02-2559 U.S. v. Grasser

Listen to this article

“[W]e have held open the possibility that a sentencing court might depart from the guidelines ‘when the circumstances surrounding the payment of restitution demonstrate a degree of acceptance of responsibility that is truly extraordinary and substantially in excess of that which is ordinarily present.’ Hendrickson, 22 F.3d at 176 (citing United States v. Bean, 18 F.3d 1367 (7th Cir. 1994)).”

“In Bean, we considered whether a defendant’s repayment of a fraudulent $75,000 bank loan prior to trial could form the basis of an extraordinary acceptance of responsibility departure. Bean, 18 F.3d at 1367. We concluded that while the defendant might be entitled to a 2-level acceptance of responsibility reduction for paying full restitution prior to the adjudication of guilt, nothing about the defendant’s conduct was “so exceptional that it justified triple the reduction provided by §3E1.1(a).” Id. at 1369. We observed that ‘all [defendant] did was to pay off the principal of the involuntary loan before trial. This is precisely the conduct described by Application Note 1(c).’ Id. (emphasis in original). Had the defendant stolen money from the bank and repaid the bank in full the next day, before the crime had been discovered, the Bean court suggested that these circumstances might justify a departure beyond ordinary acceptance of responsibility. Id. Without more, however, a departure for a defendant’s payment of full restitution ‘only five days before trial’ was ‘clearly erroneous.’ Id. See United States v. Carey, 895 F.2d 318, 323-24 (7th Cir. 1990) (departure set aside when 91 percent of restitution paid prior to conviction). Our case presents an even less sympathetic factual scenario than in Bean. On the day of her sentencing, Grasser had pledged, in settling the bank’s civil suit, approximately $33,000 and paid roughly $4,000 towards an $87,991 plus bill, just 42 percent of the amount she owed, not counting interest. There was nothing extraordinary about this or about the circumstances under which it was paid.”

Reversed and remanded.

Appeal from the United States District Court for the Northern District of Illinois, Andersen, J., Evans, J.