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United States v. Thomas

filed: February 10, 1993.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
PETER H. THOMAS, DEFENDANT-APPELLANT. UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, V. HENRY LEE SCHULLE, DEFENDANT-APPELLANT. UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, V. MICHAEL E. HILANDER, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Western District of Washington. D.C. No. CR-90-1078-RJB. Robert J. Bryan, District Judge, Presiding

Before: Tang, Kozinski, and Fernandez, Circuit Judges

MEMORANDUM

Peter H. Thomas, Henry Lee Schulle, and Michael E. Hilander appeal their sentences under the Sentencing Guidelines on their guilty plea convictions for RICO offenses in violation of 18 U.S.C. § 1962(c).*fn1 We affirm.

In October 1990, appellants, along with twelve others, were indicted for RICO and additional offenses primarily related to the activities of a criminal enterprise known as the Mansford Corporation.

Schulle pled guilty to Count II of the indictment, which charged racketeering violations under 18 U.S.C. § 1962(c) and aiding and abetting under 18 U.S.C. § 2. On appeal he identifies no specific error in the court's computation of his sentence under the Guidelines. Indeed, at sentencing he accepted the offense level set out in the presentence report, and limited his argument to reasons for a sentence at the low end of his Guidelines range.

In April of 1991, Thomas and Hilander were charged with RICO and other offenses in a superseding indictment. That indictment focused on the activities of Texacal International, Inc., a criminal enterprise which grew out of the Mansford Corporation. Both pled guilty to Count I of the superseding indictment, which charged them with racketeering violations under 18 U.S.C. § 1962(c).

Thomas had prepared various false financial statements and tax returns for Texacal, himself, and other members of the enterprise, which were fraudulently used to induce lenders and lessors to make loans and leases to the enterprise or its members. He was sentenced to 73 months imprisonment and ordered to pay $4,382,700 in restitution. He contends that the court misapplied the Guidelines by increasing his offense level fourteen points rather than thirteen points under U.S.S.G. 2F1.1(b)(1).*fn2 Thomas also asserts that the court erred by failing to apply the two point downward departure for acceptance of responsibility under U.S.S.G. § 3E1.1.

Hilander, along with Schulle and two others, created Texacal as a vehicle for devising "schemes and artifices to defraud and for obtaining money and property." He eventually became president and a 25 percent shareholder of Texacal and, as he agreed at the time of his plea, "personally engaged in numerous real estate and credit transactions in which he knowingly used false and fraudulent financial statements and tax returns for Texacal to induce various credit providers to enter into financial transactions . . . ."

Hilander was sentenced to 67 months imprisonment and ordered to pay $5,615,640 in restitution. Under U.S.S.G. § 3B1.1(a), the court found that Hilander was "an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive," and applied the prescribed four point increase to his offense level. Hilander contends that the court erred in applying the increase because his role was equal to that of the three other principals of Texacal. He also argues that there was insufficient evidence to support a finding of a leadership role.

A. Thomas

1. Offense Level Calculation

The court implicitly found that the loss attributable to Thomas was more than $5 million and less than $10 million when it applied the fourteen level increase under Guidelines section 2F1.1(b)(1)(O) (requiring a 14 level increase where the loss exceeds $5 million). Thomas made no objection to this finding during sentencing. Thomas now argues that only a thirteen point increase was warranted because the court found him liable for only $4,382,700 in restitution. We have held that the failure to object to the district court's Sentencing Guidelines calculation waives the right to appeal. United States v. Visman, 919 F.2d 1390, 1394 (9th Cir. 1990), cert. denied, 112 S. Ct. 442, 116 L. Ed. 2d 460 (1991). Thus, we will not consider this argument.*fn3

2. Acceptance of Responsibility

Whether an adjustment for acceptance of responsibility is appropriate is a factual finding reviewed for clear error. United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir. 1990). The defendant must "clearly demonstrate[] a recognition and affirmative acceptance of personal responsibility for his criminal conduct." U.S.S.G. § 3E1.1(a). "A defendant who enters a guilty plea is not entitled to a sentencing reduction under this section as a matter of right." Id. § 3E1.1(c). Moreover, "the sentencing Judge is in a unique position to evaluate a defendant's acceptance of responsibility. For this reason, the determination of the sentencing Judge is entitled to great deference on review." Id. § 3E1.1, comment. (n.5). Finally, the ...


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