§484 Acceptance of Responsibility: Constitutional Issues
1st Circuit upholds forcing defendant to choose between contesting enhancement or remaining silent. (310)(484) Defendant pled guilty to possession of child pornography. Based on victim testimony that defendant had sexually abused the victim as a child, the district court applied a five-level enhancement for “a pattern of activity involving the sexual abuse or exploitation of a minor.” § 2G2.2(b)(5). Defendant challenged the increase, arguing that he was unable to refute the facts underlying the pattern of activity enhancement without jeopardizing his acceptance of responsibility reduction under § 3E1.1. The First Circuit held that defendant was not denied due process. Defendant could have denied the facts without jeopardizing the reduction as long as his denial was truthful. No criminal defendant has a constitutional right to testify falsely. Although the district court’s explanation about the risks of testifying might have caused defendant to question his ability to refute the victim’s allegations, there was nothing coercive about the court’s comments. U.S. v. Cates, __ F.3d __ (1st Cir. July 25, 2018) No. 17-1423.
9th Circuit remands where court may have punished defendant for going to trial. (120)(484) Defendant, the coach of a girls’ softball team, had sex with one of the players and was convicted of distributing sexually explicit photos to her. At sentencing, the district court referred five times to defendant’s decision to go to trial, stating that “[W]hat I look for is somebody who feels remorse before the trial, before you put this young girl through the—through the agony of testifying, having to testify to what went on, and then identify pictures of herself, personal pictures. So, I don’t see—I don’t see much remorse there.” These and other comments led a majority of the Ninth Circuit panel to remand for resentencing, noting that “the district court appears to have increased [defendant’s] sentence … based on [defendant’s] decision to go to trial.” Judge Rawlinson dissented. U.S. v. Hernandez, __ F.3d __ (9th Cir. July 10, 2018) No. 13-10428.
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.
Supreme Court bars drawing adverse inferences when defendant “takes the Fifth” at sentencing. (484) Petitioner pled guilty to conspiracy and three substantive counts of selling cocaine within 1,000 feet of a school, reserving the right to contest the drug quantity. At sentencing, she put on no evidence and did not testify to rebut the government’s evidence, claiming the Fifth Amendment privilege against self-incrimination. Nevertheless, the judge “held it against” her that she did not testify at sentencing. The Supreme Court reversed, unanimously agreeing that defendant had the right to invoke the Fifth Amendment privilege at sentencing. Moreover, splitting 5-4, the majority held that the sentencing judge may not draw an adverse inference from the defendant’s silence. The majority expressed “no view” as to whether a defendant’s silence may be considered in determining acceptance of responsibility under the sentencing guidelines. Justice Scalia dissented on the latter point, joined by Chief Justice Rehnquist and Justices O’Connor and Thomas. Mitchell v. U.S., 526 U.S. 314, 119 S.Ct. 1307 (1999).
1st Circuit holds that § 3E1.1 does not penalize a defendant for exercising right to appeal. (484) Despite the fact that they pled guilty and went to trial, defendants argued that they were entitled to a reduction for acceptance of responsibility. The First Circuit found this was not the type of “rare situation” in which a defendant who went to trial deserved an acceptance of responsibility reduction, given that even now on appeal, they continued to maintain their factual innocence. Defendant were not being punished for preserving their constitutional right to appeal by maintaining their innocence. Section 3E1.1 does not prejudice or penalize a defendant for exercising his right to appeal. This was not a case in which a defendant’s punishment has been increased for failure to accept responsibility. Defendants who choose to demonstrate remorse are granted special leniency. The fact that § 3E1.1 forces defendants to make a difficult choice does not violate their constitutional rights to trial or to an appeal. U.S. v. Rosario-Peralta, 199 F.3d 552 (1st Cir. 1999).
3rd Circuit says acceptance of responsibility reduction does not place unconstitutional burden on right to trial. (484) Note 2 to § 3E1.1 says that the acceptance of responsibility adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Defendant argued that note 2 creates an unconstitutional burden on defendants by penalizing them for asserting their constitutional right to a trial. The Third Circuit, relying on Corbitt v. New Jersey, 439 U.S. 212 (1978), found that the incentive § 3E1.1 places on a defendant to plead guilty is constitutional. Corbitt held that a state murder statute that provided the potential for a shorter sentence to defendants who pled non vult was constitutional. To the extent Corbitt is in tension with U.S. v. Frierson, 945 F.2d 650 (3d Cir. 1991) (denial of § 3E1.1 is a penalty which cannot be based solely on defendant’s assertion of his Fifth Amendment privilege), a court must follow Corbitt. Section 3E1.1 creates an incentive for defendants to plead guilty that is analogous to the one upheld in Corbitt. U.S. v. Cohen, 171 F.3d 796 (3d Cir. 1999).
3rd Circuit holds Fifth Amendment implicated by denial of reduction for acceptance of responsibility. (484) Defendant pled guilty to unarmed robbery, but refused to admit that he possessed a weapon during the robbery. Defendant contended that it violated his Fifth Amendment self-incrimination rights for the district court to deny him a reduction for acceptance of responsibility based upon his denial of the gun possession. The 3rd Circuit agreed that the denial of a reduction for acceptance of responsibility constitutes a penalty. Thus, defendant had a Fifth Amendment right to refuse to answer questions at any point during the sentencing process in response to questions about his use of a gun and he could not be denied an acceptance of responsibility reduction for electing to exercise that privilege. However, defendant neither invoked the privilege nor did the district court tell defendant that if he invoked the privilege he would be denied the reduction. Thus, defendant’s statements were not compelled, but voluntary, and could be used against him. Judge Garth, dissenting in part, thought defendant’s Fifth Amendment rights had been violated. U.S. v. Frierson, 945 F.2d 650 (3rd Cir. 1991).
4th Circuit rules acceptance of responsibility reduction may be conditioned upon waiver of 5th Amendment rights. (484) Defendant stole money orders worth a potential $5,060,000, and returned all but $698,000 worth. He refused to identify the individual to whom he had given the missing money orders, contending that the provision of such information might subject him to criminal prosecution. The 4th Circuit affirmed the denial of a reduction for acceptance of responsibility based in part upon defendant’s refusal to provide the incriminating information. Conditioning the acceptance of responsibility reduction on a defendant’s waiver of his 5th Amendment privilege against self-incrimination does not penalize the defendant for asserting his 5th Amendment rights. The choice presented to a defendant under section 3E1.1 is analogous to and constitutionally indistinguishable from the choice confronting defendants who are offered a plea bargain. Such choices, while difficult, are not forbidden by the constitution. U.S. v. Frazier, 971 F.2d 1076 (4th Cir. 1992).
5th Circuit says denial of acceptance of responsibility reduction does not violate 5th Amendment. (484) The 5th Circuit summarily rejected defendant’s argument that the denial of an acceptance of responsibility reduction violated his privilege against self-incrimination. Previous cases have rejected this claim. U.S. v. Bermea, 30 F.3d 1539 (5th Cir. 1994).
5th Circuit rejects 5th Amendment challenge to acceptance of responsibility provisions. (484) Defendant argued that the acceptance of responsibility provisions violate the 5th Amendment by requiring individuals to admit guilt in order to receive a sentencing reduction. The 5th Circuit rejected this argument. The cases cited by defendant held that the government may not require a defendant to accept responsibility for offenses of which he has not been convicted. However, a defendant must accept responsibility for all facets of the crime of conviction. Thus, even if the 5th Circuit were to follow those decisions, defendant would not prevail. U.S. v. Singer, 970 F.2d 1414 (5th Cir. 1992).
5th Circuit says acceptance of responsibility provisions do not require self-incrimination. (484) Defendant accepted responsibility for two marijuana convictions, but refused to accept responsibility for an assault because state charges related to the assault were pending against for the same conduct. Following its decision in U.S. v. Mourning, 914 F.2d 699 (5th Cir. 1990), the 5th Circuit rejected defendant’s claim that the district court’s denial of a reduction for acceptance of responsibility violated his 5th Amendment rights against self-incrimination. Affording the possibility of a more lenient sentence does not compel self-incrimination. The government is permitted to reward contrition, and this is not the same as compelling self-incrimination. There is a difference between increasing the severity of a sentence for failure to demonstrate remorse and refusing to grant a reduction from the prescribed base offense level. U.S. v. Kleinebreil, 966 F.2d 945 (5th Cir. 1992).
6th Circuit says § 3E1.1 does not chill right to appeal. (484) Defendants argued that if they acknowledged guilt in order to receive an acceptance of responsibility reduction, their right to appeal would be unconstitutionally chilled. The 6th Circuit rejected the argument, and upheld § 3E1.1. Denial of a downward adjustment is not a penalty, and contrition is an appropriate consideration in imposing sentence. U.S. v. DeFranco, 30 F.3d 664 (6th Cir. 1994).
7th Circuit rules that defendant’s failure to admit all of his involvement in offense of conviction supported denial of reduction. (484) The judge found that defendant was not entitled to an acceptance of responsibility reduction because (1) he failed to admit all of his involvement in the underlying offense; (2) he did not accept responsibility for his actions until the day before trial was scheduled to begin; (3) even after he pled guilty, defendant continued to engage in conduct that violated an injunction; and (4) he never showed any remorse for his actions. Defendant argued that under the Fifth Amendment he had a right not to disclose his financial status and relevant conduct beyond what was necessary to convict for the offense of conviction. The Seventh Circuit found no error. The district court found that defendant failed to admit all of his involvement in the underlying contempt offense. This determination, by itself, was sufficient to support denial of the reduction. The district court did not need to consider defendant’s refusal to provide probation with a personal financial statement or relevant conduct. U.S. v. Tankersley, 296 F.3d 620 (7th Cir. 2002).
7th Circuit denies acceptance reduction where pretrial motions “manipulated” system. (484) Although defendant pled guilty, the district court denied him an acceptance reduction because defendant had “manipulated” the system. First, defendant sought to have the case dismissed under the Speedy Trial Act based on the ten months of failed negotiations between himself and the government. Moreover, after getting every single term he wanted in the plea agreement, defendant sought to have the indictment dismissed because it didn’t say that the bank victim was insured by the FDIC. The Seventh Circuit upheld the denial of the acceptance reduction, ruling that the district court did not penalize him for seeking these remedies. Instead, the court considered these two motions as part of the larger procedural history of the case. The filing of pretrial motions may be inconsistent with acceptance of responsibility. In the present case, defendant was partially responsible for the delay. Although a defendant has the right to walk away from negotiations he finds unacceptable, defendant’s conduct disclosed a lack of acceptance of responsibility. Also, pleading guilty and then attempting to obtain a dismissal on a frivolous point is disingenuous and wholly inconsistent with acceptance of responsibility. U.S. v. McIntosh, 198 F.3d 995 (7th Cir. 2000).
7th Circuit denies reduction for defendant who denied guilt through sentencing. (484) Defendant argued that he was denied an acceptance of responsibility reduction as punishment for putting the government to its proof. The Seventh Circuit upheld the denial of the reduction, since defendant continued to deny his guilt through the sentencing phase of his prosecution. U.S. v. Rogers, 45 F.3d 1141 (7th Cir. 1995).
7th Circuit finds no 5th Amendment violation where defendant received reduction and was permitted to challenge confession. (484) Defendant argued that his 5th Amendment rights were violated when he accepted responsibility for all his past relevant conduct. As a result of his admissions, the government at sentencing raised issues concerning defendant’s past conduct and the conditional nature of defendant’s plea. The 7th Circuit found defendant’s claim both meritless and curious. The court sustained defendant’s objection to the statement about his prior conduct. Moreover, despite the conditional nature of the plea, the court granted defendant the maximum three-level reduction for acceptance of responsibility, and then sentenced him in the lower half of the resulting guideline range. Thus, it was difficult to see how defendant’s 5th Amendment rights were violated. U.S. v. Springs, 17 F.3d 192 (7th Cir. 1994).
7th Circuit rejects ineffective assistance claim where defendant’s testimony at sentencing was irrelevant. (484) Defendant argued that he was denied effective assistance of counsel when his former counsel called him to testify at sentencing. While testifying, defendant invoked his 5th Amendment right not to incriminate himself and was denied a reduction for acceptance of responsibility. The 7th Circuit rejected this claim, since even assuming counsel was deficient, it did not change the outcome of the proceeding. The district court explicitly noted that defendant’s testimony at sentencing was irrelevant. Defendant did not accept responsibility; throughout the proceedings below, he maintained his innocence. Even in his 28 U.S.C. section 2255 petition, he attempted to prove his lack of involvement in the offenses. Degaglia v. U.S., 7 F.3d 609 (7th Cir. 1993).
7th Circuit sees no 5th Amendment barrier to denying acceptance credit for lie about non-convicted conduct. (484) 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. (484) 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).
7th Circuit affirms that acceptance of responsibility provisions do not violate 5th Amendment. (484) Defendant argued that the acceptance of responsibility provision in section 3E1.1 violates the 5th Amendment because the reduction is only available to those defendants who plead guilty. The 7th Circuit rejected the argument, holding that section 3E1.1 does not contain a per se policy of punishing those who elect to stand trial, despite the fact that leniency is more often granted to defendants who plead guilty. Plea bargain cases teach that not every burden on the exercise of a constitutional right and not every encouragement to waive such a right is invalid. Courts have traditionally been allowed to show leniency based on an expression of remorse, and section 3E1.1 merely formalizes this. As long as the leniency decision is an individualized one, not based merely on the defendant’s decision to go to trial, a defendant’s constitutional rights are not impaired. U.S. v. Saunders, 973 F.2d 1354 (7th Cir. 1992).
8th Circuit says acknowledging lesser-included offense is not acceptance of responsibility. (484) Defendant robbed a bank. He was willing to plead guilty to bank larceny, but denied that his offense involved intimidation, an essential element of robbery. Defendant argued that, by denying his request for an acceptance of responsibility reduction, the district court punished him for exercising his constitutional right to a jury trial. The 8th Circuit held that § 3E1.1 does not punish a defendant for exercising his constitutional right to a jury trial. The reduction is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying factual elements of guilt. Acknowledgment of a lesser-included offense does not amount to acceptance of responsibility. U.S. v. Smith, 40 F.3d 933 (8th Cir. 1994).
8th Circuit denies reduction based on denial of guilt at interview where attorney was not present. (484) The 8th Circuit upheld the denial of a reduction for acceptance of responsibility based on defendant’s denial of guilt at a presentence interview, even though defense counsel was not present. Defendant’s statements at sentencing and at the interview amply supported the denial of the reduction. Defendant did not allege or show that he requested his attorney’s presence or that his attorney was excluded from the interview. U.S. v. Bald Eagle, 997 F.3d 1234 (8th Cir. 1993).
8th Circuit affirms constitutionality of denial of acceptance of responsibility reduction for failure to speak to probation officer. (484) The 8th Circuit summarily rejected defendant’s claim that the denial of a reduction for acceptance of responsibility for not speaking to the probation officer penalized him for exercising his 5th Amendment right to remain silent. U.S. v. Hernandez, 972 F.2d 885 (8th Cir. 1992).
8th Circuit rules denial of credit for acceptance of responsibility was not a Fifth Amendment violation. (484) Defendants argued that they were denied a reduction for acceptance of responsibility because they refused to discuss their cases pending appeal of their convictions. They contended that the district court interpreted their refusal to discuss their case as unwillingness to accept responsibility for their conduct, and that this violated their Fifth Amendment right against self-incrimination. The 8th Circuit rejected this challenge, noting that numerous other Circuit courts have held that the acceptance of responsibility provisions do not violate the Fifth Amendment. U.S. v. Lyles, 946 F.2d 78 (8th Cir. 1991).
9th Circuit rejects claim that trial only occurred to preserve constitutional challenge. (484) Defendant was charged with stalking in violation of 18 U.S.C. § 2261A and was convicted at trial. At sentencing, the district court declined to give him a reduction for acceptance of responsibility. On appeal, defendant argued that he went to trial only to preserve his constitutional challenge to § 2261A. The Ninth Circuit rejected this argument, noting that defendant did not simply pursue his constitutional challenge at trial and instead contested the evidence and sought to convince the jury not to convict him on grounds unrelated to his guilt or innocence. U.S. v. Osinger, 753 F.3d 939 (9th Cir. 2014).
9th Circuit says timely guilty plea requirement does not deprive defendant of effective assistance. (484) Defendant agreed to plead guilty to bank robbery on the day before his scheduled trial. At sentencing, the district court awarded defendant a two-point reduction in his offense level for acceptance of responsibility but declined to give defendant the third point because the government did not move for the reduction. On appeal, defendant argued that the acceptance-of-reduction provision, § 3E1.1(b), denied him the effective assistance of counsel by linking his eligibility for the third acceptance point to the timeliness of his guilty plea. He argued that the provision may require a defendant to decide whether to plead guilty before he has sufficient time to consult with his attorney. The Ninth Circuit held that § 3E1.1 does not deprive defendants of their right to effective assistance. U.S. v. Baldrich, 471 F.3d 1110 (9th Cir. 2006).
9th Circuit holds acceptance credit cannot be denied for moving to suppress statement and going to trial. (484) When arrested by the Border Patrol, defendant admitted that he was an illegal alien, that he had previously been deported from the country and knew it was illegal to return, and that he had committed two felonies. Prior to his trial on charges of illegal reentry after deportation, defendant unsuccessfully moved to suppress his statement. He was then convicted after a jury trial. The district court denied defendant a reduction in offense level under § 3E1.1 for acceptance of responsibility because he had moved to suppress his statement and then required the government to prove his “factual guilt” at trial. The Ninth Circuit held that the district court’s reliance on defendant’s failure to plead guilty and his effort to suppress his statement improperly burdened defendant’s constitutional rights to vindicate his Miranda rights and to go to trial. The court remanded to allow the district court to determine whether defendant expressed contrition, but it also held that if defendant received a two-point reduction under § 3E1.1(a), he should receive the additional one-point reduction under 3E1.1(b), because he admitted the offense when he was arrested. U.S. v. Ochoa-Gaytan, 265 F.3d 837 (9th Cir. 2001).
9th Circuit says defendant’s motion to suppress before pleading guilty cannot be used to deny acceptance credit. (484) The Ninth Circuit held that the district court erred in holding it against defendant that he moved to suppress evidence before pleading guilty. Such a motion is an assertion of a constitutional right. As the court held in U.S. v. LaPierre, 998 F.2d 1460, 1468 (9th Cir. 1993), exercise of a constitutional right cannot be held against a defendant for purposes of adjustment, even though it may reduce the amount of evidence in his favor. With regard to the three levels for pleading guilty prior to trial, the court noted that the guidelines do not mean “motions” when they say “trial.” U.S. v. Vance, 62 F.3d 1152 (9th Cir. 1995).
9th Circuit says credit cannot be denied for exercising right to appeal or failing to discuss role with probation. (484) Defendant was denied an acceptance of responsibility reduction apparently because he reserved the right to appeal and maintained silence with the probation department. The Ninth Circuit found the denial of the reduction ambiguous and remanded for clarification. The court noted that denying the reduction because defendant exercised the right to appeal is error. Further, it would be error to deny the reduction on the basis that defendant refused to discuss his role with the probation officer. If there is insufficient evidence to establish acceptance of responsibility, denial of the reduction is appropriate even if the lack of evidence results from the exercise of constitutional rights. The district court may not, however, discount evidence of contrition because of a refusal to discuss the facts with the probation officer. U.S. v. LaPierre, 998 F.2d 1460 (9th Cir. 1993).
9th Circuit upholds constitutionality of acceptance of responsibility guideline. (484) Defendants challenged the constitutionality of the “acceptance of responsibility” guideline section 3E1.1 arguing that it forces a defendant to relinquish his right to assert his innocence on appeal. Relying on U.S. v. Gonzalez, 897 F.2d 1018, 1021 (9th Cir. 1990), the 9th Circuit rejected the argument. The court observed that the purpose of section 3E1.1 is to encourage defendants to accept responsibility for their actions during the early stages of prosecution. The purpose is not to punish those who choose to exercise their constitutional rights. U.S. v. Davis, 960 F.2d 820 (9th Cir. 1992).
9th Circuit says defendant was not penalized for going to trial. (484) The 9th Circuit ruled that the district court’s pretrial comment showed “only that the court wanted to make sure [defendant] knew that if he was convicted, the court might approve an upward departure” based on the nine counts of bank robbery the government dismissed just before trial. At sentencing the judge specifically stated that her refusal to reduce the sentence for acceptance of responsibility was not based on the defendant’s decision to go to trial. Based on the evidence in the record, the 9th Circuit stated that “we would not be justified in disregarding her statement.” U.S. v. Hall, 952 F.2d 1170 (9th Cir. 1991).
10th Circuit holds denial of acceptance of responsibility reduction did not violate 5th Amendment. (484) The 10th Circuit found no 5th Amendment violation in the district court’s denial of a reduction for acceptance of responsibility based on defendant’s attempt, during his presentence interview, to minimize his participation in the criminal conduct. The 5th Amendment privilege against compelled self incrimination is not self-executing, but must be invoked. If defendant makes disclosures instead of claiming the privilege, the government has not compelled him to incriminate himself. Furthermore, the denial of a section 3E1.1 adjustment is not a penalty or enhancement of sentence implicating the 5th Amendment. U.S. v. Gordon, 4 F.3d 1567 (10th Cir. 1993).
10th Circuit upholds constitutionality of section 3E1.1. (484) The 10th Circuit, relying on Circuit precedent, summarily rejected defendant’s claim that section 3E1.1 imposes a penalty upon him for exercising his constitutional right to a trial. U.S. v. Davis, 1 F.3d 1014 (10th Cir. 1993).
11th Circuit says denial of acceptance credit can be based on assertion of a constitutional right. (484) Defendant was charged with firearms offenses. He moved to dismiss the indictment on Second Amendment grounds, claiming he was a member of a militia group protecting the U.S. from a “New World Order.” After the court rejected his motion, he timely pled guilty to firearms charges. In U.S. v. Wright, 117 F.3d 1265 (11th Cir. 1997), the Eleventh Circuit held that the district court relied on impermissible factors to deny a § 3E1.1 reduction. On rehearing, the same Eleventh Circuit panel upheld the denial of the § 3E1.1 reduction for two reasons. First, the court’s refusal rested mainly on its finding that defendant’s demeanor did not evidence remorse. This finding was entitled to great deference on appeal. Second, even if the court relied exclusively on defendant’s challenges to the constitutionality of his convictions, there was no error. A court may deny a § 3E1.1 reduction based on conduct inconsistent with acceptance of responsibility, even when that conduct includes the assertion of a constitutional right. U.S. v. Wright, 133 F.3d 1412 (11th Cir. 1998), on rehearing of sentencing issue only in U.S. v. Wright, 117 F.3d 1265 (11th Cir. 1997).
11th Circuit upholds requirement that defendant “timely” notify authorities of intent to plead guilty. (484) A defendant may earn an additional one point reduction for acceptance of responsibility under § 3E1.1(b)(2) if the he notifies authorities that he intends to plead guilty early enough to prevent trial preparation by the government. Defendant argued that § 3E1.1 (b)(2) was facially unconstitutional because it impinges on the defense attorney’s ability to investigate possible defenses. The 11th Circuit upheld the constitutionality of § 3E1.1(b)(2). Not every burden on the exercise of a constitutional right and not every encouragement to waive such a right is invalid. However, remand was necessary because the district court made no specific findings as to whether defendant’s notification was timely. The mere fact that the government had begun trial preparation did not make defendant’s notice untimely. It would raise serious constitutional questions to interpret the guideline as requiring that notice of the guilty plea be given before the government has engaged in trial preparation, without any regard to the attorney’s opportunity to investigate the case. U.S. v. McConaghy, 23 F.3d 351 (11th Cir. 1994).
11th Circuit reverses acceptance of responsibility reduction for cooperation during trial and sentencing. (484) The district court granted defendants a reduction for acceptance of responsibility even though they exercised their 5th Amendment right not to incriminate themselves, because they “otherwise cooperated fully at all phases of the trial and sentencing process.” The 11th Circuit reversed, agreeing with the government that this was “tantamount to rewarding them for not disrupting court proceedings.” Defendants never admitted guilt nor expressed remorse for their offenses, and the district court’s reliance on concerns for their 5th Amendment rights was clear error. The district court cited no evidence that defendants did, in fact, accept responsibility for their crimes. U.S. v. Carroll, 6 F.3d 735 (11th Cir. 1993).
11th Circuit finds that court wrongly balanced acceptance of responsibility against exercise of rights. (484) The 11th Circuit held that the district court impermissibly balanced evidence of defendants’ acceptance of responsibility against their exercise of their 5th Amendment right against self incrimination and their right to an appeal. A sentencing court is justified in considering a defendant’s conduct prior to, during, and after trial to determine if the defendant has shown any remorse through his actions or statements. If the defendant has exercised all of his rights during the entire process, the chances of his receiving the two level reduction may well be diminished. But this is simply because it is likely there is less evidence of acceptance to weigh in his favor. However, if a defendant has shown some sign of remorse but has also exercised constitutional or statutory rights, the sentencing judge may not balance the exercise of those rights against the defendant’s remorse to determine whether the “acceptance” is adequate. U.S. v. Rodriguez, 959 F.2d 193 (11th Cir. 1992).
D.C. Circuit holds that court’s reference to defendant’s failure to express remorse was not plain error. (484) Defendant argued that the district court plainly erred, in violation of the 5th Amendment, by referring at sentencing to his failure to express remorse and accept responsibility. The district court had rejected defendant’s plea for leniency because it did not see “any signs of remorse or acceptance of responsibility” for his conduct. The D.C. Circuit found no plain error. A yet-to-be-sentenced defendant “retains a legitimate protectable Fifth Amendment interest in not testifying as to incriminating matters that could yet have an impact on his sentence.” However, it was unclear whether these principles extended to a district court’s consideration of a defendant’s lack of remorse with respect to mitigation or leniency under either the Guidelines or 18 U.S.C. § 3553(a). Given the lack of precedent and the absence of statutory or constitutional reference, the district court’s reference, if error, was not “plain.” U.S. v. Lawrence, 662 F.3d 551 (D.C. Cir. 2011).
D.C. Circuit, en banc, upholds “smaller” reduction for defendant who went to trial. (484) Although defendant went to trial, the district judge granted a reduction for acceptance of responsibility, thereby reducing his guideline range from 151 to 188 months to 121 to 151 months. The judge imposed a 127-month sentence, stating that if defendant had pled guilty, he would have imposed the minimum sentence. The D.C. Circuit, en banc, affirmed, holding that when a sentencing judge gives a defendant credit for acceptance of responsibility, the judge may consider the defendant’s decision to go to trial as evidence that the acceptance was half-hearted. The judge did not impose a punishment based on defendant’s decision to go to trial. Instead, the judge merely viewed defendant’s timing in pleading guilty as pertinent to the scope of the benefit he should receive. Chief Judge Mikva, joined by Judges Wald, Edwards and Sentelle, dissented, believing the judge improperly punished the defendant for going to trial. U.S. v. Jones, 997 F.2d 1475 (D.C. Cir. 1993) (en banc).