9 F. 3d 118 - United States v. Rex

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is ordered submitted without oral argument.

The Appellant, Lester Rex, was convicted of violating nine counts of 18 U.S.C. 1343 and 2. Appellant engaged in and aided and abetted others engaged in a telemarketing fraud scheme. Appellant initially cooperated with the government. He testified before the grand jury as to the activities of the businesses with which he was involved and signed statements implicating himself and others involved in the telemarketing scheme. At some point, the cooperation between Appellant and the government broke down and Appellant ceased to cooperate.

At sentencing Appellant received a two-point offense level reduction for acceptance of responsibility, but was denied an additional one point reduction for "timely providing complete information to the government concerning his own involvement in the offense." U.S.S.G. 3E1.1(b)(1). Appellant appeals the district court's denial of the one point reduction.2

We review the decision to deny the one-point offense level reduction under the clearly erroneous standard. "The defendant bears the burden of proving by a preponderance of the evidence that he is entitled to a reduction of the offense level for acceptance of responsibility. Combining this burden with the application of the clearly erroneous standard, the trial court's assessment is entitled to deference by the appellate court and will generally be sustained." U.S. v. Ochoa-Fabian, 935 F.2d 1139, 1142 (10th Cir.1991), cert. denied, 112 S.Ct. 1565 (1992).

Appellant challenges the district court's application of Sentencing Guideline 3E1.1. To receive a one-point offense level reduction 3E1.1(b)(1) requires that the Appellant "timely provid[e] complete information to the government concerning his own involvement in the offense ..." The district court denied the Appellant's request for an additional one-point offense level reduction after finding that Appellant "provided some information, but [ ] not complete information." Appellant Br., Attachment C at 19. Although Appellant asserts that the trial court denied the one point reduction because Appellant refused to testify against other members of the telemarketing scheme, there is no evidence in the record that the judge relied on that fact. In fact, the record shows that Appellant did not give the government complete information. For example, a government agent testified that the Appellant failed to produce a box of company documents that he previously had agreed to give to the government.

Moreover, prior to trial, Appellant told the government that he used an alias, Bob Ryan, when conducting the telemarketing scheme. However, Appellant's defense at trial was that he was not Bob Ryan. Appellant Br., Attachment C at 14. Thus, Appellant called into question the information he did provide to the government.3

Finally, Appellant is mistaken in his understanding of what constitutes complete information when one is charged with aiding and abetting others to commit unlawful acts. Complete information about the Appellant's own conduct will generally require him to reveal information about the conduct of those whom he aided and abetted.

The District Court's decision is AFFIRMED.