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United States v. Colussi

filed: April 18, 1994.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
DAVID PAUL COLUSSI, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of California. D.C. No. CR-92-00390-SVW. Stephen V. Wilson, District Judge, Presiding.

Before: Jerome Farris, Pamela Ann Rymer, and Andrew J. Kleinfeld, Circuit Judges. Opinion by Judge Farris.

Author: Farris

FARRIS, Circuit Judge:

David Paul Colussi appeals his 210-month sentence imposed following his guilty plea to bank robbery in violation of 18 U.S.C. § 2113(a). Colussi contends the district court erred in denying Colussi's request for a one level reduction pursuant to U.S.S.G. § 3E1.1(b) because the court mistakenly concluded that the matter was discretionary, failed to make any findings of fact, and mistakenly concluded that defendant had stipulated to a two point reduction for acceptance of responsibility only. We have jurisdiction under 28 U.S.C. § 1291. We vacate and remand for further proceedings to determine whether Colussi is eligible for an additional reduction of one level for timely plea of guilty pursuant to U.S.S.G. § 3E1.1(b)(2).

I.

On March 6, 1992, David Paul Colussi robbed a bank in Long Beach, California using his fingers to pretend he had a gun and telling the teller "This is a robbery, give me the money. I have a gun, put it in the bag." Four days later, Colussi was apprehended by Long Beach police officers. His response was "You got me. I did it." An indictment was issued on May 12, 1992. On August 3, 1992, Colussi was arraigned, he pled not guilty, and trial was set for September 29.

On September 11, 1992, Colussi pled guilty pursuant to a plea agreement. Under the agreement, the Government agreed to recommend a two-level adjustment for acceptance of responsibility, which was the adjustment then available under the United States Sentencing Guidelines. Sentencing, originally set for October 19, 1992, was continued to February, 1993.

Effective November 1, 1992, the Guidelines were amended to provide an additional one-level adjustment for early acceptance of responsibility. The Probation Office submitted a revised presentence report stating that it had no "objection" to an additional one-level reduction pursuant to the amended section 3E1.1.

The district court denied Colussi's request for the additional reduction:

I explicitly make a finding that I'm not going to give him that additional point. It's within my discretion. I would not choose to exercise my discretion in that regard. And a further reason is that he stipulated to a two point reduction in the plea agreement.

If Colussi had received the extra point reduction, the applicable sentencing range would have been 151 to 188 months. Instead, the guideline range was 168 to 210 months. The Court rejected the Government's recommendation that the sentence be at the low end of the guideline range and sentenced Colussi to 210 months in prison.

II.

A district court's interpretation, and application of the Sentencing Guidelines is reviewed de novo. United States v. Fagan, 996 F.2d 1009, 1017 (9th Cir. 1993); United States v. Blaize, 959 F.2d 850, 851 (9th Cir.), cert. denied, 119 L. Ed. 2d 576, 112 S. Ct. 2954 (1992).

Unlike departures under the Sentencing Guidelines, adjustments to the offense level are characteristically mandatory. The Guidelines use permissive language (i.e. "may") in the context of departures. See U.S.S.G. § 5K2.0. In the context of adjustments, the Guidelines use mandatory language. See, e.g., U.S.S.G. § 3A1, U.S.S.G. § 3B1, ...


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