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Table of Contents

400 – Adjustments, Generally (Chapter 3)

400 – Adjustments, Generally (Chapter 3)
  • 410 Victim-Related Adjustments (§3A)
  • 420 Role in Offense, Generally (§3B)
  • 460 Obstruction of Justice (§3C)
  • 470 Multiple Counts (§3D)
  • 480 Acceptance of Responsibility, Generally (§3E)
  • 431 Cases Finding Aggravating Role
  • 461 Cases Finding Obstruction

Back to main table of contents

§482 Acceptance of Responsibility: As to “Related” Conduct

8th Circuit upholds denial of acceptance credit where defendant minimized relevant conduct. (482) Defen­dant pleaded guilty to receiving child pornography. At sentencing, the district court denied him any reduction for acceptance of responsibility under §3E1.1, because defendant falsely denied and minimized relevant conduct, in particular that his Dropbox account contained child pornography. The Eighth Circuit affirmed, ruling that de­fendant’s “frivolous factual contentions and his attempts to minimize his conduct” supported the denial of accept­ance credit. U.S. v. Hennings, __ F.4th __ (8th Cir. Jan. 21, 2022) No. 20-3483.

8th Circuit found defendant’s denial of relevant con­duct inconsistent with acceptance of responsi­bility. (482) Defendant pleaded guilty to possession of a firearm by a felon. In a pre­sentence inter­view, defendant admitted possessing another fire­arm. At sentencing, he denied that he possess­ed this firearm. The district court rejected this objection and enhanced defen­d­ant’s offense level because he poss­ess­ed two firearms other than the one that led to his plea. The district court denied defendant an acceptance-of-respon­si­bility reduc­tion because defendant “frivolously con­test[ed]” relevant conduct. The Eighth Circuit found that the district court had not erred in finding that defendant denied relevant conduct and that denying relevant con­duct was inconsis­tent with acceptance of responsibility. U.S. v. Goodson, __ F.3d __ (8th Cir. Apr. 15, 2019) No. 18-1515.

Commission allows acceptance reduction despite un­successful challenge to relevant conduct. (482) Citing concerns that some courts had interpreted Application Note 1(A) to §3E1.1 to preclude a reduction for accept­ance of responsibility where the defendant unsuccess­fully challenges relevant conduct, the Commission amended the note to add the words, “but the fact that a defendant’s chal­lenge is unsuccessful does not  neces­sar­ily establish that it was either a false denial or frivolous.”  Proposed Amend­ment 6, effective Nov. 1, 2018.

1st Circuit rejects acceptance reduction for defendant who denied relevant conduct and obstructed justice. (482)(492) Defendant pled guilty to bank robbery. The district court applied an obstruction of justice enhance­ment based on letters defendant wrote to his girlfriend in which he provided her with a “script” of what to say if called to testify. It also denied him an acceptance of responsibility reduction because defendant did not admit to relevant conduct (possession of a screwdriver during the robbery), and because a finding of obstruction of justice generally indicated that acceptance of responsi­bility should not be given. Defendant conceded that an obstruction enhancement was appropriate, but argued that he should have received the acceptance reduction. The First Circuit found no error. Defendant claimed that his case was extraordinary because he “unambiguously acknowledged his wrongdoing and ceased criminal acti­vities at the point of his change-of-plea.” However, the court’s finding that defendant had falsely denied posses­sing a screwdriver during the bank robbery cut against defendant’s claim that he “unambiguously acknowledged his wrongdoing.” The court also properly considered defendant’s conduct while incarcerated. U.S. v. D’Angelo, __ F.3d __ (1st Cir. Oct. 6, 2015) No. 14-1688.

5th Circuit denies acceptance reduction based on silence or refusal to answer questions about relevant conduct. (482)(484) Defendant pled guilty to marijuana charges. The PSR advised against an acceptance of responsibility reduction, noting that in his interview with probation officers, he initially said “he just wants to serve his time for the offense and go home, rather than answer questions about his involvement.” When he did agree to answer questions, he was hesitant to talk about the offense and minimized his involvement in the drug deliveries, even though the evidence indicated that his involvement was much greater. Defendant argued that it violated his rights under the Fifth Amendment to con­sider his silence or refusal to answer questions about relevant conduct when deciding whether to grant him an acceptance of responsibility reduction. Although the Supreme Court has deliberately left this question unre­solved, the Fifth Circuit found that its binding precedent doomed defendant’s argument. In U.S. v. Mourning, 914 F.2d 699 (5th Cir. 1990), the Fifth Circuit held that rewarding a defendant who expresses contrition and co­operates with the government is not the same as compel­ling him to incriminate himself. Consequently, any inference that the district court drew from the defendant’s silence for purposes of §3E1.1 was permissible. U.S. v. Preciado-Delacruz, __ F.3d __ (5th Cir. Sept. 15, 2015) No. 14-11023.

7th Circuit denies acceptance reduction where defen­dant denied relevant conduct. (482) Defendant pled guilty to being a felon in possession of a firearms. Over defendant’s objection, the court applied an enhancement based on its finding that defendant had pointed the load­ed gun at the head of Harris. Based on his denial of this conduct, the court also denied him a reduction for accept­ance of responsibility, finding that the gun-pointing was relevant conduct. The Seventh Circuit upheld the denial of the acceptance reduction. Defendant seemed to con­cede that, had he actually pointed the firearm at Harris, his actions would constitute relevant conduct. Therefore, since the panel previously ruled that the court did not err in finding that defendant pointed the loaded firearm at Harris, it followed that the district court did not err in denying the acceptance of responsibility reduction. U.S. v. Sandidge, __ F.3d __ (7th Cir. Apr. 20, 2015) No. 14-1492.

4th Circuit rejects acceptance reduction where defen­dant denied mental state for uncharged offense. (482) Defendant pled guilty to being a felon in possession of a firearm. The district court found that he had used the firearm in an attempted murder, and therefore applied the offense level for attempted murder. See §2K2.1(c)(1). Defendant disputed that he had the requisite mens rea for attempted murder and argued that the guideline for aggra­vated assault should have applied. Because defendant made this argument, the district court concluded that de­fendant had falsely denied relevant conduct, and declined to give him a reduction for acceptance of responsibility. The Fourth Circuit affirmed, holding that by disputing that he possessed the mental state necessary to commit the cross-referenced (but uncharged) offense of attempt­ed murder, defendant disputed “relevant conduct.” Acting with a particular mental state constitutes relevant conduct under §1B1.3(a)(1)(A). Thus, the court properly denied defendant credit for acceptance of responsibility. U.S. v. Burns, __ F.3d __ (4th Cir. Feb. 13, 2015) No. 13-4662.

1st Circuit says failure to give acceptance credit was offset by failure to find obstruction. (482) Defendant was convicted of smuggling aliens into the United States.  He was denied a reduction for acceptance of responsibility because he refused to admit that he had used a gun and had forced passengers from the boat, resulting in two deaths.  The 1st Circuit found it unnecessary to decide whether under the old version of § 3E1.1 a reduction could be denied based on a refusal to admit relevant conduct.  Even if the two point reduction should have been given, defendant’s false denial required a two point increase for obstruction of justice under § 3C1.1.  The two errors offset each other.  The fact that the government did not seek the 3C1.1 enhancement did not prevent the court from taking note of it in this context.  U.S. v. Hernandez-Coplin, 24 F.3d 312 (1st Cir. 1994).

 

1st Circuit rejects acceptance of responsibility where defendant obstructed justice. (482) The 1st Circuit found defendant did not win the “uphill battle” of proving that he was wrongly denied a reduction for acceptance of responsibility, in light of his obstruction of justice.  The only thing extraor­dinary about his case was his “temerity in continuing to press” for the reduction notwithstanding his failed effort to suborn perjury.  He was not denied the credit for refusing to admit relevant conduct.  While a defendant is not required to affirmatively admit rele­vant conduct, a court may properly consider whether a defendant who “mendaciously denies” relevant con­duct has acted in a manner inconsistent with accep­tance of responsibility. U.S. v. Gonzales, 12 F.3d 298 (1st Cir. 1993).

 

1st Circuit holds judge did not require de­fendant to accept responsibility for related conduct. (482) The 1st Circuit rejected de­fendant’s claim that he was denied a reduc­tion because he refused to accept re­sponsibility for the conduct underlying dis­missed counts.  Defendant attempted to con­vince the court that he was a mere “tagalong” in a conspiracy orches­trated by his co-defen­dant.  Defendant was actually a full partner.  The lower court denied the reduction because defendant attempted to minimize his in­volvement in the offense of conviction.  U.S. v. Ocasio-Rivera, 991 F.2d 1 (1st Cir. 1993).

 

1st Circuit rules court did not deny accep­tance of responsibility reduction based upon uncharged conduct. (482) The 1st Circuit rejected defendant’s claim that the district court improperly denied de­fendant a reduction for acceptance of responsibility based upon his failure to accept responsibil­ity for un­charged criminal conduct.  The Rule 11 hearing did not indicate that the judge be­lieved that defendant was charged with bank fraud rather than making false statements to a bank.  The two “fraud” refer­ences the judge made during the sentencing hearing could not be considered error in a case involving the making of false statements. U.S. v. Gregorio, 956 F.2d 341 (1st Cir. 1992).

 

1st Circuit denies credit for acceptance of re­sponsibility based on defendant’s continued criminal behavior. (482) The 1st Circuit ruled that the district court did not base its denial of credit for acceptance of responsibility on un­charged conduct.  The court stated that it thought defendant had not accepted responsi­bility for the present offense “or generally with respect to other legal requirements.”  This re­mark made it clear that the court did not re­quire defendant to accept re­sponsibility for the uncharged conduct.  Rather, it considered de­fendant’s later conduct as evidence that defen­dant did not accept responsibility for the in­stant offense.  “The fact that a defendant en­gages in later, undesirable behavior does not necessarily prove that he is not sorry for an earlier offense; but it certainly could shed light on the sincerity of a defen­dant’s claims of re­morse.”  U.S. v. O’Neil, 936 F.2d 599 (1st Cir. 1991).

 

1st Circuit holds defendant need only accept respon­sibility on the counts to which he pled guilty, not the dismissed counts. (482) Defen­dant pled guilty to one count the other 4 were dismissed.  The District Court refused to grant him a two point decrease because he refused to accept re­sponsibility for the dismissed counts.  The 1st Circuit held that the sentencing court’s inter­pretation of the guidelines was er­roneous, and re­manded the case for a determina­tion as to whether the defendant had sincerely ac­cepted respon­sibility on the count to which he pled.  A reduction can­not be predi­cated upon the de­fendant making self-in­criminating state­ments re­garding counts which were to be dis­missed pur­suant to a plea agreement.  The court stated that any other holding would pro­vide little incen­tive for a guilty plea.  U.S. v. Perez-Franco, 873 F.2d 455 (1st Cir. 1989).

 

2nd Circuit upholds acceptance reduction despite false denial of relevant conduct. (482) The government argued that in light of defendant’s testimony falsely denying his involvement in rele­vant conduct, it was error for the district court to find that he demonstrated acceptance of respon­si­bility. The Second Circuit upheld the reduction, since a false denial of relevant conduct is simply one factor among many to be weighed by a district court making the acceptance of responsibility de­ter­min­­ation. Note 3 suggests weighing the evidence favoring acceptance of responsibility against evi­dence of conduct inconsistent with acceptance of responsibility. The judge’s careful determination here, based on evidence such as defendant’s remorse, his guilty plea, and his confession on the stand, was not without foundation. U.S. v. Ruggiero, 100 F.3d 284 (2d Cir. 1996).

 

2nd Circuit says reduction may not be denied for refusal to help recover other guns. (482) Although defendant admitted that he illegally purchased and resold 36 firearms, he only pled guilty to offenses involving five of them.  The 2nd Circuit found that it was improper to deny defendant a reduction for acceptance of responsibility because he refused to assist the government in the recovery of the other 31 firearms.  The district court looked beyond the offense of conviction in evaluating defendant’s acceptance of responsibility;  however, neither application note 1(a) nor 1(e) to § 3E1.1 empowered it to do so.  Under circuit caselaw and application note 1(a), effective November 1, 1992, a defendant is only required to accept responsibility for the offense of conviction.  Note 1(e), which allows a court to consider a defendant’s assistance in the recovery of the fruits and instrumentalities of the offense, did not support the denial either.  U.S. v. Austin, 17 F.3d 27 (2nd Cir. 1994).

 

2nd Circuit denies reduction for failure to tell whole truth about offense of conviction. (482) Defendant was convicted of conspiracy to import cocaine after attempting to check on a canister of cocaine attached to the hull of a ship which had recently arrived in the U.S.  The court denied defendant a reduction for acceptance of responsibility because it did not believe his claim that he planned only to examine the canister and not to remove it from the hull.  The 2nd Circuit rejected defendant’s claim that the district could improperly denied the reduction because he failed to admit related conduct.  The denial was based on defendant’s failure to tell the whole truth about the offense of conviction.  The plan to remove the canister was not a separate offense from a plan to examine it.  They were both encompassed by the charge of conspiracy to import cocaine.  U.S. v. Reyes, 9 F.3d 275 (2nd Cir. 1993).

 

2nd Circuit denies acceptance of respon­sibility where judge disbelieved defen­dant’s explanation. (482) Defendant orga­nized a dockside diving expedi­tion to the hull of a ship to which a canister of co­caine had been affixed.  He claimed that his sole ob­jective was to determine whether the canister was still in place, and not to remove it and bring it ashore.  The district court found that although de­fendant had accepted responsi­bility for the bare es­sentials of the offense, his explanation was “unbelievable.” Therefore he denied credit for accep­tance of responsibility.  The 2nd Circuit affirmed, finding no violation of defendant’s 5th Amendment rights against self-incrimination.  The court rejected defen­dant’s position that a court may not look be­yond the acts disclosed by the defendant at the plea allocution.  Although a court may not compel testi­mony with respect to other of­fenses, it may require a candid and full ex­planation of the offense to which defendant pled guilty, and need not accept lies and equivocation.  U.S. v. Reyes, 9 F.3d 275 (2nd Cir. 1993).

 

2nd Circuit directs reconsideration of accep­tance of re­sponsibility in light of remand on drug quantity issue. (482) The district court had denied defendant a reduc­tion for ac­ceptance of responsibility since defendant had only acknowl­edged responsibility for two kilo­grams of cocaine, and the jury had found de­fendant responsible for five kilograms.  How­ever, the 2nd Circuit had re­manded the case for the sentencing judge to make its own inde­pendent determination of the quantity of co­caine involved in the offense.  Therefore, the appellate court directed the district court to reassess de­fendant’s entitlement to an accep­tance of responsibility re­duction in light of its own findings.  U.S. v. Jacobo, 934 F.2d 411 (2nd Cir. 1991).

 

2nd Circuit affirms denial of acceptance of responsibil­ity reduction despite reliance on im­proper rea­son. (482) Defendant contended that the dis­trict court im­properly denied him a reduction for ac­ceptance of responsi­bility based upon his failure to ac­cept conduct for which he was not convicted.  The 2nd Circuit agreed that this rea­son would be improper, but affirmed the district court’s action.  “[A] denial of a re­duction for acceptance of re­sponsibility may be affirmed where a district court artic­ulates permissi­ble as well as impermissible rea­sons for the denial.”  Here, the district court also denied defen­dant the reduction be­cause he failed to show remorse or acknowledge the wrong­fulness of the conduct for which he was convicted.  U.S. v. Cousineau, 929 F.2d 64 (2nd Cir. 1991).

 

2nd Circuit holds that defendant need not ac­cept responsi­bility for crimes of which he was not convicted, nor for crimes of codefendants. (482) Relying on its de­cision in U.S. v. Oliveras, 905 F.2d 623 (2nd Cir. 1990) the 2nd Circuit held that the guidelines do not require a de­fendant to accept responsibility for crimes other than those to which he has pleaded guilty, or of which he has been found guilty, in order to earn credit for acceptance of re­sponsibility.  Moreover, the court found “problematic” the district court’s reliance on defen­dant’s refusal to acknowl­edge that he had informed his girl­friend of the contents of the narcotics package.  The district court did not clearly state “its rationale for view­ing this re­fusal as bearing on [defendant]’s ac­knowledgement of his own responsibility as contrasted with that of [the codefendant girl­friend].”  U.S. v. Santi­ago, 906 F.2d 867 (2nd Cir. 1990).

 

2nd Circuit rules that defendant need accept responsi­bility only for “related conduct,” not “relevant conduct.” (482) The officers alleged that defendant dropped eight additional bags of PCP from his pocket when he was ar­rested.  The defen­dant disputed this allegation  The 2nd Circuit found that the defendant would not be required to accept responsibility for the eight bags of PCP in or­der to be entitled to an adjust­ment for acceptance of re­sponsibility.  The court distin­guished between § 3E1.1’s “related conduct” and § 1B1.3’s “relevant conduct.”  Although a sentencing court may consider all relevant conduct in de­termining the offense level, it can­not require a defendant to accept responsibility for all rele­vant conduct.  To impose a such a requirement would raise distinct 5th Amendment questions.  How­ever, the case was remanded because the record was not clear as to the basis for the dis­trict court’s denial of the adjustment for ac­ceptance of responsibility.  U.S. v. Oliv­eras, 905 F.2d 623 (2nd Cir. 1990).

 

2nd Circuit rules that requiring acceptance of respon­sibility for dismissed counts violated 5th Amendment. (482) Defen­dant argued that the trial court violated his 5th Amendment rights against self-incrimination by re­quiring him to accept responsibility for counts which had been dismissed as part of his plea agree­ment.  The 2nd Circuit agreed, finding that unless defendant’s state­ments were immunized from use in subsequent criminal prosecutions, the effect of requiring him to ac­cept re­sponsibility for crimes other than those to which he pled guilty or which he had been found guilty consti­tuted a penalty for refusing to incriminate himself in vi­olation of the 5th Amendment.  The court found that just be­cause the prosecution had agreed to dismiss counts did not remove the risk of self incrimi­nation posed by admis­sions made to a proba­tion officer. Addi­tionally, a rea­sonable inter­pretation of guideline § 3E1.1(a) and its 1988 amendment sup­ported this interpretation.  U.S. v. Oliveras, 905 F.2d 623 (2nd Cir. 1990).

 

2nd Circuit holds that admission of involve­ment in ille­gal gambling activity does not con­stitute acceptance of respon­sibility for engag­ing in extortion. (482) In a handwritten letter to the court presented prior to sen­tencing, a convicted extortionist admitted his responsibil­ity for involvement in an illegal gambling en­terprise.  He claimed that the District Court therefore erred in deny­ing him a two point of­fense level reduction for accep­tance of respon­sibility.  The 2nd Circuit dis­agreed, holding that the denial was proper because the defen­dant never ad­mitted responsibility for commit­ting the charged offenses, i.e. using extortion to collect gam­bling debts.  U.S. v. Lanese, 890 F.2d 1284 (2nd Cir. 1989).

 

2nd Circuit holds that defendant was not enti­tled to accep­tance of responsibility adjustment despite his par­tial ad­missions. (482) The 2nd Circuit upheld the denial of an acceptance of responsibility ad­justment, without discus­sion, de­spite the fact that the defendant admitted to possessing co­caine and butane on board a commercial airliner.  It found no basis in the record for disturbing the trial judges’ findings.  U.S. v. Moskowitz, 888 F.2d 223 (2nd Cir. 1989).

 

3rd Circuit approves acceptance reduction to one count even though defendant went to trial on other count. (482) Defendant was charged with bank robbery, 18 U.S.C. § 2113, and carrying a firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c). He pled guilty to bank robbery, but went to trial and was convicted of the § 924(c) charge. The district court granted defendant an acceptance of responsibility, in spite of the fact that he contested the § 924(c) charge. The government argued that the district court failed to take into account that defendant denied “relevant conduct,” as defined in Note 1(a) to § 3E1.1. However, Note 1(a) does not establish a per se bar to the grant of an acceptance reduction. Even if defendant falsely denied, or frivolously contested relevant conduct, this is simply “an appropriate consideration” for the court to take into account in determining whether a defendant qualifies for the reduction, but it is not the only consideration. The court did not improperly disregard Note 2 to § 3E1.1, which states that the reduction should not be granted to a defendant who proceeds to trial and denies factual elements of guilt. The court adjusted defendant’s offense level only as to the robbery count, and defendant put the government to its burden of proof on the other count. Where counts are not grouped and credit may be granted to them separately, there is no error when the district court grants the reduction as to a count that defendant did not challenge. U.S. v. Williams, 344 F.3d 365 (3d Cir. 2003).

 

3rd Circuit says 3-level acceptance reduction cannot be denied for refusal to admit acquitted conduct. (482) Defendant was willing to plead guilty to counts one and two, but refused to plead guilty to count three. The jury ultimately convicted him of the first two counts, but acquitted him on the third count. The district court granted defendant a two level acceptance of responsibility reduction, but refused to grant an additional one level decrease based in part on defendant’s refusal to plead guilty on the third count. The 3rd Circuit, relying on U.S. v. Rodriguez, 975 F.2d 999 (3rd Cir. 1992), reversed. The court appeared to have incorrectly considered defendant’s refusal to admit conduct not comprising part of the offenses of conviction. A defendant is not required to affirmatively admit relevant conduct beyond the offense of conviction in order to obtain an acceptance of responsibility reduction. U.S. v. Fields, 39 F.3d 439 (3rd Cir. 1994).

 

3rd Circuit holds section 3E1.1 requires defen­dant to accept responsibility for rel­evant conduct. (482) Defen­dant pled guilty to unarmed robbery, but was found, de­spite his denials, to possess a gun during the rob­bery.  The dis­trict court relied upon his de­nials of gun pos­session to deny him a reduc­tion for acceptance of responsi­bility.  The 3rd Circuit held that guideline section 3E1.1 au­thorizes the sen­tencing court to con­sider re­lated conduct as well as con­duct constituting the offense of conviction in determin­ing whether a de­fendant has accepted responsi­bility. U.S. v. Frierson, 945 F.2d 650 (3rd Cir. 1991).

 

4th Circuit rejects acceptance reduction where defendant denied relevant conduct. (482) Defendant argued that she deserved an acceptance of responsibility reduction even though she went to trial because she never contested the fact underlying her false statement convictions and merely argued as a matter of law that her conduct did not violate the statute in question. However, the Fourth Circuit ruled that the court properly denied the reduction based on defendant’s false denials of relevant conduct. In a 1998 FBI interview, defendant admitted both that she had observed her father endorse several checks with her brother’s signature, and that it was likely that she also fraudulently endorsed some. After trial, however, she admitted to the probation officer only that she had witnessed her father sign these checks for her brother, thus implicitly denying her own previously acknowledged role in the forgeries. A denial of relevant conduct is inconsistent with acceptance of responsibility. Elliott v. U.S., 332 F.3d 753 (4th Cir. 2003).

 

4th Circuit denies reduction where defendant did not admit dismissed counts. (482) Defendant pled guilty to one count and two other counts were dis­missed.  She argued that the district court’s election not to consider the substance of the dismissed counts as relevant conduct precluded the court from considering that conduct in denying credit for accep­tance of responsibility.  The 4th Circuit rejected her argument, finding that the scope of the acceptance of responsibility inquiry is not necessarily coextensive with the concept of relevant conduct.  The district court was not required to grant defendant an accep­tance of responsibility reduction simply because it exercised its discretion to find that her involvement in the uncharged offenses did not justify increasing her sentence.  U.S. v. Choate, 12 F.3d 1318 (4th Cir. 1993).

 

4th Circuit rejects 1st Circuit’s holding that defendant need only accept responsibility for count of conviction. (482) Re­jecting the opin­ion in U.S. v. Perez-Franco, 873 F.2d 455 (1st Cir. 19898), the 4th Circuit agreed with the 2nd and 5th Cir­cuits that in order to obtain credit for ac­ceptance of respon­sibility under U.S.S.G. § 3E1.1, “a defendant must first accept responsibility for all of his criminal conduct,” not just the count to which he pled guilty.  See U.S. v. Moskowitz, 888 F.2d 223 (2nd Cir. 1989) and U.S. v. Tellez, 882 F.2d 141 (5th Cir. 1989).  Here the defendant admitted he was guilty of simple possession of cocaine but did not accept responsibility for his intent to distribute it.  He argued that to have done so “would have ren­dered a successful appeal a hollow victory.”  The 4th Circuit upheld the district court’s finding that he did not accept responsibility as not clearly erroneous.  U.S. v. Gordon, 895 F.2d 932 (4th Cir. 1990).

 

5th Circuit denies acceptance reduction for falsely denying relevant conduct. (482) Defendant pled guilty to failing to create and maintain records pertaining to an individual who was the object of a sexually explicit photo. The district court refused to grant defendant an acceptance of responsibility reduction because defendant denied that the person depicted in the photo was a minor. Defendant argued that because the offense to which he pled guilty applies to all sexually explicit photos, regardless of the age of the subject, his denial that the individual was a minor was irrelevant to his acceptance of responsibility. However, defen­dant’s production of child pornography, while not an element of the offense of conviction, allegedly occurred during the commission of the offense. It was thus relevant conduct. Under Note 1 to § 3E1.1, defendant was not required to affirmatively admit that the subject was a minor in order to receive the reduction. However, a false denial of such conduct is grounds for denying the reduction. The government presented evidence that the person depicted was a minor, contradicting defendant’s denial. Because the district court had a basis for concluding that defendant falsely denied relevant conduct, the Fifth Circuit upheld its refusal to grant defendant an acceptance of responsibility reduction. U.S. v. Pierce, 237 F.3d 693 (5th Cir. 2001).

 

5th Circuit upholds acceptance credit even though defendant did not admit relevant conduct. (482) Defendant was convicted of harboring several illegal aliens in his house on February 28 and March 20, 1996. His PSR recounted several incidents of alien harboring, involving 36 illegal aliens. Defendant did not object to the relevant conduct recitations in the PSR. The PSR recommended an acceptance of responsibility reduction based on defendant’s acknowledgement of responsibility, his express­ions of remorse and his entry of a guilty plea. The government argued that defendant admitted to housing only 14 illegal aliens rather than the 36 detailed in the PSR. The Fifth Circuit deferred to the district court’s decision to grant the acceptance of responsibility reduction. There is no requirement that a defendant volunteer or affirmatively admit relevant con­duct beyond the offense of conviction. Both the probation officer and the district judge, who had the opportunity to observe the defendant’s demeanor, believed that defendant had accepted responsibility for his acts. An appellate court should not substitute its “remote and detached reading of the cold record” for the judgment of the probation officer and judge who directly interacted with the defendant. U.S. v. Salinas, 122 F.3d 5 (5th Cir. 1997).

 

5th Circuit finds no basis to deny credit where defendant did not falsely deny or contest relevant conduct. (482) Defendant pled guilty to transporting an alien within the U.S. He contended that he was entitled to an acceptance of respon­sibility reduction because he pled guilty and admitted all of the conduct comprising the offense charged. The govern­ment contended that defendant failed to admit that he negotiated for and received fees for the release of the some of the aliens. The Fifth Circuit held that these acts were additional relevant conduct, rather than conduct compris­ing the offense charged, and therefore defendant had no duty to affirmatively admit those acts. Defen­dant did not deny that he actually received the fees. His statement that any money he collected was for the benefit of others was offered in response to the recom­men­dation of a leadership enhancement. It did not constitute a false or frivolous denial of relevant conduct. Thus, there was no founda­tion for the court’s refusal to grant the reduction. U.S. v. Patino‑Cardenas, 85 F.3d 1133 (5th Cir. 1996).

 

5th Circuit denies reduction for refusal to admit connection with additional cocaine in house. (482) Defendant and others sold crack cocaine from the same house.  They were arrested after defendant sold 2 grams of crack to an undercover agent.  An additional 3.9 grams were found on the floor of the house.  The evidence suggested that this crack belonged to one of the other drug sellers, but defendant was held responsible for it based on her relationship with the other sellers.  Although defendant admitted selling the drugs and admitted her relationship with the other sellers, the district court denied her a reduction for acceptance of responsibility because she refused to admit any connection with the drugs found in the house.  The 5th Circuit affirmed, but noted that it might have reached a different conclusion if it had been the sentencing judge.  U.S. v. Smith, 13 F.3d 860 (5th Cir. 1994).

 

5th Circuit requires defendant to accept responsi­bility for relevant conduct under pre-1992 guide­lines. (482) Defendant ad­mitted committing the offense of conviction, but refused to take responsibil­ity for previous drug dealings.  The 5th Circuit af­firmed that under the pre-November 1, 1992 version of section 5E1.1, defendant was required to ac­cept responsibility for all relevant conduct in order to be granted the reduction.  Although the guideline was amended effective Novem­ber 1, 1992 to delete this requirement, this amendment became effective after defendant was sentenced.  The court said guideline changes generally should not be applied to cases in which the defen­dant was sentenced before the amendment took ef­fect.  U.S. v. Windham, 991 F.2d 181 (5th Cir. 1993).

 

5th Circuit denies reduction for refusal to discuss prior or subsequent drug activi­ties. (482) Defendant contended for the first time in his reply brief that he should have re­ceived a reduction for ac­ceptance of respon­sibility.  The 5th Circuit noted that ordinarily it would not consider a new claim raised for the first time in a defendant’s reply brief, but that even if it were to address the issue, it would not dis­turb the district court’s deci­sion.  Defendant declined to discuss any prior or subsequent drug activities with his proba­tion officer.  Under the 1991 version of sec­tion 3E1.1, the version applicable at defen­dant’s sentencing, this was an appropriate reason to deny the reduction. U.S. v. Hoster, 988 F.2d 1374 (5th Cir. 1993).

 

5th Circuit finds that court adopted the presen­tence report’s recommendation on acceptance of respon­sibility. (482) The 5th Circuit rejected defendant’s ar­gument that the district court failed to state at sentenc­ing whether defendant deserved a re­duction for accep­tance of responsibility.  The presen­tence report rec­ommended against a reduc­tion be­cause defendant made only limited admissions of his involvement in the offense, denied his intent to pur­chase a larger quan­tity of drugs, refused to discuss the large quantity of cash found in the trunk of his car, and refused to discuss prior drug deals.  Defen­dant objected to the presen­tence re­port’s recommen­dation, but did not put any facts into dispute. When a defendant objects to his pre­sentence report but offers no rebut­tal evidence to refute the facts, the district court is free to adopt the facts in the presen­tence re­port without further inquiry.  By as­signing defendant an offense level of 28, the court “obviously” adopted the finding of the presentence re­port that defendant had not demonstrated his accep­tance of responsibil­ity.  Given defendant’s limited ad­missions, the refusal to grant the reduction was not clearly erroneous.  U.S. v. Sherbak, 950 F.2d 1095 (5th Cir. 1992).

 

5th Circuit rejects acceptance of responsi­bility where de­fendants denied involve­ment outside charged con­duct. (482) De­fendants were arrested af­ter purchasing half a pound of methamphetamine from an un­dercover agent.  The 5th Circuit affirmed the dis­trict court’s denial of a re­duction for ac­ceptance of re­sponsibility because defen­dants denied cul­pability for any criminal conduct beyond the spe­cific offense charged.  One de­fendant claimed that he was pressured into committing the offense and denied that the pur­chase money came from the prior sale of other drugs.  The other defen­dant denied that he knew that his co-defen­dant planned to purchase methamphetamine and denied testing the drug, in­sisting that he was simply “using” the drug.  Both defendants continued to deny their in­volvement in the sale of 17 addi­tional ounces of metham­phetamine.  U.S. v. Kinder, 946 F.2d 362 (5th Cir. 1991).

 

5th Circuit denies reduction where defendant did not accept responsibility for all relevant conduct. (482) Al­though de­fendant said that he accepted responsibility for his offense of convic­tion, he denied his in­volve­ment in six other docu­mented drug transactions between himself and an under­cover agent.  The 5th Cir­cuit found that this was sufficient to deny de­fendant a reduc­tion for ac­ceptance of respon­sibility.  To obtain a reduction under guideline § 3E1.1, the defen­dant must show that he accepted responsibility for all his relevant criminal con­duct.  U.S. v. Alfaro, 919 F.2d 962 (5th Cir. 1990).

 

6th Circuit holds that court properly considered prior illegal re-entries in denying acceptance reduction. (482) Defendant pled guilty to re-entering the U.S. after deportation. He argued that he accepted responsi­bility by pleading guilty and truthfully admitting the conduct comprising the offense of conviction. The district court denied the reduction, noting that defendant had previously been deported for committing crimes in this country. The Sixth Circuit held that the district court properly denied the reduction based on defendant’s repeat violations of the same statute violated here. The district court was suspicious that defendant would again illegally reenter the country. Lack of true remorse is a valid consideration. The district court’s disbelief in defendant’s remorse was well-founded. When the probation officer asked him what he intended to do after being deported, defendant said that he intended to come back. Additionally, when given the opportunity to address the court at sentencing, defendant did not express remorse or contrition for his actions. U.S. v. Castillo-Garcia, 205 F.3d 887 (6th Cir. 2000).

 

6th Circuit rules court did not reject reduction based on denial of relevant conduct. (482) Defendant asserted that he was improperly denied credit for acceptance of responsibility based on his failure to admit relevant conduct. In denying the reduction, the district court stated that to earn the reduction, a defendant must give “a full and complete truthful statement of guilt and relevant conduct surround­ing the guilt.” It then relied on defendant’s statements concerning the legalization of marijuana and the police officers’ role in the case. The Sixth Circuit found that the denial of the § 3E1.1 reduction was not based on the denial of relevant conduct. The district court used the term “relevant conduct” not in the guidelines sense, but as conduct related to the count of conviction or guilt. Defendant’s comments about the police clearly related to that count. Oliver v. U.S., 90 F.3d 177 (6th Cir. 1996).

 

6th Circuit approves firearm increase despite claim that girlfriend kept gun for protection. (482) Defendant pled guilty to a drug charge. When he was arrested, police found drugs in the bathroom and a semi­automatic pistol and ammunition in the top drawer of a dresser in the master bedroom. Defendant challenged a § 2D1.1(b)(1) enhance­ment, because his girlfriend, with whom he lived, testified that the gun belonged to someone else and that the girlfriend kept the gun in the apartment for her protection. The Sixth Circuit affirmed because even if the gun was in the house for the girlfriend’s protection, the gun could be jointly possessed and was located in a residence to which defendant had full access and where drugs were found. U.S. v. Hill, 79 F.3d 1477 (6th Cir. 1996).

 

6th Circuit denies reduction to defendant who frivolously contested relevant conduct during grand jury testimony. (482) The district court denied defendant an acceptance of responsibility reduction, finding that during his grand jury testimony, he frivolously contested relevant conduct concerning the scope of his involvement in a plan to manufacture methcathinone. He testified that he only received two shipments of ephedrine, when he actually received six. He also made additional numerous false statements concerning relevant conduct during his grand jury testimony. Finally, defendant’s obstruction of justice enhancement (based on the grand jury perjury) was inconsistent with acceptance of responsibility. U.S. v. Mahaffey, 53 F.3d 128 (6th Cir. 1995).

 

6th Circuit holds that reduction may be conditioned on acceptance of responsibil­ity for related conduct. (482) Agreeing with the 4th, 5th, 7th, 10th and 11th Circuits, and disagreeing with the 1st, 2nd, 3rd and 9th Circuits, the 6th Circuit held that it did not violate defendant’s 5th Amendment right against self-incrimination to deny him a re­duction based on his refusal to accept re­sponsibility for conduct related to the offense of conviction.  The court adopted the ratio­nale of the 4th Circuit in U.S. v. Fraizer, 971 F.2d 1076 (4th Cir. 1992), cert. denied, 113 S.Ct. 1028 (1993).  The choice presented to a defendant under §3E1.1 is constitutionally indistinguishable from the choice confronting defendants in the plea bargain cases, and is different from the choice faced by the plain­tiffs in the public employment penalty cases.  The guidelines’ approach is consistent with the historic ability of sentencing judges to withhold leniency if they believe that a defen­dant concealed the true scope of his crimes.  U.S. v. Clemons, 999 F.2d 154 (6th Cir. 1993).

 

6th Circuit remands because denial of ac­ceptance credit was based on nonconvic­tion matters. (482) The district court de­nied defendant a downward ad­justment for accep­tance of responsibility in part be­cause of de­fendant’s attitude with respect to a fraud that predated the crime of conviction.  The 6th Cir­cuit remanded be­cause it found that the earlier fraud could not be considered relevant conduct of the of­fense of convic­tion.  More­over, it noted that circuit precedent re­quired acceptance of responsibility to be assessed based solely on the offense of conviction.  U.S. v. Moored, 997 F.2d 139 (6th Cir. 1993).

 

6th Circuit rejects reduction where defen­dant de­nied involvement in ear­lier cocaine transaction. (482) Defen­dant and his co-conspirator initially at­tempted to purchase five kilograms of cocaine from under­cover agents, but the deal was never completed. De­fendant and his co-conspirator were subse­quently ar­rested after attempting to pur­chase three kilograms of cocaine from the same undercover agents.  The 6th Circuit affirmed the denial of a reduction for accep­tance of re­sponsibility because at the sentencing hear­ing, defendant de­nied involvement in the ini­tial attempt to purchase five kilograms of co­caine, de­spite persuasive evidence to the con­trary.  U.S. v. Nichols, 979 F.2d 402 (6th Cir. 1992), cert. granted in part, Nichols v. U.S. 114 S.Ct. 39 (1993).

 

6th Circuit finds no acceptance of responsi­bility by defen­dant who only accepted respon­sibility for drugs listed in in­dictment. (482) The 6th Circuit found that defendant was not entitled to a reduction for acceptance of re­sponsibility be­cause he only accepted responsi­bility for the drugs listed in the indictment.  However, the dis­trict court had found that de­fendant was responsible for a much larger quantity of drugs than those listed in the in­dictment.  U.S. v. Herrera, 928 F.2d 769 (6th Cir. 1991).

 

6th Circuit dismisses as “inappropriate,” ar­gument that defendant need only accept re­sponsibility for counts of conviction. (482)  The sentencing court refused to grant a down­ward adjustment for acceptance of responsibil­ity based solely on defendants’ guilty plea.  Citing U.S. v. Perez-Franco, 873 F.2d 455 (1st Cir. 1989), defendant ar­gued that he need only accept responsibility for offenses to which he pled guilty and argued that the district court expected him to accept responsibility by nam­ing his New York sources.  The 6th Circuit dis­agreed, holding “Perez-Franco is instructive only when, absent the district courts’ allegedly illegitimate expectation, there is clear evidence that defendant actually accepted responsibil­ity.”  In this case, the district court clearly stated that defen­dant was not receiving a re­duction merely  for pleading guilty.  U.S. v. Guarin, 898 F.2d 1120 (6th Cir. 1990).

 

7th Circuit denies acceptance reduction for false testimony and frivolously denying rele­vant conduct. (482) Defendants contested the district court’s decision to deny them reductions for acceptance of responsibility under § 3E1.1. They argued that because they had the right to require the government to prove relevant conduct at sentencing, it was error for the court to deny them an acceptance reduction simply because they exercised that right. The Seventh Circuit found no error in the court’s denial of the acceptance reduction. The district court decided that defendant Bowman gave false testimony and that defendant Cole frivolously denied the amounts of crack cocaine attributed to him. Defendant argued that he was responsible for roughly 10 percent of the quantity of crack cocaine that the government attributed to him. He insisted that the government’s witnesses made up facts about him, but he presented only one witness to contest their version of events. Given the deferential standard of review that applied, the district court’s conclusion that defendant frivo­lously denied relevant conduct was not clear error. U.S. v. Etchin, 614 F.3d 726 (7th Cir. 2010).

 

7th Circuit rejects acceptance reduction based on denial of relevant conduct. (482) Defendant contended that he cooperated so fully with law enforcement authorities after his arrest that he deserved a three-level acceptance of responsi­bility reduction. The court gave two independent reasons for its decision to deny the reduction: first, a letter defendant wrote to the court was not fully honest and denied relevant conduct (such as whether defendant knew that the drug was methamphetamine, and how much money he was going to receive), and second, that he denied relevant conduct when he insisted that he was not the person in charge. The first of these reasons was enough to support the denial of the adjustment for acceptance of responsibility. U.S. v. Hernandez, 309 F.3d 458 (7th Cir. 2002).

 

7th Circuit denies acceptance reduction based on false denial of relevant conduct. (482) In the plea agreement, the government promised to recommend a reduction if defendant exhibited behavior consistent with acceptance of responsi­bility. At the time the government made this promise, it was aware that defendant intended to dispute the amount of crack attributable to relevant conduct and also to contest whether he possessed a dangerous weapon during a drug offense. Defendant argued that the government deluded him in the plea agreement by making an illusory promise to recommend the reduction when the government fully intended to argue that defendant frivolously denied ownership of the gun and the crack found in the basement duct work. The Seventh Circuit found no error. The district court was entitled to credit the testimony of an informant over that of defendant after hearing both testify. Having found that defendant falsely denied the extent of his drug dealing, the district court did not err in denying defendant an acceptance of responsibility reduction. Moreover, the government’s promise was not illusory. If the government had believed defendant’s testimony, the government would have been obliged to recommend a reduction in defendant’s sentence for acceptance of responsibility. U.S. v. Willis, 300 F.3d 803 (7th Cir. 2002).

 

7th Circuit rejects acceptance reduction where defen­dant denied relevant conduct. (482) Defendant argued that he deserved a three-level acceptance of responsibility reduction because he never challenged the facts underlying his convictions, but instead merely raised good faith legal objections to the conclusions that should be drawn from those facts. He also voluntarily gave a statement to police shortly after his arrest, quickly informed the government that he wished to plead guilty, assisted the government by providing information as to a co-conspirator’s where­abouts, and consistently admitted his guilt. However, the district court did not believe that defendant’s cooperation in these instances was sufficient to outweigh his other protests. He objected to the district court’s conclusion that 19 grams of crack dropped by a co-conspirator while fleeing from police was relevant conduct. Although defendant’s cooperation made this a closer case than it otherwise might have been, the Seventh Circuit affirmed the denial of the acceptance reduction. The objections defendant raised boiled down to denials of the facts comprising relevant conduct. Defendant denied the fact that the 19 grams found by the back door of the house belonged to a co-conspirator and were part of their joint venture in crack distribution. He also denied the fact that the firearms inside the house were there to protect the drugs and the individuals like himself who were selling the drugs. Although a defendant is free to challenge the government’s proffer of relevant evidence, doing so “exposes his denials to the scrutiny of the court.” U.S. v. Booker, 248 F.3d 683 (7th Cir. 2001).

 

7th Circuit denies acceptance reduction where defen­dant denied relevant conduct. (482) Defendant argued that his denial of drug quantity found by the district court was not evidence of frivolously contesting relevant conduct, but simply an indication of his desire for his sentence to reflect the actual quantity for which he was responsible. Thus, he contended he was entitled to an acceptance of responsibility reduction. The Seventh Cir­cuit noted that it is permissible to withhold an acceptance of responsibility reduc­tion from a defendant who denies relevant conduct in the face of credible statements from witnesses tying him to the offense. The district court’s decision to find the testimony of Cooke and the statement of Neumann credible was supported by the record. Thus, faced with credible evidence that defendant sold 3735 grams of methampheta­mine, and defendant’s insistence that he sold 1360 grams, the district court’s finding that defendant frivolously contested relevant conduct was proper. U.S. v. Berthiaume, 233 F.3d 1000 (7th Cir. 2000).

 

7th Circuit remands because court applied old guideline requiring acceptance of relevant conduct. (482) Defendant pled guilty to extortion stemming from his sale of general contractors’ licenses for $1500 to two applicants who did not take the required test. In his statement to the probation officer, defendant admitted the two sales, but did not discuss additional sales that consti­tuted relevant conduct. The district court concluded that defendant had been less than truthful, and thus did not accept responsibility, because the government produced a number of witnesses who testified that defendant sold many more than two general contractors’ licenses. The Seventh Circuit remand­ed, holding that the district court incor­rectly applied a prior version of the application notes that required acceptance of responsibility for all related conduct. In 1998, Note 1(a) to § 3E1.1 was amended to provide that a defendant is not required to volunteer or affirmatively admit relevant conduct in order to obtain the acceptance reduction. However, the court may consider whether a defendant frivolously denies relevant conduct. Here, the district court improperly denied the reduction because defendant did not admit relevant conduct. However, there was no evidence that the probation officer asked defendant about the relevant conduct or that defendant falsely denied this uncharged conduct. U.S. v. Hollis, 230 F.3d 955 (7th Cir. 2000).

 

7th Circuit withholds acceptance reduction from defen­dant who denies relevant conduct. (482) The district court did not grant defendant an acceptance of responsibility reduction because he challenged the district court’s calculation of his relevant conduct. The Seventh Circuit affirmed. Defendant contested the judge’s applica­tion of the drug aggregation rule, and denied responsibility for the full extent of his involvement with his supplier in a statement wholly at odds with witness testimony. The sentencing court found that defendant had “falsely denied and frivolously contested relevant conduct which the Court has determined to be true.” Defendant did more than challenge whether the Brown or Christiansen drug conspiracies were “relevant” to the offense of conviction, he also challenged the amount of drugs attributable to the Brown conspiracy. As in U.S. v. Taylor, 72 F.3d 533 (7th Cir. 1995), defendant offered only his bare denials to counter the largely consistent stories of several witnesses. The sentencing court did not err in finding that defendant’s challenge was frivolous. U.S. v. Zehm, 217 F.3d 506 (7th Cir. 2000).

 

7th Circuit denies reduction to prisoner who refused to provide name of drug supplier. (482) Defendant was caught possessing marijuana while he was a prisoner in a federal correctional facility. The district court denied defendant a § 3E1.1 acceptance of responsibil­ity reduction because he refused to tell the probation officer or the district court where he acquired the marijuana. A sentencing court cannot condition a § 3E1.1 reduction on defendant’s admission of details related to crimes other than the offense of conviction. A sentencing court can, however, require that the defendant provide a “candid and full unraveling of the circumstances surrounding the offense of conviction, including information about the methods used by the defendant to commit his crime and the source of the contraband he possessed at the time of arrest.” U.S. v. Hammick,36 F.3d 594, 599-600 (7th Cir. 1994). The Seventh Circuit held that under Hammick, it was clearly permissible for the district court to condition the acceptance of responsibility reduction on defendant’s willing­ness to provide information regarding his drug source. The district court was not attempting to obtain information about uncharged crimes, but only obtain a candid and full account of how defendant came to possess the marijuana. U.S. v. Larkin, 171 F.3d 556 (7th Cir. 1999).

 

7th Circuit holds that failure to recommend acceptance of responsibility reduction breach­ed plea agreement. (482) The govern­ment agreed as part of defendant’s plea agreement to recommend an acceptance of responsi­bility reduction “based upon facts currently known” to the government. The government later withdrew its recom­menda­tion, claiming that defendant denied relevant conduct. The Seventh Circuit held that the government’s failure to make the recommenda­tion breached the plea agreement, since it was not based on any newly discovered evidence. The government claimed that it discovered post-plea that defendant lied about the starting date of his association with a drug runner named Duran. However, the “discovery” was based on a taped conversation between defendant and an informant that government possessed long before the plea agreement was negotiated. The government also claimed that defendant knew more about the role of Duran’s ex-wife than he admitted. However, the record did not support this conclusion. Defendant admitted from the beginning that he once picked up drugs from the ex-wife’s house. Absent newly discovered evidence, the government was bound by its agreement to recommend the acceptance of responsibility reduction. U.S. v. Grimm, 170 F.3d 760 (7th Cir. 1999).

 

7th Circuit rejects acceptance of responsibility reduction where defendant later changed his story. (482) Defendant pled guilty to a single drug count and a gun charge. However, he later moved unsuccessfully to withdraw his guilty plea. The Seventh Circuit ruled that the district court properly found defendant did not accept responsibility for his crime. After pleading guilty, he changed his story and falsely denied facts about membership in the drug conspiracy and his intended use of the gun. U.S. v. Martinez, 169 F.3d 1049 (7th Cir. 1999).

 

7th Circuit finds no acceptance of responsibility where defendant falsely denied relevant conduct. (482) In denying defendant a reduction for acceptance of responsibility, the court explained that defendant had falsely denied relevant conduct. Defendant argued that the court erroneously required him to affirma­tively admit relevant conduct, whereas § 3E1.1 says a defendant need not volunteer or affirmatively admit relevant conduct to show acceptance of responsibility. The Seventh Circuit found the reduction was proper based on defendant’s false denial of relevant conduct, even though the judge’s comments could be read as suggesting that he wanted defendant to volunteer information about the relevant conduct. However, the court’s findings were insufficient to support its conclusion that the uncharged conduct was “relevant” under the guidelines. On remand, the court was instructed to revisit this issue. U.S. v. Patel, 131 F.3d 1195 (7th Cir. 1997).

 

7th Circuit denies § 3E1.1 reduction where defendants falsely denied relevant conduct. (482) Defendant and his family fraudulently procured unemployment compensation checks for fictitious employees of the bar and restaurant he owned with his brother. The Seventh Circuit found defendant’s appeal of the denial of an acceptance of responsibility reduction to be frivolous given his persistent denial of relevant conduct. The most glaring example was his denial that he was the “Louis A. Valera” who devised and directed the scheme. There was compelling evidence to the contrary, including fingerprints and the bar accountant who identified defendant as Valera. Defendant’s sister also did not earn the § 3E1.1 reduction because she denied that she supplied the scheme with names and personal informa­tion for phony claimants by misappropriating files from her employer. U.S. v. Zaragoza, 117 F.3d 342 (7th Cir. 1997).

 

7th Circuit refuses to attribute at­torney’s factual challenge to silent defendant. (482) Defendant pled guilty to conspiracy to import cocaine and marijuana. He admitted the con­duct relating to the offense of convic­tion, but remained silent about a smuggling trip that was not part of the charged conspiracy. The district court denied credit for acceptance of respon­sibility because defense counsel ar­gued that this trip was not relevant conduct and challenged certain facts about the trip. The court also found that defendant was not actually re­morseful. The Seventh Circuit found that contesting whether conduct is “relevant” is analogous to challenging the constitutionality of a statute or the application of a statute to the facts. This does not bar acceptance credit. It would also be troubling to attribute the attorney’s factual challenges to defen­dant where defendant remained silent on advice of his attorney. In such a situation, a court should require coun­sel to present evidence to support his factual challenges, or question the de­fendant to see if he adopts the attor­ney’s challenge. Given defen­dant’s limited English and education, it was possible he did not agree with or even understand his attorney’s challenge. However, the reduction was still prop­erly denied because the district court found that defendant was insincere in his one-sentence apology to the court. U.S. v. Purchess, 107 F.3d 1261 (7th Cir. 1997).

 

7th Circuit prohibits denying additional § 3E1.1 reduction once court finds defendant meets the criteria. (482) The district court granted defendant a two‑level acceptance of responsibility reduction because defendant timely provided information to the prosecutor and had timely pled guilty. However, because he falsely denied relevant conduct that the court found to be true, it refused to grant him an additional one level reduction under § 3E1.1(b). The Seventh Cir­cuit reversed, holding that once a defendant meets the criteria of § 3E1.1(b), the reduction is mandatory and not permissive. Under the guidelines, a defendant must be given a two‑level decrease under subsection (a) when he clearly accepts responsibility for his offense. After he qualifies for subsection (a), he also must be given an additional one‑level decrease under subsection (b) when its criteria are met: the offense level must be 16 or greater before the two level reduction, and the defendant must timely assist authorities. The district court expressly found that defendant met the § 3E1.1(b) criteria. Once it did, it was required to grant the additional reduction, rather than announcing that defendant was lucky to receive the two‑point reduction he did receive. U.S. v. Townsend, 73 F.3d 747 (7th Cir. 1996).

 

7th Circuit refuses § 3E1.1 reduction for false denial of relevant conduct. (482) Defendant argued that the court denied her a § 3E1.1 reduction because she challenged the accuracy of the PSR. The Seventh Circuit held that the § 3E1.1 reduction was properly rejected because defendant falsely denied relevant conduct. The judge noted that defendant’s testimony differed from the accounts provided by others and concluded that defendant had tried to minimize her role in the drug conspiracy. The district court refused to accept defendant’s version of the facts and made a specific finding that she was not credible. Defendant’s uncorroborated and self-serving assertions were a false denial of relevant conduct. U.S. v. Taylor, 72 F.3d 533 (7th Cir. 1995).

 

7th Circuit denies reduction for defendants who denied full extent of relevant criminal conduct. (482) Defendants engaged in a fraudulent “Ponzi” scheme. They pled guilty to a single count of mail fraud based on a mailing to one investor. They argued that they should not be required to admit their conduct beyond the offense of conviction in order to obtain an acceptance of responsibility reduction. The Seventh Circuit held that defendants were properly denied an acceptance of responsibility reduction based on their denial of relevant conduct. Although a defendant need not admit relevant conduct to obtain the reduction, he cannot lie about such conduct. Defendants here affirmatively denied that they engaged in a scheme to defraud. A defendant who denies the government’s statement of relevant conduct exposes his denials to the scrutiny of the court. U.S. v. Brown, 47 F.3d 198 (7th Cir. 1995).

 

7th Circuit denies acceptance reduction for failing to discuss source of fraudulent credit cards and ID. (482) Defendant pled guilty to using counterfeit credit cards and identification documents. The district court denied defendant a reduction for acceptance of responsibility because she refused to explain how she arrived in Wisconsin, where she acquired the fraudulent credit cards and IDs she used to commit her crimes, or who was the source of $14,000 that she and her co-conspirator held at the time of their arrest. She argued that her silence was protected by note 1(a) to § 3E1.1, which allows a defendant to remain silent concerning relevant conduct outside the scope of his offense. The 7th Circuit held that the reduction was properly denied based on defendant’s failure to fully explain the conduct comprising her offense of conviction. Defendant’s silence about the source of the excess funds was protected by note 1(a), since the money was not involved in the offense of conviction. However, by refusing to explain how she arrived in Wisconsin or where she received the counterfeit documents, defendant failed to provide “a candid and full unraveling” of the conduct comprising her offense of conviction. Judge Bauer dissented. U.S. v. Hammick, 36 F.3d 594 (7th Cir. 1994).

 

7th Circuit rejects acceptance of responsibility reduction for falsely denying relevant conduct. (482) Defendant pled guilty to armed bank robbery. He admitted committing the robbery, but denied firing four shots at a witness while making his escape. He also denied brandishing a firearm at a woman’s house to obtain her car. The 7th Circuit upheld the district court’s denial of an acceptance of responsibility reduction based on defendant’s false denial of the relevant conduct. Under the 1992 amendments to § 3E1.1, a defendant may remain silent about relevant conduct without affecting his ability to obtain the reduction. However, a defendant who falsely denies relevant conduct that a court determines to be true has acted in a manner inconsistent with acceptance of responsibility. U.S. v. Schuler, 34 F.3d 457 (7th Cir. 1994).

 

7th Circuit says defendant not required to accept responsibility for conduct that is not “relevant.” (482) Defendant threatened a 14-year-old mentally retarded girl with a silencer-equipped gun, warning that he would harm “a lot of people” if she reported his sexual abuse. Defendant was convicted in federal court of possessing two unregistered silencers. The district court denied a reduction for acceptance of responsibility in part because defendant refused to accept responsibility for the obstruction of justice or the sexual assault. The 7th Circuit held that defendant might be eligible for the reduction because he acknowledged his responsibility for possessing the unregistered silencers. He was not required to accept responsibility for the obstruction of justice or the sexual assault because they were not relevant conduct under § 1B1.3. U.S. v. Ritsema, 31 F.3d 559 (7th Cir. 1994).

 

7th Circuit holds that, under pre-1992 guidelines, defendant must accept respon­sibility for all rele­vant conduct. (482) Agreeing with the majority of courts, the 7th Circuit held that, under the pre-1992 guide­lines, a defendant must accept responsibility for both his offense of conviction and his re­lated crimi­nal conduct to receive a two level reduction under section 3E1.1.  Considera­tion of related conduct does not violate a de­fendant’s right against self-incrimina­tion.  The denial of a section 3E1.1 reduction is not a penalty.  A defendant who remains silent is only de­nied the benefit of having his sentence reduced as a reward for affirmatively admit­ting both to his offense and to his related conduct.  The 1992 amendment to section 3E1.1, which, in part, states that a court should consider whether a defendant falsely denies relevant conduct, is a substantive change and not a clarification.  The amend­ment is not retroactive.  Ebbole v. U.S., 8 F.3d 530 (7th Cir. 1993).

 

7th Circuit denies reduction where defen­dant falsely denied relevant conduct. (482) The 7th Circuit upheld the denial of a reduction for acceptance of responsibility based on defendant’s denial of related con­duct.  It was true that under note 1(a) to sec­tion 3E1.1, as amended effective November 1992, a defendant need only accept responsi­bility for the conduct underlying his offense of conviction and should not be required to af­firmatively “come clean” on relevant conduct in order to obtain the reduction.  However, a defendant who falsely denies relevant con­duct, as defendant did here, is not entitled to the reduction.  Thus, even if the amendment applied to defendant retroactively, he was not entitled to the reduction.  U.S. v. Cedano-Ro­jas, 999 F.2d 1175 (7th Cir. 1993).

 

7th Circuit sees no 5th Amendment bar­rier to denying acceptance credit for lie about non-convicted conduct. (482) Defen­dant argued that he was denied a downward adjustment for acceptance of responsibility in violation of the right against self-incrimina­tion because the denial was based on defen­dant’s statements about conduct other than the offense of conviction.  The 7th Circuit disagreed.  While prior cases suggested that the circuit would not find a 5th Amendment violation in denying the adjustment for a de­fendant who refused to accept responsibility for related conduct, the court reserved deci­sion on that point.  Even assuming applica­bility of the 5th Amendment, the court con­cluded that defendant’s lies about related conduct would not be protected.  U.S. v. Corbin, 998 F.2d 1377 (7th Cir. 1993).

 

7th Circuit requires defendant to accept responsi­bility for rele­vant conduct despite Fifth Amend­ment claim. (482) Defendant complained that he was denied a downward adjustment for accep­tance of responsibil­ity based on his denial of un­charged relevant con­duct.  The 7th Circuit affirmed, noting that guideline amendments have clarified that a defendant must accept responsibility for “relevant conduct,” not for some smaller cate­gory of “related conduct.”  While recognizing that some circuits have disagreed, the court concluded that the right against self-incrimina­tion is not violated by the guideline when the defen­dant has not asserted his Fifth Amendment right to remain silent about un­charged relevant conduct, but instead has denied the conduct and the district court has found that he lied.  U.S. v. White, 993 F.2d 147 (7th Cir. 1993).

 

8th Circuit denies acceptance reduction where defen­dant falsely denied relevant conduct and there is no evidence of claimed coercion. (482) Defendant pled guilty to conspiracy to distribute methamphetamine and reentry as a previously removed alien. He appealed the district court’s refusal to grant a three-level acceptance-of-responsibility reduction. The district court had found that defendant challenged a § 2D1.1(b)(5) importation en­hancement by falsely denying the importation of the meth, and falsely claimed his participation was coerced by threats. The Eighth Circuit affirmed. Although defen­dant argued that he made a “good faith” objection to the impor­tation enhancement, pled guilty, and generally cooperated, the district court found that defendant falsely denied relevant conduct. In addition, the court found “simply no evidence” of coercion. Defendant had stated in his sentencing memo that he was often threatened, and his family in Mexico would be harmed if he did not continue to work in the conspiracy. U.S. v. Rivera-Mendoza, 682 F.3d 730 (8th Cir. 2012).

 

8th Circuit denies reduction where defendant denied involvement in uncharged crack deals. (482) Defendant was arrested after a crack cocaine transaction.  The district court relied on defendant’s post-arrest statements describing his previous crack transactions to determine drug quantity.  However, at sentencing, defendant denied that he had engaged in the prior crack transactions assessed against him as relevant conduct.  The 8th Circuit held that defendant’s denial was inconsistent with an acceptance of responsibility, and upheld the denial of a section 3E1.1 reduction.  U.S. v. Wyatt, 26 F.3d 863 (8th Cir. 1994).

 

8th Circuit directs court to reconsider whether defendant falsely denied relevant conduct. (482) Defendant argued that the district court erroneously denied him a re­duction because he refused to accept respon­sibility for offenses other than those to which he pled guilty.  Since the case was being re­manded on other grounds, the 8th Circuit di­rected the district court to reconsider this is­sue in light of the November 1992 amend­ments to the application notes to section 3E1.1.  They provide that a defendant is not required to affirmatively admit relevant con­duct beyond the offense of conviction in order to obtain an acceptance of responsibility re­duction.  However, a defendant who falsely denies relevant conduct has acted in a man­ner inconsistent with acceptance of responsi­bility and may be denied the reduction.  U.S. v. Matthews, 5 F.3d 1161 (8th Cir. 1993).

 

8th Circuit denies reduction where defen­dant did not accept responsibility for un­charged drug quantities. (482) The 8th Cir­cuit rejected defendant’s claim that he was entitled to a reduction for acceptance of re­sponsibility simply because he pled guilty to conspiring to possess 42 pounds of mari­juana.  First, a defendant is not entitled to a reduction simply because he pleads guilty.  Second, the court found that defendant was involved with 125 pounds of marijuana.  Ac­cepting responsibility for 42 pounds of mar­ijuana is different than accepting responsibil­ity for the full amount.  U.S. v. Abanatha, 999 F.2d 1246 (8th Cir. 1993).

 

8th Circuit holds lie need not involve “relevant conduct” to preclude acceptance of responsibility adjustment. (482) Defen­dant maintained that he grew marijuana solely for personal use, but substantial evi­dence indicated that he actually sold it.  Nev­ertheless, defendant argued that his position could not justify denying him an adjustment for acceptance of responsibility, since whether he intended to sell the plants was neither an element of the offense of conviction nor “relevant conduct” under 1B1.3.  The 8th Circuit disagreed.  False statements at a plea hearing, whether regarding relevant criminal conduct or otherwise, are “inconsistent” with acceptance of responsibility.  U.S. v. Welna, 998 F.2d 599 (8th Cir. 1993).

 

8th Circuit denies acceptance credit where defen­dant did not admit related conduct. (482) Defen­dant  pled guilty to receiving a photograph of a minor engaging in sexually ex­plicit conduct, and the charge of producing the photo­graph was dismissed.  His wife pled guilty to mispri­sion of defendant’s felony.  Notwithstanding the dis­missal of the charges relating to producing the pho­tograph, the dis­trict court found that defendant took the pho­tos involved.  The 8th Circuit upheld the de­nial of a re­duction for accep­tance of respon­sibility for both de­fendant and his wife based on their claim that they did not know who took the photographs.  The back­ground commentary to the 1991 version of sec­tion 3E1.1 provides that a defendant may receive the re­duction if he or she ac­cepts responsi­bility for the of­fense and related con­duct.  U.S. v. Jones, 994 F.2d 456 (8th Cir. 1993).

 

9th Circuit says unrelated criminal conduct may show lack of acceptance of responsi­bility. (482) Defendant pleaded guilty to being a felon in possession of a firearm. While awaiting sentenc­ing at a county jail, defendant was involved in a physical altercation in which he played a “culpable role.” At sentencing, the district court held that the incident showed that defendant had failed to accept responsibility and declined to give defendant a downward adjustment on that ground. The Ninth Circuit held that a district court may, in its discretion, consider criminal activity unrelated to the offense of conviction in evaluating whether a defendant has voluntarily withdrawn from crim­inal conduct for purposes of granting a sentencing reduction for acceptance of responsi­bility. U.S. v. Mara, 523 F.3d 1036 (9th Cir. 2008).

 

9th Circuit says that trial on one of two indictments does not bar acceptance reduction at sentencing in both cases. (482) Defendant was charged in two separate indictments with engaging in two fraudulent schemes. He went to trial on the first indictment and was convicted; he then pled guilty to the second indictment. At a combined sentencing hearing for the convictions arising out of both indictments, the district court awarded defendant a reduction for acceptance of responsibility over the government’s objection that defendant’s decision to go to trial showed that he had not accepted responsibility for all of the charges that he faced. On the government’s appeal, the Ninth Circuit affirmed, holding that a district court may grant a defendant charged in two separate indictments that are combined for sentencing a downward adjustment for acceptance of responsibility if the defendant pleads guilty to all charges in one indictment, even if the defen­dant goes to trial on the charges in the other indictment. U.S. v. Kellum, 372 F.3d 1141 (9th Cir. 2004).

 

9th Circuit requires acceptance of responsi­bility for all counts of conviction. (482) Defendant was convicted of two bank robberies, but accepted responsibility for only one. The Ninth Circuit agreed with the Third and Fifth Circuits that a defendant is not entitled to an adjustment for acceptance of responsibility when he does not accept responsibility for all of the counts of which he is convicted. U.S. v. McDowell, 888 F.2d 285, 293 (3rd Cir. 1989); U.S. v. Kleinebreil, 966 F.2d 945, 951-53 (5th Cir. 1992). This is because, under the guidelines, credit for acceptance of respon­sibility is given only after the base offense level for all offenses of conviction is computed. U.S. v. Ginn, 87 F3d 367 (9th Cir. 1996).

 

9th Circuit orders third level off where defendant was acquitted on only charge he contested. (482) From the beginning, defendant admitted he was involved in the illegal weapons offenses but denied involvement in his co-defendant’s drug trafficking. He offered to plead guilty to the firearms charges, and at trial, he fully admitted ownership and unlawful possession of the weapons. He was convicted of the firearms charges but acquitted of all drug charges. Under guideline § 3E1.1(b) a defendant is entitled to a reduction in his offense level by two points for acceptance of responsibility and by a third point if he timely provides complete information concerning his own involvement in the offense. The district court refused to give defendant the third level off, but on appeal the Ninth Circuit reversed because defendant had timely provided complete information about the offenses for which he was convicted. The court said he could not be punished for failing to provide information about offenses for which he had been acquitted. Nor did it matter that the district court found that defendant’s information was not “complete,” because the incomplete information did not affect defendant’s criminal liability. U.S. v. Eyler, 67 F.3d 1386 (9th Cir. 1995).

 

9th Circuit says lying about motive does not preclude adjustment for acceptance of responsibility. (482) The district judge found that defendants lied about their motive for importing opium into the country, but nevertheless found that they accepted responsibility. The government appealed, arguing that because the defendants obstructed justice by lying, they were ineligible for a downward adjustment for acceptance of responsibility. The 9th Circuit rejected the government’s argument and affirmed the district court, stating it was bound by U.S. v. Gonzalez, 16 F.3d 985, 991 (9th Cir. 1993), “which establishes that lying about motive to commit the crime does not preclude downward adjustment for acceptance of responsibility, where the lie would not establish a defense to the crime or avoid criminal liability.” U.S. v. Khang, 36 F.3d 77 (9th Cir. 1994).

 

9th Circuit says false denial of relevant conduct earns no credit for acceptance of responsibility. (482) Under U.S. v. Piper, 918 F.2d 839, 840 (9th Cir. 1990), a defendant cannot be required to admit to uncharged conduct or to relinquish his Fifth Amendment right to silence in order to obtain credit for acceptance of responsibility. But in U.S. v. Olea, 987 F.2d 874, 878 (1st Cir. 1993), the 1st Circuit held that this rule does not allow a defendant to give false information about relevant conduct. Here, the 9th Circuit agreed with Olea and upheld the denial of credit for acceptance of responsibility. Although defendant pled guilty to being a felon in possession of a firearm, he denied using the gun to rob a sandwich shop. This robbery was “relevant conduct,” and it was captured on videotape viewed by the sentencing judge. Defendant could have remained silent about the robbery without being penalized. But his false denial was inconsistent with acceptance of responsibility. U.S. v. Rutledge, 28 F.3d 998 (9th Cir. 1994).

 

9th Circuit says court did not improp­erly consider offenses outside the of­fense of conviction. (482) Defendant argued that the district court improperly denied the two level reduction because, while he ad­mitted his guilt in committing a fraud, he stated that he also believed he was entitled to social security dis­ability benefits based on his medical condi­tion.  The 9th Circuit rejected the argument, ruling that the dis­trict court did not expressly base its decision on de­fendant’s statements regarding the so­cial security benefits.  In­stead, the dis­trict court appeared to have re­lied on “the government’s argument that [defendant] had shown no remorse for having committed his of­fense of convic­tion.”  U.S. v. Scarano, 975 F.2d 580 (9th Cir. 1992).

 

9th Circuit finds no acceptance of re­sponsibility where defendant showed no remorse. (482) Defen­dant argued that he showed no remorse because he could not discuss criminal behavior of which he was yet to be convicted.  The 9th Circuit rejected the ar­gument, ruling that the reduction was not denied be­cause defendant refused to discuss un­charged be­havior but because he did not exhibit remorse for the conduct for which he was convicted.  U.S. v. Daly, 974 F.2d 1215 (9th Cir. 1992).

 

9th Circuit upholds denial of credit for accep­tance of re­sponsibility for offense of convic­tion. (482) Guideline § 3E1.1 requires that a defendant ac­cept responsi­bility “only for the offense of conviction.”  The defendant ar­gued that he was denied credit for acceptance of re­sponsibility be­cause he did not elaborate on his involve­ment in the “whole criminal en­terprise.”  The 9th Circuit held that the record did not support this assertion.  The sentenc­ing court stated that the defendant did not accept responsi­bility “for his acts, pri­marily his acts of perjury.”  Only after the court announced its decision did the de­fendant make statements apologizing for his perjury.  U.S. v. Goodrich, 919 F.2d 1365 (9th Cir. 1990).

 

9th Circuit rules that defendant need only ac­cept responsi­bility for the offense of convic­tion. (482) In U.S. v. Perez-Franco, 873 F.2d 455, 459 (1st Cir. 1989), the 1st Circuit held that a reduction for acceptance of responsi­bility may not be conditioned on defendant’s acknowl­edgement of responsibil­ity for dis­missed counts.  The 1st Circuit’s reasoning has been endorsed by the 2nd, 6th and 10th Cir­cuits, but rejected by the 4th, 5th and 11th Cir­cuits.  Here the 9th Circuit agreed with Perez-Franco “that a defendant may controvert evi­dence of other criminal conduct at sentencing without thereby losing the reduction for ac­ceptance of responsibility.”  “To merit such a reduction a defendant must show contrition for the crime for which he was convicted, but need not ac­cept blame for all crimes of which he may be accused.”  However, the court added that evidence of continued crimi­nal activity may be used to cast doubt his sincere accep­tance of re­sponsibility for the offense of convic­tion.  U.S. v. Piper, 918 F.2d 839 (9th Cir. 1990).

 

10th Circuit says defendant did not falsely deny relevant conduct by requiring govern­ment to meet burden of proof. (482) The government argued that defendant was not entitled to receive a three-level acceptance of responsibility reduction because he frivolously contested his relevant conduct by objecting to the amount of methamphetamine being attributed to him. The Tenth Circuit upheld the district court’s finding that defendant was entitled to a three-level acceptance of responsibility reduction. Defendant admitted to the drug quantities directly attribut­able to him. The rules of crimi­nal procedure and the guidelines permit a defendant to object to drug quantities he believes are not attributable to him. Defendant did not frivolously contest relevant conduct when he simply required the government to bear its burden of proof. Moreover, early in the proceedings, the govern­ment offered a package plea agreement condi­tioned on each defendant accepting the agree­ment. Defendant accepted the offer, but it was withdrawn after one of the defendants refused to entered into it. Thus, defendant showed an early acceptance of responsibility. U.S. v. Virgen-Chavarin, 350 F.3d 1122 (10th Cir. 2003).

 

10th Circuit says lie about cocaine source was lie about relevant conduct. (482) Defendant pled guilty to cocaine conspiracy charges. The district court denied him an acceptance of responsibility reduction because it found that he had lied about the source of his cocaine. Defendant argued that a lie about the actions of a co-conspirator can never be considered grounds for denying the reduction. The Tenth Circuit ruled that defendant’s lie about the source of the cocaine was a lie about relevant conduct; thus the court properly denied the acceptance reduction. The lie told by defendant involved the identity of a participant in the conspiracy. Under the guidelines, defendant was accountable for any reasonable foreseeable acts committed by others “in furtherance of the jointly undertaken criminal activity.” When a defendant falsely identifies a participant in the criminal activity, investi­gators are hindered in determining all acts committed in furtherance of the jointly undertaken criminal activity. Thus, defendant’s false identification of the source of the cocaine necessarily constituted a lie about relevant conduct. U.S. v. Patron-Montano, 223 F.3d 1184 (10th Cir. 2000).

 

10th Circuit denies acceptance credit for understating drugs in relevant conduct. (482) Defendant was convicted of metham­phetamine conspiracy charges. Although he admitted the facts underlying the charges, the court refused to grant him a § 3E1.1 reduction because it found that he “falsely denied and frivolously contested” relevant conduct which the court found to be true. The Tenth Circuit affirmed, holding that the § 3E1.1 reduction was properly denied based on defendant’s false denial of relevant conduct. The government proved that defendant was accountable for about 12 kilograms of methamphetamine, while defen­dant testified that he was responsible for only 4 or 5 kilograms. The court found defendant’s testimony was not credible. Because he signifi­cantly understated the amount of drugs properly attributable to him, the court properly denied the reduction. U.S. v. Cruz-Camacho, 137 F.3d 1220 (10th Cir. 1998).

 

10th Circuit denies acceptance reduction for understating culpability in relevant conduct. (482) Although defendant admitted the elements of the offense of conviction, the district court denied a § 3E1.1 reduction because defendant had understated his culpability for other relevant conduct. Defendant admitted participating in a significantly lesser number of episodes of transporting marijuana than the government had proven. Defendant argued that admitting the offense of conviction was all that was required. The Tenth Circuit upheld the denial of the adjustment, finding that defendant had falsely denied his involvement in relevant conduct. Although a defendant is not required to affirmatively admit relevant conduct beyond the offense of conviction, a defendant cannot falsely deny, or frivolously contest, relevant conduct. U.S. v. Contreras, 59 F.3d 1038 (10th Cir. 1995).

 

10th Circuit says denial of relevant conduct is grounds for denying credit for acceptance. (482) When confronted by a prison guard, defendant refused to submit to a pat search, and ran away.  The guard observed defendant pull a shank out of his sock and throw it into a cubicle.  Defendant pled guilty to interfering with an officer engaged in the performance of his official duties.  He argued he should not have been denied a reduction for acceptance of responsibility because the actions he denied, possessing and throwing away the shank, were not elements of the offense of conviction.  The 10th Circuit ruled that a defendant’s denial of conduct that is not part of the offense of conviction may be relied on to deny credit for acceptance of responsibility.  Carrying and throwing away the shank was relevant conduct which defendant falsely denied.  Therefore, the reduction could be properly denied.  U.S. v. Anderson, 15 F.3d 979 (10th Cir. 1994).

 

10th Circuit denies reduction because de­fendant re­fused to accept responsibility for dismissed counts. (482) The 10th Cir­cuit affirmed the district court’s deci­sion to deny defen­dant a reduction for acceptance of responsi­bility.  “A guilty plea to one count of a multi-count indict­ment does not nec­essarily entitle a defen­dant to a re­duced offense level based upon acceptance of responsibil­ity.”  De­fendant appeared to have accepted responsi­bility for his acts underlying the count of con­viction, and “little more.”  U.S. v. Ruth, 946 F.2d 110 (10th Cir. 1991).

 

10th Circuit rejects argument that acceptance of responsi­bility provision subjects defendant to “Hobson’s Choice.”  (482) When defendant was inter­viewed by the probation offi­cer writ­ing the presentence report, he admitted dealing in 24 ounces of heroin, rather than the 5 ounces specified in the indictment.  He argued that U.S.S.G. § 3E1.1 presents an imper­missible “Hobson’s Choice” between confessing to acts that could lead to a greater sentence, and refusing to confess, which would result in the denial of the two level re­duction for ac­ceptance of responsibility.  The 10th Cir­cuit rejected the argument, holding that defendant was not re­quired to disclose uncharged evi­dence in order to satisfy the acceptance of re­sponsibility provision.  More­over the court said that a downward adjustment under § 3E1.1 does not constitute a “penalty or an en­hancement of sentence.”  U.S. v. Rogers, 899 F.2d 922 (10th Cir. 1990).

 

11th Circuit denies acceptance reduction to defendant who falsely denied relevant conduct. (482) Defendant was part of an operation that smuggled individuals from Cuba to Florida by boat. Defendant argued that he was entitled to an acceptance of responsibility reduction because he attempted to plead guilty to the conspiracy charge, even though he did not admit guilt to the remaining charges. However, defendant pro­ceed­ed to trial and falsely denied relevant conduct that the district court later found to be true. The Eleventh Circuit held that the district court did not err in denying defendant the reduction. U.S. v. De La Cruz Suarez, 601 F.3d 1202 (11th Cir. 2010).

 

11th Circuit denies acceptance reduction to defendant who falsely denied relevant conduct. (482) Defendant was part of an operation that smuggled individuals from Cuba to Florida by boat. Defendant argued that he was entitled to an acceptance of responsibility reduction because he attempted to plead guilty to the conspiracy charge, even though he did not admit guilt to the remaining charges. However, defendant proceed­ed to trial and falsely denied relevant conduct that the district court later found to be true. The Eleventh Circuit held that the district court did not err in denying defendant the reduction. U.S. v. De La Cruz Suarez, 601 F.3d 1202 (11th Cir. 2010).

 

11th Circuit denies acceptance reduction to defendant who falsely denied relevant conduct. (482) Defendant argued that he was entitled to an acceptance of responsibility reduction because he did not take the government to trial, conceded the applica­bility of all guideline enhancements except one, and submitted an acceptance of responsi­bility letter to probation. However, 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. Here, defendant challenged a § 2G2.2 for engaging in a pattern of activity involving the sexual abuse or exploitation of a minor, despite detailed “Spy Reports” compiled by defendant himself that detailed his repeated abuse of children. The Eleventh Circuit upheld the denial of the acceptance reduction. U.S. v. Moriarty, 429 F.3d 1012 (11th Cir. 2005).

 

11th Circuit denies § 3E1.1 reduction where defendant admitted kidnapping but denied rape. (482) Defendant kidnapped a woman from a gas station, drove her across state lines, and raped her. He pled guilty to kidnapping. He claimed he accepted responsibility by admitting to kidnapping the victim and that a dispute about whether he raped her was a sentencing issue that should not have precluded a § 3E1.1 reduction. The Eleventh Circuit held that defendant’s claim that the victim consented to sexual intercourse was inconsistent with his claim of acceptance of responsibility. A defendant does not warrant a § 3E1.1 reduction if he falsely denies relevant conduct for which he is accountable. U.S. v. Lewis, 115 F.3d 1531 (11th Cir. 1997).

 

11th Circuit says felon in possession must accept responsibility for acts while he possessed gun. (482) Defendant pled guilty to posses­sion a firearm by a felon. He admitted using a gun to commit a robbery, but claimed he could not remember whether he had pulled the trigger. The district court denied a § 3E1.1 reduction because defendant was not forthright about brandishing the gun and pulling its trigger. Defendant argued that these actions did not constitute relevant conduct because they were not used to calculate his offense level. The Eleventh Circuit held that the actions were relevant conduct because they occurred during the offense of conviction. Relevant conduct is not limited to those acts and omissions that are used to calculate the applicable guideline range. U.S. v. Coe, 79 F.3d 126 (11th Cir. 1996).

 

11th Circuit denies reduction to defendant who denied involvement in additional conduct. (482) The 11th Circuit upheld the denial of a reduction for acceptance of re­sponsibility to a defendant who ob­jected to the presentence report and denied that he had used 12 of the aliases attributed to him.  Evi­dence at sentencing proved that defen­dant’s picture appeared in 13 different driver’s license photos, all bearing fictitious names corresponding with the names on fraudulently obtained bank accounts.  De­fendant also denied involvement in any fraudulent ac­tivity other than alleged in the counts of conviction.  There was evidence that he came to the United States as a teacher to train other Nigerians how to perpe­trate fraud, but defendant denied this.  U.S. v. Chukwura, 5 F.3d 1420 (11th Cir. 1993).

 

11th Circuit rejects acceptance of responsibil­ity where de­fen­dant denied involvement in un­charged related conduct. (482) Defendant challenged the sentencing court’s consider­ation of uncharged conduct in calculating defendant’s base offense level.  Noting that in order to be entitled to a reduc­tion in base offense level for ac­ceptance of responsibility, a defendant must accept re­sponsibility for related conduct, the 11th Circuit upheld the trial court’s refusal to reduce defen­dant’s base of­fense level for ac­ceptance of responsibility.  The court also re­jected defendant’s argument that guidelines § 3E1.1 violated his 5th Amendment right against self-incrimination.  U.S. v. Ignan­cio Munio, 909 F.2d 436 (11th Cir. 1990).

 

D.C. Circuit remands where defendant may have been penalized for exercising right to remain silent. (482) Defendant argued that the district court erred by denying him an accep­tance of responsibility reduction based in part on his unwillingness to discuss matters protected by the 5th Amendment. Specially, defendant did not cooperate with the govern­ment’s bribery inves­tigation by identifying the source of the funds he failed to report on his tax returns. The D.C. Circuit did not resolve the constitutional issue of whether defendant was required to disclose the source of his funds, because it could not determine from the record whether the court did in fact take into account defendant’s refusal to disclose the source of his funds when it denied him credit under § 3E1.1. On remand, the court should clarify the basis, and if necessary, reconsider its conclusion that defendant did not accept responsibility for his crimes. If the court does not consider defendant’s refusal to disclose the source of the funds in deciding whether to grant or deny him credit under § 3E1.1, then there will be no 5th Amendment issue. U.S. v. Saani, 650 F.3d 761 (D.C. Cir.  2011).

 

D.C. Circuit declines to decide whether prior guide­line required ac­ceptance of responsibil­ity for related conduct. (482) Defendant argued that he was denied an ac­ceptance of respon­sibility reduc­tion be­cause of his refusal to accept re­sponsibility for con­duct out­side the offense of convic­tion.  At the time of de­fendant’s sen­tencing in July 1991, the guideline re­quired a defen­dant to accept responsibility for “his criminal con­duct.”  A majority of other circuits have interpreted this to require accep­tance of responsibil­ity for all re­lated conduct.  However, amend­ments to sec­tion 3E1.1 and its commentary, effective Novem­ber 1, 1992, indicate that it ap­plies only to the of­fense of conviction.  Since this revision would render any in­terpretative ruling of little future effect, and given the ambiguity in the trial court’s ruling, the court re­manded for resentencing (which would occur under the new guidelines).  U.S. v. Hicks, 978 F.2d 722 (D.C. Cir. 1992).

 

D.C. Circuit denies acceptance of responsibil­ity reduc­tion where defendant admitted guilt on only 1 of 3 charges. (482) Defendant was convicted of two drug-re­lated offenses and a firearm offense.  The D.C. Circuit found that defendant was properly denied a reduction in offense level for acceptance of responsibility, since de­fendant only admit­ted at trial to pos­sessing the firearm, but refused to admit guilt on the drug-related charges.  Defendant com­plained about the judge’s reference to U.S. v. Gordon, 895 F.2d 932 (4th Cir.) (1990), which broadly stated that a defendant must accept responsi­bility for all of his criminal conduct.  Although that statement might be extreme, this was not a case in which a defendant ac­cepted responsibility for all but a trivial element of the of­fense charged. U.S. v. Hazel, 928 F.2d 420 (D.C. Cir. 1991), overruled on other grounds by U.S. v. Dorcely, 454 F.3d 366 (D.C.Cir. 2006).

 

Article supports constitutionality of con­sidering conduct unrelated to of­fense of conviction under  3E1.1. (482) A student author describes the various ap­proaches that courts have taken in consider­ing whether a court may condi­tion a down­ward adjustment for accep­tance of responsi­bility on the defen­dant’s acceptance of re­sponsibility for conduct not included in the count of conviction.  The author discusses the courts’ various interpretations of  3E1.1, as well as the arguments that have been of­fered regarding whether the provi­sion unconstitu­tionally burdens the defen­dant’s fifth amendment right to silence, concluding that the con­stitution is not violated by permit­ting consideration of conduct not included in the offense of conviction.  Note, Section 3E1.1 Contrition and Fifth Amendment In­crimination: Is There an Iron Fist Be­neath the Sen­tencing Guidelines’ Velvet Glove?  65 St. John’s L. Rev. 1077-1103 (1991).

Browse Contents

  • 100 Pre-Guidelines Sentencing, Generally
  • 110 Guidelines Sentencing, Generally
  • 150 Application Principles, Generally
  • 200 Offense Conduct, Generally
  • 400 Adjustments, Generally
  • 500 Criminal History, Generally
  • 550 Determining the Sentence
  • 700 Departures, Generally
  • 750 Sentencing Hearing, Generally
  • 780 Plea Agreements, Generally
  • 800 Violations of Probation and Supervised Release
  • 840 Sentencing of Organizations
  • 850 Appeal of Sentence (18 U.S.C. §3742)
  • 880 Habeas Corpus / 28 U.S.C. 2255 Motions
  • 900 – Forfeitures, Generally

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