United States of America v. Frank S. Pons

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1193
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
F RANK S. PONS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 CR 670-1 — Virginia M. Kendall, Judge.
____________________
A RGUED J ULY 8, 2015 — DECIDED A UGUST 4, 2015
____________________
Before POSNER , S YKES, and HAMILTON , Circuit Judges.
S YKES, Circuit Judge. Frank Pons was charged with com-
mitting wire fraud, 18 U.S.C. § 1343, and equity skimming,
12 U.S.C. § 1715z-19, and was released from custody pend-
ing trial. Two months before trial was scheduled to begin, he
fled the country. He eventually turned himself in to
U.S. authorities in Brazil and later pleaded guilty to the two
offenses. At sentencing the district court applied a two-level
upward adjustment for obstruction of justice, see U.S.S.G.

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2 No. 15-1193
§ 3C1.1, refused to apply a reduction for acceptance of
responsibility, see id. § 3E1.1, and imposed a within-
guidelines prison term of 78 months. On appeal Pons chal-
lenges the district court’s decision not to apply § 3E1.1. We
affirm. The district court did not clearly err in concluding
that Pons’s circumstances were not so extraordinary as to
warrant credit for acceptance of responsibility.
I. Background
From 2006 through 2009, Pons engaged in wire fraud and
equity skimming in connection with purchasing and manag-
ing real estate. He made his initial appearance on these
charges in October 2011. A magistrate judge allowed his
release pending trial, but ordered him to surrender his
passport and forbade him from obtaining a new one.
After extended pretrial proceedings, trial was set for
March 25, 2013. Pons was supposed to attend a final pretrial
conference on March 15, but he failed to appear. The district
court issued a bench warrant, and two federal agents visited
Pons’s home to determine his whereabouts. The agents
learned from Pons’s mother that he had left two months
earlier and did not tell her where he was going or when he
was coming back.
It turns out that Pons had fled the United States in
January 2013 bound for London, Amsterdam, Hong Kong,
and Brazil. He obtained a new passport in July 2012 after
falsely asserting that he had lost his old one. Pons wrote in
his application that he planned to go to Canada in October
for ten days. In March 2014 the government learned through
Pons’s lawyer that Pons wanted to turn himself in, and the

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No. 15-1193 3
U.S. Marshals Service arranged for him to fly back to the
United States from Rio de Janiero. Once in custody, Pons
promptly pleaded guilty.
At sentencing Pons conceded that he faced a two-level
upward adjustment under the Sentencing Guidelines for
obstructing justice. See § 3C1.1. Still, he urged the district
court to reduce his offense level under § 3E1.1 for acceptance
of responsibility. He contended that his situation was “ex-
traordinary” because he did not wait to get caught after
fleeing but instead self-surrendered in a country where there
“is no extradition treaty” with the United States, and thus he
“could not be extradited.” He cited no authority for that
contention, however. Pons apologized to the judge for
fleeing and announced that he had decided to come back “to
do what is right.”
The judge concluded that Pons had not adequately
demonstrated acceptance of responsibility to overcome his
acts of obstructing justice. The judge noted that even before
Pons fled, he had not spared the government the time and
expense of preparing the case for trial because the parties
were only two weeks away from trial when they learned of
his disappearance and had prepared witnesses, motions in
limine, jury instructions, and opening and closing state-
ments. The judge also noted that Pons had violated a court
order in obtaining a passport and “let the marshals run
around” for a year looking for him. A person engaged in
that kind of behavior, the judge declared, “is not someone
who has accepted responsibility.” The judge also rejected
Pons’s argument that his self-surrender was a mitigating
factor under 18 U.S.C. § 3553(a). By fleeing, the judge ex-
plained, Pons had “selfishly avoided the consequences of his

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4 No. 15-1193
actions,” and had abandoned his wife, his children, and his
mother, who was battling cancer.
II. Discussion
On appeal Pons contends that the district court clearly
erred in denying an offense-level reduction under § 3E1.1 for
acceptance of responsibility. A defendant who obstructs
justice may receive credit for accepting responsibility only in
“extraordinary cases.” § 3E1.1 cmt. n.4; see United States v.
Black, 636 F.3d 893, 900 (7th Cir. 2011); United States v.
Krasinski, 545 F.3d 546, 554 (7th Cir. 2008); United States v.
Melot, 732 F.3d 1234, 1243 (10th Cir. 2013). Whether a de-
fendant has accepted responsibility is a factual finding,
which we review for clear error and accord great deference.
United States v. Bennett, 708 F.3d 879, 892–93 (7th Cir. 2013);
United States v. Monem, 104 F.3d 905, 910 (7th Cir. 1997).
Pons contends that his case is extraordinary because he
self-surrendered in a country from which he could not be
extradited. That argument is frivolous. The United States
and Brazil have had an extradition treaty since 1964.
See Treaty and Additional Protocol Between the United
States of America and Brazil, U.S.–Braz., Dec. 17, 1964,
T.I.A.S. No. 5691, available at 1964 WL 70284. The treaty
remains in force and is applicable to Pons. The treaty covers
persons charged with “[o]btaining money, valuable securi-
ties or other property by false pretenses.” Id. at 4. Wire fraud
is such an offense. So Pons cannot possibly claim that be-
cause he was not subject to extradition, his self-surrender
warrants significant credit. Indeed, after oral argument
counsel conceded the point in a supplemental filing.

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No. 15-1193 5
Moreover, the district court reasonably concluded that
Pons’s conduct in fleeing the country was so egregious that
awarding credit for acceptance of responsibility was unjusti-
fied. “The fact that a defendant having done everything he
could to obstruct justice runs out of tricks, throws in the
towel, and pleads guilty does not make him a prime candi-
date for rehabilitation.” United States v. Buckley, 192 F.3d 708,
711 (7th Cir. 1999). Indeed, before turning himself in, Pons
illegally obtained a new passport, skipped bail, and traveled
internationally for more than a year. What’s more, in the
process he committed at least two additional felonies—
failure to appear, 18 U.S.C. § 3146, and falsifying his pass-
port application, id. § 1542. Under the circumstances, Pons’s
obstruction was far from trivial, and his guilty pleas did not
spare the government additional burdens or expense.
See United States v. Hacha, 727 F.3d 815, 818 (7th Cir. 2013);
see also United States v. Gonzalez, 608 F.3d 1001, 1008–09 (7th
Cir. 2010) (upholding denial of § 3E1.1 reduction where
defendant had fled, necessitating two-year manhunt, be-
cause burden of obstruction on law enforcement exceeded
benefit of pleading guilty once captured). We agree with the
district court that nothing about Pons’s case is extraordinary
or reflects genuine acceptance.
Pons insists that his actions are analogous to the defend-
ant in United States v. Lallemand, 989 F.2d 936 (7th Cir. 1993),
abrogated on other grounds by United States v. Vizcarra, 668 F.3d
516 (7th Cir. 2012). There the defendant had instructed an
accomplice to destroy evidence, id. at 937, but confessed
immediately after his arrest and retracted his instruction to
the accomplice (though it was too late to save the evidence),
id. at 937–38. We held that a guidelines enhancement for
obstruction and a reduction for acceptance of responsibility

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were not incompatible because the obstruction took place “at
time t, and the acceptance of responsibility at time t + 1.” Id.
at 938. In Pons’s view his situation is similar. He contends
that he “voluntarily abandon[ed]” his obstruction at time
t + 1 by self-surrendering in Brazil and promptly pleading
guilty.
We disagree. The defendant in Lallemand wasted no time
after his arrest in trying to stave off the planned obstruction,
whereas Pons spent more than a year country-hopping to
avoid responsibility for his crimes. Additionally, here the
prosecutor and district judge had prepared for trial before
learning that Pons had absconded, and while he was miss-
ing, the government had to expend resources trying to locate
him. The two cases are easily distinguishable.
Acceptance of responsibility is a question of fact, and the
district court’s finding is not clearly erroneous.
A FFIRMED.

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