MEMORANDUM OF DECISION
RYMER, District Judge.
The Grand Jury charged three defendants on December 23, 1987 with eight counts alleging the violation of four federal statutes. They are: 1) conspiracy, 18 U.S. C. § 371; 2) possession of stolen mail, 18 U.S.C. § 1708; 3) possession of stolen United States Treasury Check, 18 U.S.C. § 510(b); and 4) possession of a false identification document. Defendant Ruelas-Armenta was charged with three felony offenses; he pled guilty to count four of the indictment pursuant to a plea bargain agreement in which counts one and five would be dismissed. Count four charged defendant with the unlawful possession of the contents of one letter stolen from the mails. 18 U.S.C. § 1708. This letter contained a check to Eleanor Rolko for $468.00. Count one alleged the crime of conspiracy to pass forged treasury checks in violation of 18 U.S.C. § 371; Count five charged the crime of receiving and concealing one stolen Treasury check in the amount of $468.00 in violation of 18 U.S.C. § 510(b). The indictment alleges that a total of over $7,000 was stolen by all the defendants. The factual basis for the plea was that at the time of his arrest on December 8, 1987, Ruelas-Armenta knowingly processed one check in the amount of $468.00 which had been stolen from the mail.
The court's determination of defendant's sentence is governed by the new sentencing guidelines enacted pursuant to 28 U.S. C. § 994(a).
Defendant contends that the Presentence Report disregarded the plea agreement and level of the offense in two respects: first by including conduct other than that charged in the count of conviction and second, by determining that more than minimal planning was involved. In defendant's view, only one level should be added for specific offense characteristics; the resulting guideline range for level five should thus be zero to five months. Furthermore, defendant denies that he has a prior conviction for forgery and that he is the brother of the co-defendant.
Findings of Fact
1. Defendant was arrested on December 8, 1987 when Los Angeles Police Officers stopped the car in which he was riding for a routine traffic violation. After obtaining defendant's consent, the officers searched the car and discovered a black handbag that contained thirteen U.S. Treasury checks totaling $7,301 and various identification documents. The names of the payees on the checks appeared at least once as a name on the identification documents.
3. The checks were stolen and the identification documents were false.
4. In an interview subsequent to the arrest, co-defendant Jose Lopez-Armenta stated to the case agent that he and defendant were brothers.
5. During the interview with the Probation Officer, the defendant denied that he had any relatives in this country. The court has not received, as yet, the information needed to resolve this conflict. The Probation Office did not rely on defendant's denial in calculating the suggested sentence, nor shall I. § 3C1.1, Commentary (e). However, whether there was a relationship may bear to a limited extent on whether there was more than minimal planning.
6. Defendant was convicted of misdemeanor forgery under the name of George Miranda in Capitola, California and was sentenced to 24 months summary probation on July 8, 1987. Defendant now denies that he has ever been convicted of a crime in either the United States or Mexico. (The Probation Office did not count the denial as a material falsehood.) The following evidence supports the Probation Office's Report and finding that defendant's criminal history places him in Category I:
a) photographs and fingerprints of "George Miranda" sent from the Capitola Police Department match those of defendant;
b) defendant initially volunteered the information about this earlier arrest to the arresting agents.
7. The Assistant United States Attorney states that his office has photographs of defendant cashing checks while using false I.D. not associated with this case. These photographs were not turned over to defendant prior to sentencing.
Specific Offense Guideline Range
In adding the six levels to the base number, the Presentence Report considered information outside that alleged in the charge (count four) to which defendant pled guilty. Although count four was for the possession of a single stolen check in the amount of $468.00, the Report took into account the entire amount ($7,031) involved in the 13 checks charged in the Indictment. The adjustment so determined adds four levels to the base offense level. Guideline § 2B1.1. The Report also took into account that defendants had false identification in their possession to further the scheme, concluding that this constituted "more than minimal planning" adding two levels. Guideline § 2B1.2(b)(3)(B). Photographs of defendant negotiating other checks with false I.D. supports the probation officer's assessment.
Defendant argues that the court cannot consider facts outside those inherent in the count of conviction or those stipulated to at the time of the plea in determining the guideline range. To do otherwise would ignore that defendant and the government entered into a plea bargain in which the other two counts would be dismissed. The effect, according to defendant, would be to render plea bargains a nullity and thus wreak havoc with important policies behind the guidelines.
The language of the Guidelines Manual does not support defendant's position. The basic instructions for determining the applicable guideline are in Guideline § 1B1.2. The first step is to "apply the offense guideline section in Chapter Two (Offense Conduct) most applicable to the offense of conviction." § 1B1.2(a). Both parties agree that § 2B1.1 is the most applicable section. The second step is to determine the appropriate guideline range in accordance with § 1B1.3 (Relevant Conduct). The Probation Office considered the additional information under § 1B1.3(a)(1). This sub-section allows the court to consider all acts and omissions that occurred during the offense of conviction. The government contends that the information about the $7,000 and the planning is covered by this provision because the other stolen checks and false identification were found in the car with the defendants when they were arrested. Government's Response at 4. It is unnecessary, however, to resolve
Subsection 1B1.3(a)(2) states that determination of the guideline range solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, shall be based on "all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction." Crimes, such as defendant's, that fall under § 3D1.2(d) are therefore governed by § 1B1.3(a)(2). The commentary to this sub-section notes that, "`Such acts and omissions,' as used in subsection (a)(2), refers to acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable. This subsection applies to offenses of types for which convictions on multiple counts would be grouped together pursuant to § 3D1.2(d); multiple convictions are not required." Guidelines at 1.18 (January 15, 1988) (emphasis added).
So while the conduct regarding the other checks is not contained in the count of conviction, that absence is not a bar to its consideration under subsection (a)(2).
This view does not, as defendant contends, violate important policies behind the guidelines. The guidelines are not intended to effect significant changes in plea bargain practice. Guideline § 1A4.(c). Defendant argues that allowing the court to consider the additional information does effect a significant change by rendering "the whole purpose of plea bargaining null and void." Defendant's Position Paper at 8.
However, while permitting the consideration of additional information might decrease the incentive to plea bargain in certain cases, it should not in most cases destroy all incentives. First, the court can always decrease the provisional offense level two levels if the defendant demonstrates acceptance of responsibility for his actions. Guideline § 3E1.1. Although a guilty plea is neither necessary nor sufficient to obtain this reduction, as a practical matter it will often help. Second, within each offense level the guidelines still permit the court a considerable range of discretion. For example, in this case the guideline range for level ten is six to
The Presentence Report added two levels because the offense involved "more than minimal planning." § 2B1.2(b)(3)(B). Under the guidelines this phrase means:
The Commentary to § 2B1.1 further states, "The guidelines provide an enhancement for more than minimal planning, which includes most offense behavior involving affirmative acts on multiple occasions. Planning and repeated acts are indicative of an intention and potential to do considerable harm. Also, planning is often related to increased difficulties of detection and proof." Guidelines at 2.16 (emphasis added). The presence of other checks and false identifications support the addition of the two levels under 2B1.2(b)(3)(B).
Withdrawal of Plea
Defendant believes that the acceptance by the court of an offense level of ten should allow him to withdraw his guilty plea. He cites § 6B1.3 in support of this view.