withdraw from criminal conduct.
CONCLUSION
12
Accordingly, the judgment of the district court is affirmed.
13
AFFIRMED.
The Sentencing Guidelines have no provisions for violation of 8 U.S.C. Sec.

1160(b)(7)(A)(i). Thus, the district court sentenced Aimufua under U.S.S.G.
Sec. 2L1.2, entitled "Unlawfully Entering or Remaining in the United States."
This provision was the most analogous to the offenses Aimufua committed

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935 F.

UNITED STATES of America, Plaintiff-Appellee,

United States Court of Appeals,

In March, 1988, Efosa Lyon Aimufua (Aimufua) submitted an application for

Following receipt of the Pre-Sentence Investigation Report (PSI), the court

We review Aimufua's allegations of error under a de novo standard. See United

Section 3E1.1, the provision governing acceptance of responsibility, permits a

court correctly departed from the guidelines in sentencing Aimufua.

Accordingly, the judgment of the district court is affirmed.

The Sentencing Guidelines have no provisions for violation of 8 U.S.C. Sec.

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