Sentence Reduction for Cooperation Requires ... Cooperation

By Robyn Hagan Cain on October 26, 2012 | Last updated on March 21, 2019

There’s a metaphorical pot of gold at the end of the sentencing rainbow for defendants who cooperate with the authorities. A defendant who accepts responsibility for his actions can receive a sentence reduction under USSG §3E1.1.

The opposite is true for defendants who try to thwart law enforcement efforts. A district court can enhanced a defendant’s sentence under USSG §3C1.1 for obstruction of justice. And that’s what happened in Robert Dufresne III’s case.

Dufresne pleaded guilty to mail fraud and money laundering in February 2011, 11 days after he was charged. In the plea agreement, Dufresne admitted to intentionally defrauding investors out of more than $5 million. Dufresne agreed to forfeit his gains from the mail fraud and money laundering, and not to contest or challenge the forfeiture on any grounds.

The government moved for a preliminary order of forfeiture on May 2, 2011, seeking, among other things, a 2007 Ford Mustang and a 2010 Harley Davidson motorcycle. During his May 13, 2011 deposition, Dufresne reported selling the Mustang, and claimed that he lost the sale proceeds or "somebody took" the proceeds while Dufresne was intoxicated. He testified that he gave the motorcycle to somebody who was attempting to assume Dufresne's bank loan on the motorcycle.

Later investigation, however, revealed that Dufresne's statements about the vehicles were false. At sentencing, the district court enhanced Dufresne's sentence for obstruction of justice because Dufresne sold the Mustang, (which was an asset subject to forfeiture), failed to turn over the proceeds of that sale, caused the government to expend additional resources to locate assets, and falsely stated he lost the proceeds from the sale of the Mustang.

Dufresne appealed his sentence, claiming the district court procedurally erred in enhancing his sentence for obstruction of justice and denying him a downward adjustment for acceptance of responsibility.

The Eighth Circuit Court of Appeals made it clear that the district court did not err.

An obstruction of justice enhancement is proper where a defendant intentionally "attempts to minimize and conceal his assets" during "the presentence investigation for purposes of determining the defendant's ability to pay fines or restitution." Because the district court concluded that Dufresne made a dishonest attempt to conceal the proceeds of the Mustang sale -- and the Eighth Circuit defers to a district court's credibility findings on such points -- the appellate court affirmed the sentence.

A sentence reduction for taking responsibility requires actually taking responsibility. Unfortunately for Dufresne, the district court's determination that he obstructed the investigation gets deference in the Eighth Circuit.

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