ussg.gif (9707 bytes)


SURVEY OF

THE GUIDELINES

A summary of recent cases from the Federal Courts

Dealing with the Federal Sentencing Guidelines


Section 3E1.1 - Acceptance of Responsibility  


United States v. Washington, 340 F.3d 222 (5th Cir. 2003)

The defendant in this case, Troy Washington, was charged with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He moved to suppress the evidence against him on the grounds that the Government’s “no knock” entry, which produced the evidence against him, violated his rights under the Fourth Amendment. After he lost that motion, Washington proceeded to a bench trial before Judge Werlein of the S.D.Tex. based on stipulated evidence. Washington was then found guilty.

Because the bench trial was based on stipulated evidence (which did not put the Government to its burden of proof of the essential elements of the crime (see U.S.S.G. 3E1.1, Application Note 2)), both the probation office and the Government recommended that Washington receive a downward departure for acceptance under U.S.S.G. § 3E1.1. Judge Werlein disagreed and denied any reduction for acceptance of responsibility. On appeal, the defendant principally challenged that ruling.

At sentencing, Judge Werlein expressed his ire, first because the defendant had moved to suppress the evidence against him, and then because he refused to waive his right to appeal the suppression issue. He called the defendant’s motion to suppress an “intent to walk, not accept responsibility for the criminal conduct.” (Id., at 228). He also “intimated” that Washington’s failure to waive his right of appeal “might influence the court’s decision to deny the sentence reduction.” (Id., at 229).

On appeal, the Fifth Circuit affirmed the district court’s denial of the motion to suppress; but it reversed the denial of any sentence reduction for acceptance of responsibility. In relevant part, the Court stated:

“The district court equates Washington's attempt to suppress evidence and continue to trial with avoiding responsibility. The problem, however, is that a motion to suppress is not synonymous with putting ‘the government to its burden of proof at trial.’ At issue in a suppression hearing is the admissibility of the evidence. The defendant has the burden to demonstrate why the evidence should be excluded. A trial, on the other hand, puts the burden on the government to prove the essential elements of the offense.

“The district court creates what is tantamount to a per se prohibition against acceptance of responsibility for a defendant filing a motion to suppress and continuing to trial. Although Washington surely hoped to avoid conviction when he moved to suppress the evidence, this ‘intent to walk’ does not negate a willingness to accept responsibility under the Guidelines. . . . The Guidelines create a distinction between a defendant's denial of factual guilt and denial of legal guilt, allowing acceptance of responsibility for the latter. To permit a reduction when a defendant challenges the constitutionality of a statute but deny it when a defendant admits his conduct and only challenges the way the police obtained the evidence is counter-intuitive. Washington admitted to the factual conduct that formed the basis of his conviction. He argued that the police violated the Fourth Amendment when obtaining the evidence. He did not challenge the existence or credibility of the evidence itself.” (Id., at 228-29).

The Court also disagreed with Judge Werlein’s punishment of the defendant because of his refusal to waive his right to appeal the suppression ruling. It stated: “By asking whether Washington would waive the right to appeal the suppression issue, the court intimated that such a waiver might influence the court's decision to deny the sentence reduction. Conditioning a sentence reduction on a waiver of the right to appeal a constitutional issue is problematic. A challenge to the legality of the police conduct is completely separate from a challenge to the factual elements of a defendant's conduct. Washington should not have to waive appeal of a constitutional issue in order to receive a sentence reduction for acceptance of responsibility. . . . A defendant should not have to make this choice.” (Id., at 229-30).


United States v. Banks, 252 F.3d 801 (6th Cir. 2001)

This case is noted as a rare example of a defendant successfully challenging a district court's refusal to grant him a sentence reduction based on acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1. Because a district court’s decision regarding acceptance of responsibility is normally a factual issue, its ruling is granted great deference and it is usually affirmed unless "clearly erroneous."

In this case, the defendant pled guilty to one count of possession of cocaine with intent to distribute. Because he offered to cooperate with the Government he was released on bail, pending sentencing. Two months later he was arrested and charged with an assault against his girlfriend and her daughter. At sentencing, the district court (Judge Cleland) used that assault and the defendant’s "history of assaultive behavior" as one of the reasons justifying its refusal to grant an acceptance of responsibility sentence reduction.

In addition, the probation officer recommended that the defendant receive no acceptance of responsibility sentence reduction for another reason: she claimed that the defendant and/or his attorney had repeatedly failed to provide any verbal or written statement to her concerning the particulars of the defendant’s offenses. In fact, counsel had asked the probation officer not to discuss the particulars of the offenses with the defendant during his presentence interview; and told her that a written statement would be forthcoming. Despite several requests, that written statement was never given to the probation office. The district court used that failure to provide the probation office with the statement it had requested as an additional reason for denying the acceptance of responsibility sentence reduction.

The Sixth Circuit reversed on both grounds. It noted that the defendant's post-plea assault charges "were plainly unrelated to the offenses for which he was being sentenced (drug trafficking and firearm possession), signaling that he was denied the sentence reduction due to a general criminal disposition."

The Court cited its decision in U.S. v. Morrison, 983 F.2d 730, 735 (6th Cir. 1993), where it vacated a sentence in which the district court had considered the defendant's subsequent positive drug test and indictment for attempted theft as factors in determining whether he had accepted responsibility for a firearms violation. The Morrison court found that the defendant's conduct while out on bond was unrelated to the firearms charge and that it was not probative of whether the defendant accepted responsibility for the firearms offense. The Court stated: "We hold that acceptance of responsibility, as contemplated by the United States Sentencing Commission, is 'acceptance of responsibility for his offense,' . . . , not for 'illegal conduct' generally. Considering unrelated criminal conduct unfairly penalizes a defendant for a criminal disposition, when true remorse for specific criminal behavior is the issue."

Based on Morrison, the Sixth Circuit concluded in the instant case that "[c]onsideration of the unrelated post-plea charges as a factor in determining whether Banks accepted responsibility for the sentencing offenses was, thus, improper."

The Court also concluded that the district court had erred when it refused to credit Banks for acceptance of responsibility because he failed to provide the probation department with a written account of his offenses. It noted that the defendant had cooperated fully with his arresting officers, had offered to assist the Government, and had timely pled guilty. "Based on these facts, the government entered into a Rule 11 plea agreement with Banks wherein the government recommended a sentence reduction ‘because defendant has accepted responsibility for the offense as demonstrated by pleading guilty’. . . . In light of [those factors], . . . the subsequent failure of defense counsel or Banks to provide the probation officer with a written account of the offenses does not constitute a deliberate refusal to cooperate with the government sufficient to justify denying Banks a sentence reduction for acceptance of responsibility."

Back to Table of Contents


United States v. Gee, 226 F.3d 885 (7th Cir. 2000)

The two defendants in this case, William Norris and Jim Gee, were found guilty by a jury of numerous counts of mail fraud, wire fraud, conspiracy and other related crimes for their participation in a scheme to assist in the unauthorized reception of cable television signals through the sale of cable descramblers. For various reasons, a number of those convictions were subsequently vacated on appeal (see P&J, 11/6/00); but the Seventh Circuit did affirm the conviction of William Norris for assisting in the unauthorized reception of cable service in violation of 47 U.S.S. § 553(a)(1). Despite his conviction, Norris was sentenced to 37 months of home confinement, based in part on a highly unusual downward departure for acceptance of responsibility, which was granted over the Government’s strenuous objections, and which the Government cross-appealed.

At Norris’ sentencing, District Judge Miller concluded that even though Norris had gone to trial (and was therefore not eligible for a sentence reduction for acceptance of responsibility under the provisions of U.S.S.G. § 3E1.1), he was still entitled to a two-level "non-heartland" acceptance of responsibility sentence reduction under the provisions of U.S.S.G. § 5K2.0. The Government of course objected, arguing that the district court had no authority to grant Norris a departure for "quasi-acceptance of responsibility" after denying him a reduction under § 3E1.1. The Seventh Circuit disagreed and held that Judge Miller had not abused his discretion.

The Court first observed that the Guidelines "do not explicitly bar the district court’s departure." It then noted that the "the district court found many reasons why this case, and Norris actions, fell outside the ‘heartland’ of the applicable guidelines." (Id., at 901). For example, it emphasized that "Norris consistently believed that he was operating a legal business because his product [cable descramblers] was ambiguous in the sense that customers could use it for legal--as well as illegal--purposes. He offered for more than five years to play a lower-stakes game with the government--one in which his ante would be his business, but not his freedom. He invited a civil suit, seeking an injunction, which would have prevented the sales of any items found illegal." The Court was obviously impressed with those efforts as well as Norris’ conduct following his conviction - in which he sought the Government’s participation in disposing of his inventory - as evidence of the unusual nature of this case. Thus it held that the district court had "correctly applied the applicable grounds for departure" and it was therefore "not clear error for the district court to depart downward two levels under § 5K2.0." (Id., at 902).

Back to Table of Contents


United States v. Whitman, 209 F.3d 619 (6th Cir. 2000)

Once again, the Sixth Circuit has affirmed its minority view among the Circuits that the provisions of U.S.S.G. § 3E1.1 are concerned "solely with whether a defendant admits or denies material conduct during her investigation, prosecution, or sentencing." Most of the other Circuits have held that a sentencing court may consider conduct unrelated to the offense of conviction. (See, e.g., U.S. v. Prince, 204 F.3d 1021 (10th Cir. 2000).

In this case, despite a recommendation from the Probation Officer in the presentence report that the defendant should receive a two-level sentence reduction for acceptance of responsibility (which the Government did not object to), the district court denied that sentence reduction, based on its characterization of the defendant as "simply an untruthful human." Throughout the course of the sentencing hearing, the court cited multiple instances in which it concluded that the defendant had either lied or failed to volunteer truthful information. The Sixth Circuit noted, however, that the "majority of these instances . . . were unrelated to the question of whether Whitman had accepted responsibility for her crime of embezzlement."

The Court then continued that most of the omissions were not "relevant to the acceptance of responsibility determination," and "[w]hether Whitman is or is not a generally candid person is thus not the proper inquiry in the case before us."

Back to Table of Contents


United States v. Prince, 204 F.3d 1021 (10th Cir. 2000)

In this case the Tenth Circuit joined the vast majority of Circuits in holding that, when assessing whether to grant a defendant a downward departure for acceptance of responsibility under U.S.S.G. § 3E1.1, the district court may consider criminal conduct unrelated to the offense of conviction. Thus, the Court joined with similar holdings in the First, Third, Fifth, Seventh, Eighth and Eleventh Circuits. A contrary view was adopted by the Sixth Circuit in U.S. v. Morrison, 983 F.2d 730 (6th Cir. 1993), where that court stated that the provisions of § 3E1.1 relate to "acceptance of responsibility for his offense", and thus concluded that "considering unrelated criminal conduct unfairly penalizes a defendant for a criminal disposition, when true remorse for specific criminal behavior is the issue."

In the instant case, the defendant pled guilty to bank robbery. As part of his plea agreement, the Government agreed not to oppose a three-level sentence reduction for acceptance of responsibility. The Probation Department, however, recommended against that reduction on the ground that the defendant had stabbed another inmate while awaiting sentence. It concluded that such conduct was inconsistent with the language of Application Note 1(b) to § 3E1.1 which talks about a "voluntary termination or withdrawal from criminal conduct."

The Tenth Circuit affirmed the district court’s denial of the sentence reduction stating that the defendant’s conduct was inconsistent with Application Note 1(b) and that the Guidelines "do not . . . qualify that factor to permit consideration of only the criminal conduct related to or of the same nature as the offense of conviction."

Back to Table of Contents


United States v. McIntosh, 198 F.3d 995 (7th Cir. 2000)

In this case, the Seventh Circuit rejected the defendant’s claim that the district court had refused to grant him a sentence reduction for acceptance of responsibility, under U.S.S.G. § 3E1.1, as "punishment" for filing two motions. Judge Rovner, who agreed with the defendant, concluded in her dissent that the refusal was "not because of anything he said or did not say about his criminal conduct, but because he filed two motions (one of them through his attorney) seeking dismissal of the indictment on legal grounds."

The defendant, who had been erroneously released from incarceration for an unrelated crime, was charged with bank fraud and money laundering for conduct engaged in while on release. He eventually plead guilty to money laundering and was sentenced to a 78_month term of imprisonment. On appeal, the defendant argued that the district court erred in refusing to grant him a two_level decrease in his offense level for acceptance of responsibility under § 3E1.1(a) as punishment for his exercise of his rights.

The district court acknowledged that it usually granted the reduction to guilty_pleading defendants, but had doubts about this particular defendant's "moral recognition of the wrongfulness of his conduct and acceptance of the appropriate punishment for that conduct." It cited in particular the defendant's effort to have the case dismissed on speedy trial grounds, and his effort to have the indictment dismissed for failing to allege that the bank was federally insured. The district court characterized the defendant's efforts as resorting to a "trick bag" to manipulate the system.

In upholding the district court’s decision, the majority differentiated between a good_faith assertion of constitutional rights and manipulative conduct that belies a defense argument for a sentence reduction under the Guidelines' provision on acceptance of responsibility. It said that the district court was not wrong to keep in mind the defendant's overall pattern of deceit, pointing out that the defendant used seven aliases and five bogus social security numbers, and that this was not his first prosecution for fraudulent activity.

The majority said that the district court had not penalized the defendant for exercising his rights, concluding that the district court was concerned not with the defendant's filing of motions but the context in which he made them. For example, the defendant's motion to dismiss on speedy trial grounds occurred after a delay occasioned by extended plea negotiations. "This conduct discloses a lack of acceptance of responsibility," the majority said. The Court concluded that, while the defendant has a right to attempt to reach a plea bargain and walk away from an unacceptable deal, what he may not do is spend time bargaining and then attempt to avoid prosecution by raising the issue of a delay occasioned by his own actions rather than by bad faith on the part of the government.

The defendant's second motion for dismissal occurred after the defendant, acting pro se, pleaded guilty. "Pleading guilty then attempting to obtain a dismissal on a frivolous point [failure of the indictment to allege federal insurance] is disingenuous and wholly inconsistent with acceptance of responsibility," the majority said. "The district court was entitled to doubt the credibility of [the defendant] based on the whole picture before it, and its assessment was not clearly erroneous."

In her dissent, Judge Rovner discerned no bad faith in the defendant's conduct in making motions that she characterized as reasonable under the circumstances and unrelated to his guilt.

Back to Table of Contents


United States v. Jeter, 191 F.3d 637 (6th Cir. 1999)

In this case the Sixth Circuit established an important limitation on a court’s ability to deny a defendant a sentence reduction for acceptance of responsibility, under U.S.S.G. § 3E1.1, based on conduct unrelated to the specific Federal crime to which he pled guilty. In June of 1996, the defendant was arrested on State charges for fraudulent loan transactions. In October of that same year, he engaged in similar conduct on at least three subsequent occasions. In November of 1997, he was indicted separately in eight different indictments on Federal charges for bank fraud, fraudulent use of a social security card, and money laundering. While the Federal and State charges were similar in nature in that they both involved fraudulent loan transactions, they apparently arose out of different criminal acts.

Pursuant to identical written plea agreements, the defendant pled guilty to at least one count in each indictment. Included in each agreement was a Government promise not to oppose the defendant’s request for a three level sentence reduction for acceptance of responsibility. However, the Probation Department’s presentence report recommended that the defendant not receive the acceptance of responsibility sentence reduction, claiming that his continuing engagement in fraudulent loan transactions in October, 1996 after he had been arrested on similar state charges in June, 1996 precluded a finding that he had "clearly demonstrated acceptance of responsibility." (Id., at 639). The trial court agreed with that recommendation and denied the sentence reduction, reasoning that the defendant "did not voluntarily terminate or withdraw from criminal conduct after" he had been arrested on those charges. (Id.).

In an earlier appeal, a panel of the Sixth Circuit affirmed the trial court’s decision, over the dissent of Judge Kennedy. (See, U.S. v. Jeter, 183 F.3d 480 (1999)). Upon a petition for rehearing, the same panel reversed, in this decision written by Judge Kennedy. The panel now concluded that its earlier decision was wrong; and it vacated the sentence and remanded for resentencing.

This time around, the Court focused on the fact that, at the time the defendant committed his additional State crimes in October, 1996, he was unaware of any pending or planned Federal indictment. Thus it held that the district court "may not use [the defendant’s] preindictment state crimes as a basis for denying him a reduction for acceptance of responsibility on the federal charges. We believe that the defendant must be on notice that the federal government has an interest in his or her affairs before § 3E1.1 comes into play." (Id., at 639-40).

The Court continued: "Allowing a district court to deny a sentencing reduction for acceptance of responsibility solely because he committed the federal crimes after his arrest and indictment on state crimes would place any defendant who has a prior record of similar crimes at risk of having the district court deny a reduction for acceptance of responsibility, even though the defendant has pled guilty early in the proceedings and cooperated with the government throughout the federal investigation. Such an approach could deter defendants from pleading guilty and encourage them to take their cases to trial, a position contrary to the underlying purpose of reducing unnecessary trials and conserving resources." (Id., at 640).

It then concluded: "Despite our hesitance to adopt a bright-line rule in the case of a guilty plea, we require that there be some conduct that the court can find is inconsistent with that specific acceptance of responsibility referred to in the Commentary, namely the acceptance of the guilty plea. To be denied an acceptance of responsibility reduction for similar crimes committed before federal indictment without some specific finding that the crimes are inconsistent with that acceptance of responsibility is contrary to the Commentary, which favors a guilty plea as "significant evidence" of acceptance of responsibility unless defendant's inconsistent conduct outweighs that acceptance. U.S.S.G. § 3E1.1, app. note 3. It seems to us that to extend the denial of acceptance of responsibility reduction to similar criminal conduct before the defendant has been arrested on federal charges is to penalize the defendant for a criminal disposition, not because he has not accepted responsibility to the federally charged conduct." (Id., at 641).

Back to Table of Contents


United States v. Garcia, 182 F.3d 1165 (10th Cir. 1999)

This case is noted for its detailed analysis of an important sentencing issue: Does the assertion of an entrapment defense at trial bar the receipt of an acceptance of responsibility sentence reduction, under U.S.S.G. § 3E1.1, as a matter of law? In addressing that issue, the Court observed that "[t]he entrapment defense is founded upon the rule of statutory construction that prohibits literal interpretation of a statute that produces absurd results." (Id., at 1172). It then concluded that "[g]iven that the entrapment defense emanates from such a rule of statutory construction, we believe that a sentencing court may apply an acceptance of responsibility reduction to a defendant who asserts the entrapment defense." (Id., at 1173).

In rendering that decision, the Tenth Circuit joined with a clear majority of the Circuits; but it noted that there is a significant Circuit split on the issue; and this decision is particularly noted for its comprehensive review of the law in the other Circuits. The Court summarized those conflicting decisions as follows:

"The Third, Sixth, Ninth, and Eleventh Circuits have concluded that the entrapment defense and the acceptance of responsibility reduction are not necessarily incompatible. See U.S. v. Demes, 941 F.2d 220, 222 (3d Cir. 1991) (‘[I]t is conceivable to hypothesize a case in which a plea of entrapment would not be inconsistent with the acceptance of responsibility . . . .’); U.S. v. Fleener, 900 F.2d 914, 918 (6th Cir. 1990) (‘[W]e find that the district court did not err in considering a reduction for acceptance of responsibility even though [the defendant] raised an entrapment defense at trial. Such a defense is no less inconsistent with the Guidelines provision than is a plea of not guilty, which does not raise an absolute bar to a court's consideration.’); U.S. v. Ing, 70 F.3d 553, 556 (9th Cir. 1995) (‘The assertion of an entrapment defense is not necessarily incompatible with acceptance of responsibility.’); U.S. v. Davis, 36 F.3d 1424, 1435 (9th Cir. 1994) (‘[T]he district court could not have found that [the defendant] had not accepted responsibility solely because he presented an entrapment defense at trial.’); Joiner v. U.S., 103 F.3d 961, 963 (11th Cir.) (‘[The defendant] would not have been barred as a matter of law from receiving an adjustment merely because he asserted an entrapment defense at trial, even though some courts have viewed the assertion of an entrapment defense as the virtual antithesis of acceptance of responsibility. Rather, as with cases involving any other defense, whether a defendant has accepted responsibility is a fact-based question which requires the district court to carefully review all of the evidence bearing on a particular defendant's contrition."). The First Circuit seems to have reached the same conclusion. See U.S. v. Ellis, 168 F.3d 558, 564 (1st Cir. 1999) ("In some cases, defenses relating to intent may yet qualify for the acceptance of responsibility reduction.")

"On the other hand, the Fifth and Eighth Circuits have held that an entrapment defense and a § 3E1.1 reduction are necessarily incompatible. See U.S. v. Brace, 145 F.3d 247, 265 (5th Cir.) (en banc) (‘[A]n entrapment defense is a challenge to criminal intent and thus to culpability. Accordingly, this is not one of those "rare situations", contemplated by the guideline commentary, in which a defendant may proceed to trial and still satisfy § 3E1.1(a).’); U.S. v. Chevre, 146 F.3d 622, 625 (8th Cir. 1998) (‘We believe that "[w]here a defendant persists in asserting entrapment, she cannot also claim acceptance of responsibility".’) (quoting U.S. v. Simpson, 995 F.2d 109, 112 (7th Cir. 1993)).

The D.C. Circuit comes very close to holding that the entrapment defense is incompatible with acceptance of responsibility, but it has left the door just slightly ajar on that issue. See U.S. v. Kirkland, 104 F.3d 1403, 1406 (D.C. Cir.) (‘It may be that a situation could be presented in which an entrapment defense is not logically inconsistent with a finding of a defendant's acceptance of responsibility, even though we doubt it (that three of our sister circuits seem to think so is sufficient reason to be somewhat cautious), but certainly defense counsel's argument before the district court did not raise it.’).

The Seventh Circuit appears to be split internally. Compare U.S. v. Corral-Ibarra, 25 F.3d 430, 440 (7th Cir. 1994) (finding that an entrapment defense if pleaded in good faith ‘may possibly qualify’ for a § 3E1.1 reduction, but in such a case ‘a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct), with U.S. v. Rector, 111 F.3d 503, 508 (7th Cir. 1997) (‘[T]he adjustment [for acceptance of responsibility] is rarely available to those who assert entrapment, a defense that by its nature tends to preclude the acceptance of responsibility. Essentially, the problem is that asserting entrapment is a denial rather than an acceptance of responsibility. A defendant asserting such a defense is saying, in effect, "I did it but it was somebody else's fault that I did it." That is the antithesis of remorse or acceptance of responsibility.’), . . . and U.S. v. Simpson, 995 F.2d 109, 112 (7th Cir. 1993) (‘Where a defendant persists in asserting entrapment, she cannot also claim acceptance of responsibility.’), and U.S. v. Emenogha, 1 F.3d 473, 482 (7th Cir. 1993) (same).

The Second Circuit has noted, but has yet to address the issue. See U.S. v. Rosa, 17 F.3d 1531, 1552 (2d Cir. 1994) (expressly refusing to determine ‘whether a defendant who claims "sentencing entrapment" may ever receive the two-point reduction’). (Id., at 1171-72, n. 1)

Back to Table of Contents


United States v. Rudolph, 137 F.3d 173 (3rd Cir. 1998)

The defendant in this case was a former INS agent who was convicted of bribery and the sale of false "green cards."  One of his challenges to his sentence was that the district court had erred by increasing his  offense level by two levels under U.S.S.G. § 2C1.1(b)(1) based on his admissions to his probation officer that he had accepted two additional bribes that were not the subject of his charged crimes.  He argued that he faced a "catch-22" situation because he believed that he would have incurred the displeasure of his probation officer and been ineligible for the two-level downward adjustment for acceptance of responsibility if he had refused to answer truthfully the probation officer's questions concerning the two uncharged bribes; and, therefore, on the advice of counsel he chose to speak truthfully.  "Big Mistake" ruled the Court.  Section § 3E1.1 of the Guidelines specifically permit a defendant to "remain silent in respect to relevant conduct beyond the offense of conviction without affecting his ability to obtain a reduction under this subsection."  Thus, the Court held that, despite what counsel may have advised, the defendant "did not need to offer information on, or even respond to, questions concerning relevant conduct beyond the strict parameters of his offense of conviction."

Back to Table of Contents


United States v. Marroquin, 136 F.3d 220 (1st Cir. 1998)

In this case Judge Francis Boyle of Rhode Island showed blind allegiance to the principle that justice demands eking out the maximum possible penalty, even if unsupported by the facts.  The issue here was whether the defendant was entitled to the third one-level sentence reduction for acceptance of responsibility provided for in U.S.S.G. § 3E1.1(b)(2).  That Section requires the court to decrease a qualifying defendant's sentence by a full three levels if he has "timely notifi[ed] authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently."

On February 1, 1995, the defendant was indicted on an 18-count indictment charging various drug offenses; and the case was set down to be called for trial on April 13, 1995.  On February 10 and March 5 the defendant filed a series of "routine" pre-trial motions; and, although the Government responded to all but one of those motions, the court never ruled on any of them.  On April 3, 1995, the day after the Government's last response, the defendant pled guilty.  At the defendant's original sentencing, he filed a motion for a full three-level acceptance of responsibility sentence reduction.  The Government neither opposed that motion nor argued that the defendant had failed to plead guilty in a timely manner.  Still, "without mentioning the specific U.S.S.G. § 3E1.1(b) criteria", the district court stated that it was "prepared to allow the two-point reduction, not the three-point reduction under these circumstances."  (Id., at 222).

The defendant appealed that decision and, at the first appeal, the Government agreed that the district court had not properly applied § 3E1.1(b).  In an unpublished per curiam decision (see the Special Commentary above), the First Circuit vacated the sentence and directed the district court to resentence the defendant "after consideration of the § 3E1.1(b) criteria."

Judge Boyle remained obdurate.  He did hold a hearing to determine whether the defendant was eligible for the additional minuscule one-level sentence reduction, but he still denied the sentence reduction - even though the Government's lawyer declared that the Government's files "did not reflect any trial preparation on the government's part."  (Id., at 223).  Maybe, reasoned the court, but the Government did have to respond to all those pre-trial motions and the Government had performed a chemical analysis on the drugs involved.  Those factors proved that the government had engaged in significant trial preparation.

On this second appeal, the First Circuit firmly ruled that the denial of the third-level sentence reduction was an abuse of discretion and it directed Judge Boyle to grant the sentence reduction requested.  In fact, it stated that it could not "divine any evidence in the record that would support" the district court's ruling.  (Id., at 226-27) (Emphasis added.)  Perhaps the most significant part of the decision was the Court's discussion and clarification of Judge Selya's much quoted statement that "defendants who put prosecutors through their paces by loosing a heavy barrage of pretrial motions . . . usually cannot expect to receive the bonus discount."  (U.S. v. Dethlefs, 123 F.3d 39, 43 (1st Cir. 1997)).

The First Circuit forcefully stated: "The Guidelines do not force a defendant to forgo the filing of routine pretrial motions as the price of receiving a one-step decrease.  The motions here were all of a kind appropriate at this pre-trial stage."  (Id., at 225).  "Put another way, a defendant does not lose his right to the one-level decrease simply because his attorney has filed [eight] pre-trial motions to which the government responds."  (Id., at 224).  The Court also held that the Govern ment's chemical analysis did not demonstrate preparation for trial.  "Marroquin's plea nine days prior to the April 13 calendar call not only freed the court from having to schedule a trial date but also saved the court from considering Marroquin's eight pending pre-trial motions."  (Id., at 226)

Back to Table of Contents


United States v. Wright, 133 F.3d 1412 (11th Cir. 1998)

This is an important decision which appears to change radically the grounds upon which a defendant may be denied a sentence reduction for acceptance of responsibility under the provisions of U.S.S.G. § 5G1.2.  The defendant in this case was charged with one count of possessing machine guns in violation of 18 U.S.C. § 922(o) and one count of possessing unregistered destructive devices in violation of 26 U.S.S. § 5861(d).  The defendant requested, and the Government recommended as part of a plea agreement, that the district court grant him a sentence reduction for acceptance of responsibility.  The district court (Judge Evans) refused to do so.  At his sentencing, the defendant had argued that the statutes under which he was convicted violated his Second Amendment right to bear arms; and that as a member of a militia group he had a right to possess machine guns.  The defendant also argued that “the criminalization of his possession of machine guns and pipe bombs violate[ed] his right to privacy and an unenumerated ‘natural’ right to self-defense inherent in the Ninth Amendment.”  The district court concluded that those Constitutional challenges were without merit; and on that basis it refused to grant any sentence reduction.

In its earlier decision in this case (U.S. v. Wright, 117 F.3d 1265 (11th Cir. 1997) (Wright I)), the same panel from the Eleventh Circuit held that the district court had erred in denying the acceptance of responsibility sentence adjustment because, on its reading of the record, it was clear that “the district court [had] denied Wright a downward departure because it did not believe that his constitutional challenge was meritorious.”  (Wright I, id., at 1276).  Effectively, it concluded that the district court had denied the downward adjustment because “it did not believe the legal argument” that Wright’s counsel made.  Thus, it ruled that “[b]ecause  the asserted legal argument did not relate to Wright’s factual guilt, we conclude that the district court erred in using it as a basis for denying Wright a downward adjustment for acceptance of responsibility.”  (Wright I, id., at 1277).

The Government, which never has been fond of people who assert their Second Amendment rights or the right to belong to any militia group, promptly asked for a rehearing; and on that rehearing, the panel curiously reversed its earlier decision.  This time around the same panel suddenly concluded that the district court hadn’t really refused to grant the acceptance of responsibility sentence reduction because of the defendant’s Constitutional objections to his convictions.  Rather, as it now reread the record, “the district court’s refusal rested mainly  on the finding of fact that Wright’s demeanor did not evince remorse.”  (Id., at 1413).  Perhaps recognizing that this new interpretation of the record would raise skeptical eyes, the majority forged ahead into new territory.  It wrote: “[E]ven if the district court’s conclusion rested exclusively on Wright’s challenges to the constitutionality of his convictions, the district court’s refusal to reduce Wright’s offense level was permissible.”  (Id., at 1414).

Judge Kravitch dissented.  First, she disagreed with the majority’s revised conclusion that the district court had relied on anything but his constitutional challenge.  “Unlike the majority, I read [the record] to indicate that the district court denied Wright a downward adjustment solely because it did not find his constitutional challenge meritorious.”  (Id., at 1415) (Emphasis added).  But far more significantly, she categorically disagreed with the principle that a defendant can ever be denied a sentence reduction under § 3E1.1 “solely because he asserts a legal challenge to his conviction that is unrelated to factual guilt.”  (Id., at 1415).  Patiently, she examined each of the cases cited by the majority; and she concluded that they were inapposite because in each of those cases the objections raised by the defendant were factual - not legal - in nature and amounted to a denial of factual guilt.  Firmly, she wrote that the Eleventh Circuit has never held that “a district court may rely only upon a defendant’s legal challenge, such as a constitutional challenge to the statute defining the criminal conduct . . . in deciding not to grant a downward adjustment for acceptance of responsibility.”  The majority’s decision confirms that slowly, but inexorably, defendants are facing greater and greater risks if they dare speak out at sentencing hearings.

Back to Table of Contents


United States v. Corrigan, 128 F.3d 330 (6th Cir. 1997)

One of the issues raised in this telemarketing-fraud was whether the district court (Judge Wiseman) had erred when he granted a two-level sentence reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a), but refused to grant the additional one-level point for "super acceptance" of responsibility under U.S.S.G. § 3E1.1(b), on the grounds that the defendant had obstructed justice by urging a co-defendant not to cooperate with the Government.  Since the defendant otherwise qualified for the additional one level acceptance of responsibility reduction provided for in § 3E1.1(b), the Court abused its discretion by refusing to consider whether the defendant was entitled to the extra one-level reduction on grounds not applicable to that section.  In short, the Court approved a scenario in which a defendant could qualify for "super acceptance" of responsibility, even if he also received a two level enhancement of his sentence for obstruction of justice.

Back to Table of Contents


United States v. Smith, 127 F.3d 987 (11th Cir. 1997) (En Banc)

This is one of those shameful decisions that shows how an intemperate Court can create bad law - here the birth of a new, subjective standard by which the availability of the sentencing adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1 should be determined.

The defendant in this case was  charged with running a check-kiting scheme in violation of 18 U.S.C. § 1344; and he pled guilty.  The probation officer initially recommended that he receive a three level reduction for acceptance of responsibility; but, after the defendant objected to several paragraphs contained in his presentence report (PSR), the thin-skinned probation officer promptly withdrew her recommendation for any sentence reduction.  At sentencing, the district court (Judge Freeman) went along with the probation officer and refused to grant any adjustment for acceptance of responsibility. It imposed a sentence of 18 months imprisonment.

However, the Government immediately advised the court that it had used an incorrect offense level and that the correct sentence should have been in the 24-30 month range.  The court admitted its mistake, but stated that it was "reluctant" to increase the sentence once it had already been imposed.  Thus, it decided to grant a two-level acceptance of responsibility adjustment in order to keep the sentence at 18 months; but  it still declined to utilize the third one-level reduction provided for in U.S.S.G. § 3E1.1(b).  Although the Government did not appeal the partial grant of the acceptance of responsibility adjustment, the defendant did appeal - arguing that the district court had used an improper basis for denying him the third one-point reduction.

On the initial appeal, a panel from the Eleventh Circuit expressed concern that the district court's decision to deny the reduction had been based on the exercise of a legal right to object to the PSR.  Thus it remanded the case back to the district court for a rehearing to determine whether the district court had improperly precluded the defendant from receiving the additional one-point reduction provided for in U.S.S.G. § 3E1.1(b) on the grounds that defense counsel had raised legal objections to the PSR.  In its decision, that panel firmly held that "a defendant may not be denied a reduction under § 3E1.1 solely for exercising the right to challenge the legal propriety of his punishment under the criminal code and/or sentencing guidelines. . . . [I]t is impermissible to consider the challenge to the legal propriety of a sentence."  U.S. v. Smith, 106 F.3d 350, 352 (11th Cir. 1996).

The Eleventh Circuit was plainly peeved by this case.  In its mind, the defendant had already received a "windfall" which it stated "he did not deserve."  To emphasize its point, it not only vacated the original panel's remand, it also wrote some sweeping language about the standards by which the acceptance of responsibility adjustment should be governed.  First, it held that the quoted language from the earlier panel's decision "went too far."  It then continued: "Our case law permits a district court to deny a defendant a reduction under § 3E1.1 based on conduct inconsistent with acceptance of responsibility, even when that conduct includes the assertion of a constitutional right. . . . Therefore, we hold that a district court may consider the nature of such challenges along with the other circumstances in the case when determining whether a defendant should receive a sentence reduction for acceptance of responsibility."  (Id., at 989) (Emphasis added).

In fairness, the Court did conclude that the defendant's objections in this case were factual - not legal - in nature; and that they constituted a denial of fraudulent intent with respect to both offense conduct and relevant conduct.  On the other hand, the sweeping scope of the Court's ruling went far beyond what was necessary.  Previously, a defendant was free to raise objections to his PSR, without risk of penalty, so long as those objections were based on "the assertion of a constitutional right."  Now, at least in the Eleventh Circuit, the test has become whether the objection is deemed proper based on a vague, subjective and after-the-fact evaluation of the "nature of such challenges along with the other circumstances of the case."  Such a slippery rule will certainly freeze many defendants into silence.

Back to Table of Contents


United States v. Dethlefs, 123 F.3d 39 (1st Cir. 1997)

The defendants in this case were charged with a series of drug and tax offenses; and, shortly before the scheduled trial date, they decided to plead guilty.  That decision pleased Judge Carter enormously.  The Portland courthouse was about to undergo a long-planned rehabilitation; and Judge Carter concluded that he would have to transport his entire staff to Bangor to hear the case - a prospect he did not relish since he estimated that the trial would have taken four to six months, "spread over a period spanning ten months to a year."  He therefore openly announced that he would be receptive to an extraordinary sentencing departure if the defendants agreed to plead guilty "to recognize the alleviation of an immense load upon the time, effort and resources" of the Court.  (Id., at 41)

At sentencing, Judge Carter awarded the defendants a full three-level acceptance of responsibility discount pursuant to the provisions of U.S.S.G. § 3E1.1(b)(2) - even though the defendants waited until two weeks before the trial was scheduled to begin to change their pleas; and even though the defendants had previously loosed what the First Circuit described as "an epidemic of [pre-trial] motions."  (Id., at 41).  He also rewarded the defendants with additional, substantial "bonus" sentencing reductions because their actions had conserved judicial resources to an extraordinary degree and because they had the "courage" to do so "without having first secured any commitments as to sentencing."  In fact, in a typical Carterism, the judge described what the defendants had done with the colorful and unwittingly prescient statement that the defendants had agreed "to plead with their hearts in their throats . . . knowing that the sky is the limit and the judge determines the height."  (Id., at 47 n. 6).

The Government, of course, immediately appealed.  It "strenuously" protested the defendant's entitlement to any bonus, arguing that pleas entered more than a year after indictment and only two weeks before trial cannot qualify as extraordinary enough to remove the case from the Guidelines' "heartland."

The First Circuit stated that the departures implicated the reach of two Guidelines,  §§ 5K1.1 and 3E1.1; but it quickly dismissed 5K1.1 as an appropriate grounds because that section deals with assistance to the prosecution - not assistance to the judicial system.  It then observed that § 3E1.1 was "closer to the mark" because that section "rewards the efficient allocation of judicial resources."  It also agreed that "in theory" a guilty plea which conserves judicial resources and thereby facilitates the administration of justice "is a mitigating feature on which a court may predicate a downward departure" (id., at 44); although it acknowledged that this issue has generated disagreement among the circuits.

Turning one by one to the factual basis for the special departures granted in this case, the Court flatly held that Judge Carter's conclusions "do not justify the dispensing of wholesale departures."  The fact that the case was complex and involved multiple defendants was not so unusual because "multi-defendant criminal cases are mother's milk in the federal courts."  It questioned the accuracy of Judge Carter's estimate about how disruptive the trial would be and how long it would take; and it concluded that any "net savings to the justice system were considerably more modest than the [district] court projected."  Finally, the Court scoffed at Judge Carter's suggestion that the defendants had shown any special courage in entering pleas without knowing what the ultimate sentence would be; and it commented that "pleading straight up is commonplace."  In the end, the Court concluded that the award of the third-level acceptance of responsibility was not clearly erroneous; but that the bonus departures were clearly erroneous, and it remanded the case back to the somewhat chagrined Judge Carter for resentencing.

Back to Table of Contents


United States v. Wright, 117 F.3d 1265 (11th Cir. 1997)

The defendant in this case was charged and convicted of possessing machine guns in violation of 18 U.S.C. § 922(o).  The defendant was a member of a militia organization; and, initially, he filed a motion to dismiss the indictment on the grounds that the charging statutes violated his Second Amendment constitutional rights to possess the weapons.  Although the Government recommended that he receive a two level downward adjustment in his sentence for acceptance of responsibility, the district court (Judge Orinda Evans) refused to grant the sentence adjustment principally on the grounds that it did not believe the defendant's legal argument that he had a right to possess the guns.

On appeal, the Eleventh Circuit reversed - stating that the district court had not relied "on permissible factors such as [the defendant's] dishonesty, lack of remorse, or insincerity" - but rather on the defendant's legal argument.  (Id., at 1276-77). The Court held that: "An otherwise deserving defendant cannot be denied a reduction under § 3E1.1 solely because he asserts a challenge to his conviction that is unrelated to factual guilt, such as a constitutional challenge to the applicability of the statute to his conduct."  (Id., at 1275).

Back to Table of Contents


United States v. Guerrero-Cortez, 110 F.3d 647 (8th Cir. 1997)

Among the many issues raised in this appeal, one that stands out relates to the "acceptance of responsibility" sentence reduction contained in U.S.S.G. § 3E1.1(a). Here, one of the defendants argued that he was entitled to a full three-level reduction under that section even though the case ultimately went to trial because twice before trial he attempted to plead guilty for his involvement in two kilos of cocaine. The Government, however, refused to accept the plea offer because the defendant would not accept responsibility for a conspiracy to distribute five or more kilos of cocaine. After the failed attempt to enter a plea bargain, a jury found the defendant guilty on all counts. The jury made no specific finding on the amount of cocaine with which the defendant was involved; but at sentencing the court made the determination that the defendant was only involved with two kilos of cocaine. Despite that finding, the district court summarily denied any reduction for acceptance of responsibility, stating that the defendant's efforts to accept responsibility for the two kilos came too late; it concluded that those efforts came at the time of sentencing, not at the time of trial.

On appeal, the Eighth Circuit reversed. It held that the district court had "failed to fully consider the issue" and that its conclusion that the defendant had failed to attempt to plead guilty earlier was unsupported by the record. Here, it concluded that the defendant was "at all times" ready to plead guilty to two kilograms and that "by refusing to accept Soler's guilty plea, the government gave Soler no choice but to go to trial. . . . Given these facts, it was clearly erroneous for the district court to conclude that Soler's acceptance of responsibility came at sentencing, and not at the time of trial." (Id., at 656) The Court also emphasized that under the commentary to § 3E1.1 "a defendant is not required to volunteer, or affirmatively admit, relevant conduct beyond the offense of conviction in order to obtain a [sentence] reduction . . ." and that a defendant may demonstrate acceptance of responsibility even though he goes to trial and is convicted, which may occur when he asserts and preserves issues that did not relate to factual guilt." (Id.)

Back to Table of Contents


United States v. Chee, 110 F.3d 1489 (9th Cir. 1997)

This case relates to a defendant's eligibility for a three-level acceptance of responsibility sentence reduction under U.S.S.G. § 3E1.1(b).  Here, although the Ninth Circuit refused to reverse the lower court's determination not to grant the defendant the third-level reduction, the case is noted for Judge' Fernandez' dissent.  He was critical of the majority's decision because the denial of the third level was based on the claim that the defendant had "not completely accepted responsibility for his actions."  He argued that the district court's analysis was wrong because it overlooked the fact that it ultimately decided that the defendant did accept his responsibility by granting him a two-level reduction.  Citing U.S. v. Stoops, 25 F.3d 820 (9th Cir. 1994), he stated: "[T]he inquiry for the third level does not involve a reconsideration of the factors leading to the two-level reduction; the only issue for the third level is timing."  (Id., at 1495).  Thus, in his opinion, the district court was obligated to give the third-level reduction because it had already determined that the defendant had accepted responsibility.

Judge Fernandez also responded to the Government's assertion that the third-level increase was inappropriate because it had to prepare for trial.  In this case, the defendant went to the police within 12 hours of his crime and gave them a full statement about his assault.  "We have previously . . .  held that a defendant who confessed soon after the crime but then held up the plea process by challenging [some aspect of the crime] was still entitled to a three-level reduction for acceptance of responsibility. . . . In Stoops, we explained that ‘a defendant qualifies under subsection (b)(1) if he timely provides complete information , whether or not he . . . timely notifies the government of his intent to plead guilty.' . . . Under Stoops, the fact that he later challenged the legal effect of some of his admissions does not obviate the fact that he quickly and freely confessed to the assault."

Back to Table of Contents


United States v. Smith, 106 F.3d 350 (11th Cir. 1996)  

The issue in this case was whether a defendant may be denied a sentence reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b) when he admits the factual basis for his guilt, but challenges the legal basis for the sentence. Here, the defendant pled guilty to bank fraud in the nature of a check kiting scheme. His presentence report recommended that he be charged with some $450,000 in losses due to his conduct. The defendant objected and argued that the Government had failed to establish that he had the requisite fraudulent intent for the charged offense when he deposited nine checks totaling some $450,000 in his checking account; and that he should only be held responsible for $35,500 which he withdrew from his account after the bank had advised him that checks drawn on that account would not be honored. The trial court refused to give him the additional one-point sentence reduction because his counsel had objected to the amount of loss determination.

On appeal, the Eleventh Circuit agreed that the trial judge had committed legal error. It observed that "a defendant who admits factual guilt need not silently accept any punishment that the government chooses to mete out, however incommensurate with the underlying conduct. . . . Otherwise, the constitutional rights to effective assistance of counsel and due process are illusory. Thus, . . . a defendant may not be denied a reduction under § 3E1.1 solely for exercising the right to challenge the legal propriety of his punishment under the criminal code and/or sentencing guidelines." (Id., at 351-52).  
 

[Editor's note: In a subsequent en banc decision, noted above, the Eleventh Circuit ruled that the foregoing language "went too far"; and it vacated this decision, holding that a district court may consider "the nature of such challenges along with the other circumstances in the case when determining whether a defendant should receive a sentence reduction for acceptance of responsibility."  See, U.S. v. Smith, 127 F.3d 987, 989 (11th Cir. 1997)].

Back to Table of Contents


United States v. Kirkland, 104 F.3d 1403 (D.C.Cir. 1997)

Once again the D.C. Circuit affirmed its hard-and-fast rule that a claim of entrapment defeats any chance of a sentence reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. It also poked fun at decisions from the Third, Sixth and Ninth Circuits which have suggested that raising an entrapment defense does not automatically bar an acceptance of responsibility sentence reduction.

Back to Table of Contents


United States v. Spriggs, 102 F.3d 1245 (D.C.Cir. 1996) 

One of the many issues raised in this case was whether a defendant who asserts the defense of entrapment is entitled to a sentence reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. Although the D.C. Circuit declined to rule on that issue, it noted that a number of Circuits (including the Third, Seventh and Tenth) have held that "where a defendant persists in asserting a defense of entrapment, she cannot also claim acceptance of responsibility"; whereas the Ninth Circuit has ruled in U.S. v. Davis, 36 F.3d 1424, 1435-36 (9th Cir. 1994) that "the district court could not have found that [the defendant] had not accepted responsibility solely because he presented an entrapment defense at trial." 

Back to Table of Contents


United States v. Smith, 101 F.3d 98 (11th Cir. 1996)

This is an important case dealing with the concept of reductions in a sentence for "acceptance of responsibility" under the provisions of U.S.S.G. § 3E1.1. In the eyes of many prosecutors, probation officers, and, sadly, judges, any defendant who has the temerity to dispute the Government's version of the law or the facts must be punished by denying him any reduction for acceptance of responsibility. In this bank fraud/check kiting case, the probation officer initially recommended that the defendant receive the full three-level reduction for acceptance of responsibility. When the defendant's counsel objected to the calculation of "loss" as set forth in the Presentence Report, the thin-skinned probation officer immediately rescinded his recommendation for a three-level reduction and Judge Freeman meekly acquiesced.

On appeal, the Eleventh Circuit disabused that vindictive philosophy with strong words. While it acknowledged that a defendant "generally is not entitled to a reduction for acceptance of responsibility if he puts the government to its burden of proof by denying the essential elements of guilt", it also put limits on that rule. It observed that defense counsel must be given a reasonable opportunity to contest the legal basis for a sentence; otherwise, the constitutional rights to effective assistance of counsel and due process are "illusory." Thus it firmly ruled that a defendant may not be denied a sentence reduction under § 3E1.1 for exercising the right to challenge the legal propriety of his sentence "under the criminal code and/or sentencing guidelines." It then concluded that "a defendant who admits factual guilt need not silently accept any punishment that the government chooses to mete out, however incommensurate with the underlying conduct." (Id., at 100)

Back to Table of Contents


United States v. Kraig, 99 F.3d 1361 (6th Cir. 1996) 

This is one of those rare cases in which a court upheld a two level reduction in the offense level for acceptance of responsibility under U.S.S.G. § 3E1.1, even though the defendant went to trial and did not even first request such a reduction until the sentencing hearing. The Government argued that the defendant had maintained his innocence before, during and after trial, and had only accepted partially accepted responsibility after his conviction. The Court ruled that the district court was in the best position to gauge the defendant's state of mind and to assess his credibility and 'this Court will not lightly overturn that finding." 

Back to Table of Contents


United States v. Calhoon, 97 F.3d 518 (11th Cir. 1996) 

One of the issues discussed in this case was the defendant's claim that the district court's refusal to grant him an adjustment for acceptance of responsibility after he went to trial amounted to a penalty for the exercise of his Sixth Amendment right to trial by jury. The Court rejected that claim and, citing its ruling in U.S. v. Castillo-Valencia, 917 F.2d 494, 501 (11th Cir. 1990), ruled that "a reward in the form of an adjustment for acceptance of responsibility for those who plead guilty 'does not equate to with punishing one who does not follow such a course'." 

Back to Table of Contents


United States v. Thomas, 97 F.3d 1499 (D.C. Cir. 1996) 

This case shows one of the penalties of claiming the defense of entrapment. Here, the Court affirmed the district court's decision not to grant any sentence reduction for acceptance of responsibility under § 3E1.1(a) because the defendant had asserted that he had been entrapped into committing the crime in question. The Court observed that the defendant had not offered one word of remorse, of culpability or of human error. It then concluded that "To say 'It's not my fault, but I accept the responsibility,' is to engage in self-refutation." (Id., at 1501). 

Back to Table of Contents


United States v. Flores, 93 F.3d 587 (9th Cir. 1996)

This is one of those rare cases in which a Court of Appeals reversed a decision by a district court to deny the defendant a sentence reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. The somewhat hard-nosed Judge Tanner, ignoring the fact that the defendant did not speak English well and had only a third grade education, and ignoring the Government's recommendation that the defendant should receive a sentence reduction, found that the defendant's repeated expressions of remorse "failed to establish his acceptance of responsibility." The Ninth Circuit ruled that was clear error and noted that "The factual inquiry required by the guidelines does not require a penetrating judicial examination of the criminal's soul." (Id., at 590)

Back to Table of Contents


United States v. Nuñez-Rodriquez, 92 F.3d 14 (1st Cir. 1996) 

This decision contains a detailed review of a frequently recurring and important issue: Can a defendant qualify for an "acceptance of responsibility" sentence reduction under § 3E1.1 of the Guidelines without becoming an informer?

Here, the district judge Lafitte recited a number of reasons why he refused to grant a sentence reduction under § 3E1.1, including his conclusion that the defendant had offered inconsistent versions of the relevant events; but on appeal the First Circuit focused on a series of colloquies which made it plain that the judge was of the opinion that the defendant's ongoing refusal to disclose the names of other collaborators was inconsistent with full acceptance of responsibility. The defendant had stated that he was afraid to identify his collaborators; and that the district court had erred by using a criterion that was relevant to § 5K1.1 departures but not to the determination of his remorse for his own conduct under § 3E1.1.

Citing a number of cases, the First Circuit said that "the question whether U.S.S.G. § 3E1.1 permits the ‘informer' criterion to be considered in determining ‘acceptance of responsibility' is unsettled at best"; and it concluded that a court may weigh, along with all other relevant evidence, a defendant's refusal to provide such cooperation in determining "acceptance of responsibility." Nevertheless, the Court concluded that the sentence in this case had to be vacated because "other observations by the district court remain open to the plausible understanding that a defendant must always, at least where an offense results in death, ‘inform' on his accomplices in order to qualify for a § 3E1.1 adjustment, regardless of any other circumstances in the case. . . . [S]uch a per se requirement would prove as inconsistent with the letter and spirit of section 3E1.1 as its counterpart." (Id., at 23).

The Court also noted that "section 5K1.2 provides that '[a] defendant's refusal to assist authorities in the investigation of other persons may not be considered as an aggravating sentencing factor.' The October 1988 version of U.S.S.G. § 5K1.2 included a single commentary: 'The Commission . . . rejected the use of a defendant's refusal to assist authorities as an aggravating sentencing factor. Refusal to assist authorities based upon continued involvement in criminal activities and association with accomplices may be considered, however, in evaluating a defendant's sincerity in claiming acceptance of responsi'ility.' The Sentencing Commission deleted this commentary in November 1989, explaining that it intended 'to delete the unnecessary commentary containing an unclear example.' U.S.S.G. App. C, amend. 292, at 178 (November 1995)

"The current version of section 5K1.2 does not preclude the 'informer' criterion under section 3E1.1. First, given its location in the guidelines section dealing with 'departures,' section 5K1.2 clearly forbids reliance on a defendant's failure to identify accomplices as a basis for an upward departure. But it neither expressly nor impliedly forbids such reliance for purposes of sentencing adjustments such as section 3E1.1. In all events, since any adjustment under section 3E1.1 can only be downward, the 'informer' criterion under section 3E1.1 can never constitute an aggravating sentencing factor, only a mitigating factor. See, e.g., United States v. Gordon, 895 F.2d 932, 936_37 (4th Cir.) (§ 3E1.1 reduction bespeaks 'mitigation,' not aggravation), cert. denied, 498 U.S. 846 (1990).

"Notwithstanding the November 1989 amendment, it remains clear that the commentary to section 5K1.2 contemplated that sentencing courts were to consider the 'informer' criterion under section 3E1.1 in appropriate circumstances. Significantly, the 1988 version purported to allow the court to deny a section 3E1.1 adjustment where the defendant did not identify accomplices because his criminal associations were ongoing. Further, it seems that the 1989 amendment deleted the 'unclear' commentary not because the Commission had altered its view on the propriety of the section 3E1.1 practice described in the commentary, but because it concluded that the current text in sections 3E1.1 and 5K1.1 was sufficiently clear to support such a sentencing practice - without further elaboration. We therefore conclude that the 1989 amendment was meant to clarify, not to effect a substantive change in sentencing policy. See United States v. Campbell, 61 F.3d 976, 985 (1st Cir. 1995) (court should presume that Commission did not intend substantive change where guideline amendments are unaccompanied by language declaring intention to abandon earlier sentencing practice), cert. denied, 116 S. Ct. 1556 (1996). This conclusion is confirmed by the Commission's failure to effect a conforming 1989 modification to the nonexhaustive listing in section 3E1.1." (Id., at 21-22)

Back to Table of Contents


United States v. Childers, 86 F.3d 562 (6th Cir. 1996) 

In 1992, postal inspectors questioned the defendant regarding allegations that he had stolen mail from post office boxes; and he immediately confessed and agreed to make restitution. He was not indicted however for some two years after that confession; and during the intervening two years he was charged by state authorities on some unrelated credit card fraud charges. When he was finally charged by the Feds for the initial mail charges he pled guilty. At his sentencing the court denied him any sentence reduction on the grounds of acceptance of responsibility based on his other conduct after his confession but before his arrest on the mail charges. Essentially, the defendant claimed that acceptance of responsibility must be based solely upon events following his arrest. While it noted that there was no case law on the subject, the Court rejected the defendant's argument. It said that because the defendant had "continued a course of conduct involving some of the same or similar offenses" after his original confession, the defendant was not entitled to any sentence reduction. The Court also observed that the Guidelines permit the reduction if the defendant "clearly demonstrates acceptance of responsibility for his offense" - and in this case the defendant accepted responsibility on two occasions. Thus it held that the district court was entitled to consider the first acceptance of responsibility as a sign of the defendant's insincerity. 

Back to Table of Contents


United States v. Patino-Cardenas, 85 F.3d 1133 (5th Cir. 1996)

This case is noted because of its reminder that "silence is golden" and because of its analysis of the development of the current Guideline provision dealing with acceptance of responsibility, namely U.S.S.G. § 3E1.1. The defendant pled guilty to transporting aliens within the United States. The Presentence Report (PSR) recommended that he not receive any reduction in his sentence because he had not admitted "all the conduct comprising the offense charged." Although the defendant objected to that recommendation, Judge Hittner adopted the PSR "without further discussion" and denied the defendant any reduction in his sentence for acceptance of responsibility.

On appeal, the Fifth Circuit reversed. It joined a number of other Circuits in holding that, since the adoption of Guideline Amendment No. 459 in 1992, a defendant is not required to volunteer or affirmatively admit relevant conduct beyond the conviction offense in order to get a sentence reduction for acceptance of responsibility. Judge Garza concurred, but very reluctantly. He criticized Amendment 459 as one which "stand[s] in conflict with the general theory of punishment underlying the guidelines"; which is inconsistent with the "great deference" standard normally accorded to judges at sentencing; and which "effectively make[s] conduct beyond the offense of conviction irrelevant to a defendant's acceptance of responsibility. He also commented that the decision "for the first time interpret[s] this language to require reversal of a sentencing court's denial of a sentencing reduction for acceptance of responsibility, when that denial is based on a defendant's failure to admit conduct that is not charged in the indictment." He concluded by observing that "I find it hard to believe that the drafters of the guidelines intended that a sentencing court, supposedly deserving of 'great deference', would have no discretion to deny a reduction for acceptance of responsibility to a defendant who pleaded guilty, admitted the facts alleged in the indictment, and then, throughout the rest of the court's questions, stood in stony silence." (Id., at 1139)

Back to Table of Contents


United States v. Munoz, 83 F.3d 7 (1st Cir. 1996) 

In this case, Judge Boyle denied the defendant a one-level reduction in his sentence under U.S.S.G. § 3E1.1(b)(2) because his plea agreement was not formally entered until some two weeks after the case had been placed on the court's trial calendar. In denying the reduction, Judge Boyle focused on the court's ability to "allocate its resources efficiently" rather than on the Government's expenditure of resources in preparing for trial. On appeal, the First Circuit reversed. It ruled that while wasting judicial resources is a valid ground for denying the extra one-level sentence reduction, in this case the defendant had actually notified the court of his intent to plead guilty before the case was put on the trial calendar. Thus, the Court ruled that it was plain error for Judge Boyle to rule that the defendant's acceptance of responsibility was untimely. 

Back to Table of Contents


United States v. Forte, 81 F.3d 215 (D.C.Cir. 1996) 

In this case, Judge Williams discusses, very briefly, whether lying about a defendant's relevant conduct (as opposed to the offense of conviction) is an automatic bar to receiving a downward adjustment for acceptance of responsibility. In this case, the Judge refuses to vacate a lower court order that denied the downward adjustment; but it implies that lying about relevant conduct may not always be an absolute bar to an acceptance of responsibility adjustment. 

Back to Table of Contents


United States v. Thompson, 80 F.3d 368 (9th Cir. 1996) 

This case is noted because of the Court's strong statement that a defendant's eligibility for an acceptance-of-responsibility reduction does not turn on cooperation in the apprehension or prosecution of co-defendants. Citing U.S. v. McKinney, 15 F.3d 849, 854 (9th Cir. 1994), the court notes that "A defendant's degree of assistance in the prosecution of a codefendant is relevant only to his entitlement for a departure for substantial assistance under U.S.S.G. § 5K1.1. Where the defendant's refusal to assist authorities in the prosecution of his codefendants does not detract from his clear contrition for his own actions, he is still entitled to the acceptance of responsibility reduction." 

Back to Table of Contents


United States v. Magana-Guerrero, 80 F.3d 398 (9th Cir. 1996) 

One of this issues discussed in this case was Application Note 4 to § 3E1.1 which explains that conduct resulting in an enhancement of justice ordinarily indicates that the defendant has not accepted responsibility. The defendant argued that his lie to his pretrial services officer about his prior record should not disqualify him from an acceptance of responsibility adjustment because he told it before he pleaded guilty and because it had no bearing on relevant conduct. The Court rejected the argument, noting that had the defendant's deception prevailed he would have been entitled to a significantly lower sentence. It concluded that "lying with the hope of avoiding a degree of culpability or punishment is the very antithesis of acceptance of responsibility." (Id., at 402). Thus, it ruled that the district court had not erred by taking the lie into account in denying a downward adjustment for acceptance of responsibility. 

Back to Table of Contents


United States v. Byrd, 76 F.3d 194 (8th Cir. 1996) 

In this case the Court considers whether it can deny a reduction for acceptance of responsibility based on criminal conduct unrelated to the crime of conviction - here, a urinalysis test that indicated that the defendant had used marijuana. The Court notes that the Sixth Circuit has held, in U.S. v. Morrison, 983 F.3d 730 (6th Cir. 1993), that the provisions of § 3E1.1 relate to "acceptance of responsibility for his offense." Thus, that Court ruled that "considering unrelated criminal conduct unfairly penalizes a defendant for a criminal disposition, when true remorse for specific criminal behavior is the issue." Nevertheless, the Eighth Circuit rejects that approach and joins with decision in the First, Fifth, Seventh and Eleventh Circuits in holding that § 3E1.1 does not contain any restriction against considering unrelated criminal conduct in denying an acceptance of responsibility reduction. 

Back to Table of Contents


United States v. Arrington,  73 F.3d 144 (7th Cir. 1996)

The defendant in this case received a two point acceptance of responsibility reduction in his sentence under U.S.S.G. § 3E1.1(a); but was denied the "safety-valve" reduction on the grounds that he had "minimized his role" in the charged drug conspiracy.  On appeal, he argued that "if one is sufficiently candid to get acceptance of responsibility, it is contradictory to say that he minimized his role."  The Seventh Circuit addressed that issue and concluded: ‘Section 3553(f)(5) requires more cooperation than § 3E1.1(a):  § 3553(f)(5) requires the defendant to provide ‘all information . . .  concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan,' whereas § 3E1.1(a) requires that he admit ‘the conduct comprising the offense(s) of conviction.'  The distinction between the two is not insignificant.  Although § 3E1.1(a) forbids a defendant from falsely denying relevant conduct, . . .  it imposes no duty on a defendant to volunteer any information aside from the conduct comprising the elements of the offense. . . . In contrast, § 3553(f) states that a defendant must disclose ‘all information' concerning the course of conduct - not simply the facts that form the basis for the criminal charge.  Accordingly, the district court correctly held that § 3553(f)(5) requires more than § 3E1.1(a)" (Id., at 149).  Thus, in order to qualify for  relief under § 3553(f)(5) "a defendant must demonstrate to the court that he has made a good faith effort to cooperate with the authorities."

Back to Table of Contents


United States v. Townsend, 73 F.3d 747 (7th Cir. 1996)

The defendant in this case was granted a two point departure for "acceptance of responsibility" under U.S.S.G. § 3E1.1, but the sentencing judge refused to allow the third point permitted under subsection (b) because the judge observed that a defendant who "falsely denies or frivolously contests relevant conduct that the Court determines to be true has acted in a manner inconsistent with acceptance of responsibility." On appeal, the Seventh Circuit reversed and held that the language of § 3E1.1 is mandatory, not permissive. If the defendant is granted the initial two-level decrease for acceptance of responsibility and if he meets the qualifications of subsection (b), the sentencing judge has no discretion not to grant the extra one-level reduction; the defendant must get the additional reduction. 

Back to Table of Contents


United States v. Taylor, 72 F.3d 533 (7th Cir. 1995) 

Of the many issues explored in this case, one deals with the concept of "acceptance of responsibility" and it is a forceful reminder of the advantages of silence at sentencing. Prior to Nov. 1, 1992, a defendant could obtain a sentence reduction under § 3E1 of the Guidelines only if he accepted responsibility for his "criminal conduct", which included both the conduct underlying the offense and uncharged conduct related to that offense. In 1992, that section was changed by Amendment No. 459 to substitute the word "offense" for the term "criminal conduct". Here the Court reminds us that "silence remains an option." Quoting the Commentary to § 3E1, it notes that "a defendant is not required to affirmatively 'come clean' on relevant conduct in order to obtain a reduction." However, the court also notes that "if a defendant denies relevant conduct and the court determines that such conduct occurred, the defendant cannot claim to have accepted responsibility for his actions." (Id., at 551)

Back to Table of Contents


United States v. Wolfe, 71 F.3d 611 (6th Cir. 1995) 

The Court of Appeals refused to vacate a trial judge's determination not to grant any reduction in the defendant's sentence for acceptance of responsibility on the grounds that there was no "clear error." Noting that the defendant had "hedged in a number of ways", the Court cited two other cases which held that "acceptance of responsibility has to be an acceptance without excuses" and that a "grudging and incomplete admission, accompanied by an excuse to minimize his own culpability, does not indicate acceptance of responsibility." (Id., at 616)

Back to Table of Contents


United States v. Ing, 70 F.3d 553 (9th Cir. 1995) 

In this case, the defendant's PSI Report flatly stated that because the defendant had asserted the defense of entrapment, he was not entitled to a reduction in his sentence based on acceptance of responsibility. The district court agreed and denied any sentence reduction. On appeal, the Ninth Circuit holds that the assertion of an entrapment defense is "not necessarily incompatible with acceptance of responsibility" (Id., at 556); and the Court remands the case back to the District Court for reconsideration of whether the defendant should be entitled to a downward adjustment for acceptance of responsibility, based primarily on the timeliness of his plea. 

Back to Table of Contents


United States v. Leonard, 50 F.3d 1152 (2nd Cir. 1995) 

This decision contains an important analysis of what is required of a defendant to qualify for the three point Guideline reduction under U.S.S.G. § 3E1.1 (Acceptance of Responsibility). The district court had refused to grant the third point of the reduction, because the defendant apparently had failed to give truthful information about the conduct of others who were involved in his criminal activity. The 2nd Circuit notes that § 3E1.1 "focuses on the defendant's sincere remorse for his own misconduct, not his assistance to authorities in incriminating others." 

Back to Table of Contents


United States v. Meza, 938 F.Supp. 730 (D.Kan. 1996) 

The defendant in this case was sentenced on November 2, 1992, one day after the Guidelines were amended to provide for an additional one-point reduction for acceptance of responsibility. He filed a motion seeking the additional point and the Government opposed the motion on the grounds that (a) the motion was not timely, the defendant failed to provide any information pertinent to his investigation, and that he fled prior to his arrest. Judge Saffels noted that the defendant had already qualified for the first two-level adjustment under § 3E1.1(a) - and thus he automatically qualified for the additional one level reduction if he either timely provided information to the Government about his own involvement in the crime or timely notified the authorities that he intended to plead guilty. In this case, although the notice that he intended to plead guilty was not made until 14 days prior to the start of trial, it came one week after a hearing on his pre-trial motions at which time the court also set the date for trial. The court held that was sufficient to qualify for timely notice - and it rejected the Government's contention that he also had to provide information about his own involvement in the case.

Back to Table of Contents


United States v. Schultz, 917 F.Supp. 1343 (N.D.Iowa 1996) 

Judge Bennett gives one of his typically detailed and thoughtful analyses of an often ignored provision of the Guidelines, U.S.S.G. § 3E1.1(a), as he decides that, despite going to trial, the defendant is indeed still entitled to a sentence reduction for "acceptance of responsibility." He starts his opinion by stating: "This sentencing demonstrates the painful and Hobson-ian tension create by the United States Sentencing Guidelines between a criminal defendant's most precious constitutional right, the Sixth Amendment right to trial by jury, and his or her efforts to obtain a reduction in sentence for "acceptance of responsibility." In this case the defendant was convicted of conducting an illegal gambling business, and while he admitted that he violated State law, his principal defense on the federal charges was that he had not violated the Federal statutes because his conduct did not involve the requisite five persons necessary to establish Federal jurisdiction. Judge Bennett reviews a legion of Eighth Circuit cases on § 3E1.1; and he acknowledges that the Guidelines only permit this two level reduction to defendants who go to trial in "rare situations". He concludes, however, that even though the PSI Report did not recommend this adjustment, the nature of the defendant's defense, his conduct during trial and his sincere remorse warranted the departure. 

Back to Table of Contents


United States v. Robinson, 912 F.Supp. 212 (S.D.W.Va. 1996)

In this multi-issue case, the court rejects the defendant's request for any sentence reduction based on "acceptance of responsibility" under U.S.S.G. § 3E1.1 noting that "a defendant who falsely denies or frivolously contests relevant conduct is not entitled to reduction for acceptance of responsibility." 

Back to Table of Contents


Copyright © 1996-2001, Punch and Jurists, Ltd.