UNITED STATES of America, Plaintiff-Appellee, v. Robert KOLBE, Defendant-Appellant.
No. 03-3458.
United States Court of Appeals, Eighth Circuit.
Submitted May 13, 2004. Decided Sept. 2, 2004.
109 F. Appx. 129
Before MURPHY, HEANEY, and MAGILL, Circuit Judges.
Charles J. Williams, Cedar Rapids, IA, for Plaintiff-Appellee. Robert Kolbe, Oklahoma City, OK, pro se.
Robert Samuel Kolbe pled guilty to manufacturing, attempting to manufacture, and aiding and abetting an attempt to manufacture five grams or more of methamphetamine in violation of
Kolbe was indicted on February 21, 2003 for manufacturing and attempting to manufacture more than five grams of methamphetamine. He was arraigned and pled not guilty to the charge a few days later, and the district court entered its standard scheduling order in the case. The order included the following language:
the additional one level decrease for acceptance of responsibility provided for under
USSG 3E1.1(b)(2) will not be given to the defendant, unless, notice is given to the court by no later than the close of business fifteen (15) business days in advance of the date scheduled for trial that a case has been settled and the defendant anticipates entering into a plea agreement.
The order also indicated that failure to meet the deadline would result in denial of the third level reduction unless “exceptional circumstances are shown.”2
Kolbe filed a timely motion to suppress on April 7. After receiving the government‘s tardy resistance to his motion, he withdrew it and filed a written notice of intent to plead guilty twelve business days before the May 5 trial date. At sentencing Kolbe sought a three level reduction for acceptance of responsibility. The district court applied its fifteen business day rule, explaining that the rule was necessary in order to schedule its heavy criminal caseload and to provide notice to witnesses. The district court found no circumstances warranting an exception to the rule and granted Kolbe a two level reduction for acceptance of responsibility. He was sentenced to 66 months.
On appeal Kolbe argues that the district court should have granted him a third level reduction. He contends that the district court erred in finding that his notification was not timely because it only considered its fifteen business day rule while
Even though the district court did not refer to the motion deadline extension Kolbe had received from the magistrate judge or to the government‘s failure to file its resistance on time, it did state that it had expended resources on scheduling Kolbe‘s trial and it found that there were no exceptional circumstances meriting departure from its fifteen business day rule. While the district court could have made it clearer that it had considered all the context and other circumstances raised by Kolbe, we cannot say that it clearly erred in its factual findings or application of the guidelines.