§486 Acceptance of Responsibility: Probation Interview/Cooperation
First Circuit
Second Circuit
Third Circuit
Fourth Circuit
Fifth Circuit
Sixth Circuit
Seventh Circuit
Eighth Circuit
Ninth Circuit
Tenth Circuit
Eleventh Circuit
D.C. Circuit
Miscellaneous
6th Circuit affirms denial of acceptance credit for lying at presentence interview. (486) Defendant pleaded guilty to fraud. He then lied to Probation in his presentence interview about the extent of his involvement in the fraud. At sentencing, the district court denied a reduction for acceptance of responsibility. The Sixth Circuit held that a guilty plea, standing alone, does not justify an acceptance-of-responsibility reduction and that defendant’s lies were a proper basis for denying the adjustment. U.S. v. Thomas, __ F.3d __ (6th Cir. Aug. 6. 2019) No. 18-1592.
1st Circuit allows court to consider failure to identify accomplices in denying acceptance credit. (486) Defendant was involved in a carjacking in which a co‑conspirator shot and killed the driver. The district court denied an acceptance of responsibility reduction based on defendant’s refusal to disclose the identity of the other collaborators. The First Circuit held that in appropriate circumstances, a court may consider under § 3E1.1 whether a defendant truthfully has identified accomplices in the offense of conviction. However, if a defendant has not identified his accomplices because he genuinely fears retaliation, but his conduct otherwise demonstrates genuine remorse, a § 3E1.1 reduction might be appropriate. Here, it was unclear whether the court deemed defendant’s failure to identify his associates as sufficient, by itself, to preclude a § 3E1.1 reduction without regard to whether defendant knew the names of his accomplices or feared retaliation. Therefore, remand was necessary. U.S. v. Nunez-Rodriguez, 92 F.3d 14 (1st Cir. 1996).
1st Circuit upholds denial of third point reduction for acceptance of responsibility. (486) Defendant argued he was entitled to a third point reduction for acceptance of responsibility. The 1st Circuit upheld the denial. Even though the district court made no explicit findings in denying a third point, the court’s sentence followed shortly after the prosecutor argued against the extra point, and the appellate court assumed that the prosecutor’s arguments were accepted. Defendant never contested the prosecutor’s claim that defendant did not provide complete information as to his involvement. Since defendant did not plead guilty until after the jury had been empaneled, he also did not provide “timely” notification of his guilty plea to permit the government to avoid the expense of trial preparation. U.S. v. Lombardi, 5 F.3d 568 (1st Cir. 1993), superseded on other grounds by statute as stated in U.S. v. Martin, 363 F.3d 25 (1st Cir. 2004).
1st Circuit denies three level reduction to defendant who provided minimal details about offense. (486) The 1st Circuit rejected defendant’s claim that he should have received a three level, rather than a two level, reduction for acceptance of responsibility. Defendant did not provide complete information about his own involvement in the offense. He provided only a “skeletal description” of the events surrounding the robbery and “minimal details” concerning his own participation. The fact that this reticence was prompted by a desire not to inform on a co-defendant did not change the analysis. Defendant also did not plead guilty in a timely fashion. The parties did not reach a plea agreement until the eve of a second trial date, after the government had fully prepared for trial. There was no suggestion that the government unreasonably prolonged the negotiations in order to deprive defendant of the additional reduction. U.S. v. Donovan, 996 F.2d 1343 (1st Cir. 1993).
1st Circuit upholds acceptance of responsibility provision against constitutional challenge. (484) Defendant argued that where a convicted defendant claims to be innocent, the acceptance of responsibility provision coerces a defendant into waiving his or her right to assert his or her innocence on appeal. The 1st Circuit found no merit in the argument. U.S. v. De Jongh, 937 F.2d 1 (1st Cir. 1991).
1st Circuit upholds constitutionality of guideline for acceptance of responsibility. (484) Defendant argued that the guideline permitting a two-point reduction for acceptance of responsibility placed him in the “unconstitutional dilemma of abandoning his right to incriminate himself or risking a higher sentence.” Agreeing with the 11th Circuit’s opinion in U.S. v. Henry, 883 F.2d 1010 (11th Cir. 1989), the 1st Circuit ruled that the guidelines “merely codify a tradition of leniency and are not an impermissible burden of the exercise of constitutional rights.” U.S. v. Paz-Uribe, 891 F.2d 396 (1st Cir. 1989).
2nd Circuit says third-level acceptance credit cannot be denied on ground that government had to prepare for evidentiary sentencing hearing. (486) Defendant pled guilty without a plea agreement to drug charges. He made certain objections to the PSR’s findings. The night before a scheduled Fatico evidentiary hearing, defendant withdrew all but one of his objections. The Fatico hearing was rescheduled and limited to the one remaining objection. At sentencing, the government recommended a two-level reduction for acceptance of responsibility, but refused to move for the third-level reduction under § 3E1.1(b) because defendant required the government to undergo extensive preparation for a Fatico hearing on multiple sentencing issues. The Second Circuit held that the government’s refusal to move for a third-point reduction under § 3E1.1(b) was based on an unlawful reason. The plain language of § 3E1.1(b) refers only to prosecution resources saved when the defendant’s timely guilty plea allows the government to avoid preparing for trial. Here, it was undisputed that defendant’s guilty plea was timely and spared the government from preparing for trial. A Fatico hearing is not a trial, and defendant’s post-plea objections to the PSR did not require the government to prepare “for trial.” U.S. v. Lee, 653 F.3d 170 (2d Cir. 2011).
2nd Circuit says defendant need not disclose others’ activities to receive additional acceptance reduction. (486) Defendant received a two-level acceptance of responsibility reduction. However, the district court denied the additional one-point reduction under § 3E1.1(b) because defendant had misrepresented the involvement of others in the conspiracy. The Second Circuit reversed, holding that § 3E1.1(b) refers only to the defendant’s “own misconduct” and “own involvement.” A defendant has satisfied the requirements for an adjustment under that section when he has described his own involvement in the crime. Once it is determined that a defendant has completely and truthfully disclosed his criminal conduct to the government, the inquiry under § 3E1.1(b)(1) is complete. U.S. v. Leonard, 50 F.3d 1152 (2d Cir. 1995).
2nd Circuit denies acceptance of responsibility reduction to defendant who refused to admit guilt. (484) Defendant contended he was wrongfully denied a reduction for acceptance of responsibility because he entered a conditional plea and continued to challenge federal jurisdiction. The 2nd Circuit rejected this contention. Defendant was denied the reduction because at sentencing, he stated “I will go to my grave saying I did nothing wrong.” Judge Lasker dissented, finding defendant’s statement was only evidence of defendant’s disagreement with the law as he now understood it. U.S. v. Cook, 922 F.2d 1026 (2nd Cir. 1991).
2nd Circuit rules that requiring acceptance of responsibility for dismissed counts violated 5th Amendment. (484) 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 affirms constitutionality of guideline § 3E1.1 (acceptance of responsibility). (484) The 2nd Circuit rejected a defendant’s contention that the availability of a sentence reduction to one who early admits personal responsibility for the offense is the equivalent of an increase in sentence for one who does not. The court held that the contention that a refusal to grant a reduction penalizes those who maintain their innocence and go to trial was a meritless one. Guideline § 3E1.1 (acceptance of responsibility) is neither unconstitutional nor an impermissible prejudice of the right to appeal in its requirement that a person admit responsibility to receive a two level reduction in the offense level. U.S. v. Parker, 903 F.2d 91 (2nd Cir. 1990).
3rd Circuit rejects acceptance of responsibility reduction despite admissions to police. (486) The Third Circuit upheld the denial of a reduction for acceptance of responsibility under § 3E1.1 even though defendant made “significant admissions” to investigating officers during the execution of a search warrant and during a subsequent interview. Defendant did not admit that he had personally committed the crimes charged in the indictment. Moreover, the adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial. U.S. v. Veksler, 62 F.3d 544 (3d Cir. 1995).
3rd Circuit denies acceptance of responsibility reduction to defendant who raised entrapment defense at trial. (484) Defendant contended that he was entitled to a reduction for acceptance of responsibility because he cooperated with government agents, explained where he obtained his cocaine, and was fully debriefed by the government. He did go to trial and raise an entrapment defense, but pointed to U.S. v. Fleener, 900 F.2d 914 (6th Cir. 1990), in which the 6th Circuit held that assertion of an entrapment defense was not necessarily inconsistent with acceptance of responsibility. The 3rd Circuit rejected defendant’s claim, finding it difficult to reconcile defendant’s claim of entrapment with his claim that he accepted responsibility. Ordinarily, a claim of entrapment would seem to be the antithesis of acceptance of responsibility, since the defendant, rather than accepting personal responsibility, urges that the government bears responsibility for the offense. Although it was possible to hypothesize a case in which a plea of entrapment was not inconsistent with acceptance of responsibility, this was not such a case. U.S. v. Demes, 941 F.2d 220 (3rd Cir. 1991).
3rd Circuit holds failure to cooperate with probation office shows no acceptance of responsibility. (486) Defendant appealed denial of two-level reduction for acceptance of responsibility. Defendant refused to cooperate with the probation officer during presentence report, failed to appear at his original sentencing hearing and continued to contend he was entrapped. On these facts the 3rd Circuit ruled that the district court’s ruling was not clearly erroneous. U.S. v. Cianscewski, 894 F.2d 74 (3rd Cir. 1990).
4th Circuit rejects acceptance of responsibility reduction despite defendant’s offer to cooperate. (485) The 4th Circuit affirmed the denial of a reduction for acceptance of responsibility, even though early in the proceedings defendant approached the government with an offer to give testimony and actually confirmed some aspects of the drug conspiracy for the government. The government did not find the information useful and was unwilling to enter into a plea agreement with defendant. The district court’s conclusion that this exchange between defendant and the government was insufficient to demonstrate that defendant had accepted responsibility was not clearly erroneous. U.S. v. Riley, 991 F.2d 120 (4th Cir. 1993).
4th Circuit says court considered all the facts in denying acceptance of responsibility reduction. (486) Defendant stole money orders worth a potential $5,060,000, and returned all but $698,000 worth. He argued that the district court improperly used a “per se” rule to deny him an acceptance of responsibility reduction, requiring complete assistance to receive the reduction, without regard to whether defendant had indicated his acceptance in other ways. The 4th Circuit found that the district court did not base its decision solely on the fact that defendant did not fully cooperate with authorities. Rather, the district court based its decision on a number of factors. As factors weighing against reduction, the court noted that defendant had not voluntarily made restitution, had failed to fully assist the authorities in recovering the fruits of the offense, and had declined to reveal to whom those money orders had been given. In favor of a reduction, the court considered both that defendant had pled guilty to the charges and had turned over some of the missing money orders. U.S. v. Frazier, 971 F.2d 1076 (4th Cir. 1992).
5th Circuit reverses government’s withholding of acceptance reduction for refusal to waive right to appeal. (486) Defendant pled guilty to reentry by a deported alien, in violation of 8 U.S.C. § 1326. At sentencing, the government withheld an additional one-level reduction under § 3E1.1(b) for pretrial acceptance of responsibility solely because defendant refused to waive his right to appeal. Amendment 775 became effective November 1, 2013, after defendant was sentenced, but while his appeal was pending. Amendment 775 provides that the government should not withhold a § 3E1.1(b) motion based on interests not identified in § 3E1.1, such as whether the defendant agrees to waive his or her right to appeal. After Amendment 775 became effective, the government conceded error. The Fifth Circuit found that the amended guideline applied, vacated defendant’s sentence, and remanded for resentencing. All of the other judges in the circuit reviewed the opinion, and agreed, en banc, that U.S. v. Newson, 515 F.3d 374 (5th Cir. 2008) was abrogated by Amendment 775. U.S. v. Palacios, __ F.3d __ (5th Cir. May 21, 2014) No. 13-40153.
5th Circuit denies acceptance reduction where defendant refused to cooperate with government. (486) The PSR stated that at his interview with the probation officer, defendant would not comment on the circumstances surrounding his conviction unless given an estimate of the guideline applications. Defendant objected to the PSR, claiming, in part, that he was “ready, willing and able to cooperate in this matter at any time, but as of this date, no requests have been received by Defendant.” At sentencing, the FBI case agent testified that on three occasions he had attempted to talk to defendant, but that defendant had not cooperated or given him any information about the robbery. Given the finding in the PSR and the testimony at sentencing, the Fifth Circuit upheld the denial of an acceptance of responsibility reduction. U.S. v. Nguyen, 190 F.3d 656 (5th Cir. 1999).
5th Circuit says incriminating statement did not justify acceptance reduction because defendant also claimed it was involuntary. (486) Defendant and two other inmates escaped from prison. He remained a fugitive for four and one-half years before being apprehended and deported to the U.S. He argued that he was entitled to a § 3E1.1 reduction because he cooperated with authorities at the time of his arrest, gave incriminating statements regarding the offense, and only chose to exercise his right to trial to challenge the court’s jurisdiction and the voluntariness of his confession. The Fifth Circuit held that defendant did not demonstrate acceptance of responsibility, despite his pre-trial statement regarding his role in the offense. He did not timely withdraw from criminal activity or surrender to authorities. He refused to make a statement to the probation officer upon advice from counsel, and made no statement to the court at sentencing. His claim that his statement to officers during his airplane ride to the U.S. warranted the reduction was inconsistent with his contention that the statement was involuntary. U.S. v. Chapa-Garza, 62 F.3d 118 (5th Cir. 1995).
5th Circuit refuses to require reduction despite written statement of accountability. (486) Defendant argued that the district court’s finding that he had not accepted responsibility was clearly erroneous because he furnished a written statement of accountability. The 5th Circuit found no error. The probation officer recommended against the credit because defendant did not make a statement relative to his participation in the offense. U.S. v. Maseratti, 1 F.3d 330 (5th Cir. 1993).
5th Circuit affirms denial of acceptance of responsibility reduction to defendant who made no attempt to make restitution. (486) Defendant fraudulently obtained insurance proceeds. The 5th Circuit affirmed that defendant was not entitled to a reduction for acceptance of responsibility. Defendant made no effort to repay the insurance companies, and instead transferred funds that would have been available to repay them into an account in someone else’s name. Defendant gave no assistance to authorities in the recovery of the money. U.S. v. Lghodaro, 967 F.2d 1028 (5th Cir. 1992).
5th Circuit rejects reduction where defendant only acknowledged what was already known to government. (486) The 5th Circuit found that there was sufficient support in the record for the district court’s denial of a reduction for acceptance of responsibility. In addition to the false statements defendant made to IRS agents, the presentence report showed a continued failure by defendant to disclose the source of his cash deposits, attempts to excuse his acts based on tragic family difficulties, an attempt to cover up the fact that certain pipe was stolen, his continuation of a lifestyle beyond his financial means, and less than full cooperation in supplying financial information to the probation officer. Defendant was willing to acknowledge only what was known to the government through its own investigation and did not provide any further information. U.S. v. Brigman, 953 F.2d 906 (5th Cir. 1992).
5th Circuit affirms denial of acceptance of responsibility reduction to defendant who stood trial. (484) Defendant contended that he was entitled to a reduction for acceptance of responsibility because he abandoned his fraudulent scheme voluntarily and the sentencing court refused the reduction only because he insisted on going to trial. The 5th Circuit upheld the denial of the reduction. The district court concluded that defendant had not abandoned his scheme, and that he was untruthful with authorities. Defendant’s decision to stand trial was only one of several factors mentioned in the presentence report. U.S. v. Hooten, 933 F.2d 293 (5th Cir. 1991).
5th Circuit rejects acceptance of responsibility reduction for defendant who claimed entrapment. (484) Defendant claimed he was entitled to a reduction for acceptance of responsibility because the evidence presented at trial demonstrated his sincere remorse for his drug offense. He conceded responsibility for his acts at his rearraignment and at his sentencing, consented to a search of his residence at the time of his arrest, and admitted to the federal agent that he intended to use the money seized from his residence to purchase marijuana. The 5th Circuit upheld the district court’s finding. The presentence report indicated that during the presentence interview, defendant claimed that he had been entrapped into committing the drug offense by a persistent confidential informant and that the money found at the time of his arrest had been borrowed from his father and brother to establish a used car business. Although defendant’s attorney claimed that defendant, for whom English was a second language, may not have known the meaning of the word entrapped, the district court acted within its discretion in rejecting this explanation. U.S. v. Villarreal, 920 F.2d 1218 (5th Cir. 1991).
5th Circuit rules acceptance of responsibility provision does not violate right to jury trial. (484) The fact that guideline § 3E1.1 provides for reduced sentences for those defendants who “clearly demonstrate a recognition and affirmative acceptance of personal responsibility” does not violate the 6th Amendment right to a jury trial even though its purpose is to encourage guilty pleas. It is not unconstitutional for the government to bargain for a guilty plea in exchange for a lower sentence. Furthermore, the guideline reduction is not automatic; a defendant must establish his sincere contrition. U.S. v. White, 869 F.2d 822 (5th Cir. 1989).
5th Circuit finds no acceptance of responsibility by defendant who went to trial. (484) Defendant contended that he was improperly denied a reduction for acceptance of responsibility because he refused to plead guilty and went to trial. The 5th Circuit found that this was at least partially true, but there was no error by the district court. Defendant continued to maintain his innocence through the trial and up to the moment of sentencing. “Refusal to admit factual guilt . . . is inconsistent with acceptance of responsibility when such refusal is not based in a legal or technical defense.” The district court’s determination that defendant’s eleventh hour change of heart did not demonstrate acceptance of responsibility was not “without foundation.” U.S. v. Garcia, 917 F.2d 1370 (5th Cir. 1990).
5th Circuit finds no acceptance of responsibility where defendant refused to cooperate. (486) Defendant refused to provide information about the smuggling operation and its participants. The district court refused to grant a two level reduction for acceptance of responsibility because of his unwillingness to cooperate, and the 5th Circuit affirmed the district court’s ruling. U.S. v. Fabregat, 902 F.2d 331 (5th Cir. 1990).
5th Circuit reaffirms that denial of acceptance of responsibility adjustment does not penalize right to trial. (484) Relying on U.S. v. White, 869 F.2d 822 (5th Cir. 1989), the 5th Circuit reaffirmed that although a defendant who denies her guilt at trial may have difficulty persuading a sentencing judge that she has made a timely acceptance of responsibility, there is no violation of the 6th Amendment. “Denial of the credit is not a penalty for standing trial although not infrequently it may factor into a forfeiture of an element of legislative grace.” U.S. v. Stephenson, 887 F.2d 57 (5th Cir. 1989), abrogation on other grounds recognized by U.S. v. Johnon, 961 F.2d 1188 (5th Cir. 1992).
5th Circuit holds failure to identify higher ups was proper ground for denial of acceptance of responsibility adjustment. (486) The 5th Circuit held that the district court properly denied an acceptance of responsibility adjustment for a drug smuggler who refused to name those who had hired him to smuggle marijuana or to identify significant facts relating to the operation. The denial was warranted even though the defendant claimed to have accepted responsibility by pleading guilty and cooperating with the authorities. A mere plea of guilty does not automatically entitle a defendant to the benefit. U.S. v. Tellez, 882 F.2d 141 (5th Cir. 1989).
5th Circuit rules defendant’s failure to plead guilty may be considered in determining “acceptance of responsibility.” (484) Quoting U.S. v. White, 869 F.2d 822, 826 (5th Cir. 1989), the Fifth Circuit repeated that “[a] defendant who puts the government to its proof by challenging factual guilt may find it difficult, after conviction, to persuade the district court that he is entitled to this reduction.” The court ruled that any argument that guideline § 3E1.1 places an unconstitutional restriction on the right to a jury trial was foreclosed by White. U.S. v. Gordon, 876 F.2d 1121 (5th Cir. 1989).
5th Circuit holds defendant who refused to elaborate on circumstances surrounding the offense was not entitled to acceptance of responsibility adjustment. (486) The 5th Circuit held it was proper for the sentencing court to deny an acceptance of responsibility adjustment to a heroin dealer who: (1) pled guilty only when confronted with the government’s overwhelming evidence of quilt on 5 counts; (2) failed to surrender himself; (3) failed to elaborate on the circumstances surrounding the offense to the probation officer; and (4) refused to allocute at sentencing or otherwise express remorse or contrition. U.S. v. Nevarez-Arreola, 885 F.2d 243 (5th Cir. 1989).
6th Circuit denies acceptance credit for refusing to provide information about offense of conviction. (486) The district court denied a reduction for acceptance of responsibility because defendant refused, on the advice of counsel, to discuss his role in the offense with his probation officer. The 6th Circuit affirmed. Although a defendant may remain silent about relevant conduct without affecting his ability to obtain the reduction, a defendant may not refuse to provide information about the offense of conviction. The mere fact that defendant timely entered a guilty plea did not entitle him to the reduction. U.S. v. Meacham, 27 F.3d 214 (6th Cir. 1994).
6th Circuit upholds acceptance of responsibility provisions against 5th and 6th Amendment challenges. (484) Defendant contended that guideline § 3E1.1 had an unconstitutional chilling effect on her 5th Amendment right against self-incrimination and her 6th Amendment right to a jury trial by forcing her to plead guilty in order to receive the reduction in offense level. The 6th Circuit rejected these arguments, noting that § 3E1.1 authorizes adjustments for those who go to trial, and there is no guarantee that one who pleads guilty will receive the reduction. Although § 3E1.1 might affect how criminal defendants choose to exercise their constitutional rights, “not every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right, is invalid.” U.S. v. Cordell, 924 F.2d 614 (6th Cir. 1991).
6th Circuit upholds finding that defendant who maintained innocence did not accept responsibility. (484) Upon conviction, the defendant expressed regret for the scheme, but never admitted any fraudulent intent. Defendant continued to maintain his innocence and claimed that he failed to report the scheme as carried out by his codefendant because it had “gone too far.” The 6th Circuit upheld the district court’s finding that defendant had not accepted responsibility. U.S. v. Sloman, 909 F.2d 176 (6th Cir. 1990).
6th Circuit holds that “entrapment defense” does not preclude reduction for acceptance of responsibility. (484) At his trial for mailing child pornography defendant presented an entrapment defense. At sentencing, the district court reduced defendant’s offense level by two for acceptance of responsibility. The government appealed, claiming that an entrapment defense is inconsistent with the notion of acceptance of responsibility. The 6th Circuit disagreed, holding a defendant raising an entrapment defense should be treated the same as a defendant pleading not guilty. Defendant was properly given a reduction for cooperating with agents during a search of his house. U.S. v. Fleener, 900 F.2d 914 (6th Cir. 1990).
6th Circuit upholds denial of reduction for acceptance of responsibility where defendant refused to provide financial information. (486) At the sentencing hearing the District Court refused to give defendant a 2-point reduction for acceptance of responsibility because of his refusal to reveal his sources of cocaine and his refusal to provide financial information to the court so that a fine could be imposed. The 6th Circuit affirmed, holding that the court’s refusal was not “without foundation.” The court commented however, that it was “uncertain” whether the refusal to reveal sources was an appropriate consideration in determining whether to award a reduction for acceptance of responsibility. That factor may have been more appropriately considered in § 5K1.1, which covers “substantial assistance” to the government, since acceptance of responsibility is directed to defendant’s affirmative recognition of responsibility for his own conduct. U.S. v. Cross, 900 F.2d 66 (6th Cir. 1990).
6th Circuit holds acceptance of responsibility provision does not unconstitutionally interfere with appeal process. (484) Defendant contended the acceptance of responsibility provision is unconstitutional because a person who is going to appeal his conviction cannot confess his guilt. The 6th Circuit rejected this argument, commenting that refusal to accept responsibility does not result in a sentence enhancement. Thus, the defendant’s right to appeal is not impeded. The acceptance of responsibility plea is in the same category as consideration shown co-operating witnesses. U.S. v. Monsour, 893 F.2d 126 (6th Cir. 1990).
6th Circuit finds no double jeopardy violation from use of information both for acceptance of responsibility and to sentence at high end of guidelines. (484) Defendant argued that the district court violated the double jeopardy clause by considering defendant’s statements to the probation department during two phases of sentencing. The information was used to grant a reduction in base offense level for acceptance of responsibility and to impose a sentence at the high end of the guideline range. The 6th Circuit affirmed the sentence, holding that the double jeopardy clause was not implicated because defendant was only tried once for his crimes. U.S. v. Ford, 889 F.2d 1570 (6th Cir. 1989).
7th Circuit denies reduction for failure to demonstrate moral acceptance of responsibility. (486) Defendant stipulated that he lied to INS agents at least twice during their investigation, refused to make a statement for the PSR concerning his version of the offense, and gave untruthful or incomplete information to the probation officer writing the PSR. The district court denied defendant a § 3E1.1 reduction on the grounds that he had not demonstrated a moral acceptance of responsibility and had not cooperated with the probation officer’s investigation. The Seventh Circuit upheld the denial of the § 3E1.1 acceptance reduction. The court did not deny the reduction because defendant went to trial, but because defendant failed to demonstrate a moral acceptance of responsibility. It was appropriate for the court to weigh defendant’s plea for clemency and his statement nominally accepting culpability along with his other statements and his demeanor in deciding whether he had accepted responsibility. The court also permissibly considered defendant’s lack of cooperation with the probation department. U.S. v. Herrera-Ordones, 190 F.3d 504 (7th Cir. 1999).
7th Circuit denies third-level reduction where defendant denied co-conspirators’ involvement. (486) Under § 3E1.1(b)(1), a defendant can be given a third level reduction for acceptance of responsibility if he timely provides complete information to the government concerning his own involvement in the offense. Defendant argued that his statement to the FBI the day after his arrest concerning his own involvement in a drug conspiracy entitled him to the additional reduction. The 7th Circuit disagreed, since defendant later retracted portions of his statement concerning the involvement of his co-conspirators. In the context of a conspiracy, a defendant’s denial of his co-conspirators’ involvement could directly affect the seriousness and scope of his own offense and minimize his culpability. Even if defendant’s main motivation was to protect his co-conspirators, the result was still a less than a complete account of his own involvement in the conspiracy. U.S. v. Francis, 39 F.3d 803 (7th Cir. 1994).
7th Circuit denies reduction where defendant did not accept responsibility for one of five counts. (486) Defendant asserted he was entitled to a reduction for acceptance of responsibility because he cooperated with FBI agents and his probation officer. The 7th Circuit held that defendant was not entitled to the reduction. Although he admitted possessing stolen vehicles, he “stoutly denied” his guilt of bank fraud charges. He then proceeded to trial on all charges, and continued to deny his guilt on the bank fraud charge in his interview with the probation officer and at sentencing. U.S. v. Evans, 27 F.3d 1219 (7th Cir. 1994).
7th Circuit rejects reduction where defendant refused to be interviewed in depth. (486) The 7th Circuit rejected defendant’s claim that he cooperated with law enforcement officials and therefore deserved a reduction for acceptance of responsibility. There was no indication that defendant admitted any involvement in the offenses charged or that he volunteered in any way to assist authorities in recovering the missing funds. In fact, he refused to be interviewed in depth about the scheme. The court also rejected defendant’s claim that his nolo contendere plea saved the government the time and expense of a long trial. Although section 3E1.1 encourages judicial and law enforcement economy, that is not its only purpose. U.S. v. Boyle, 10 F.3d 485 (7th Cir. 1993).
7th Circuit denies reduction to defendant who did not withdraw from criminal activities. (486) The 7th Circuit affirmed the denial of a reduction for acceptance of responsibility, in light of evidence that defendant did not voluntarily withdraw from his criminal activities in a timely fashion, did not provide voluntary assistance to officials, and stated that he felt “pressured.” Moreover, defendant received an enhancement for obstruction of justice because of his attempt to “mold” a witness’s testimony to conform with his own grand jury testimony. U.S. v. Curry, 977 F.2d 1042 (7th Cir. 1992).
7th Circuit rules that entrapment defense did not entitle defendant to acceptance of responsibility reduction. (486) Defendant argued that the district court should not have denied him a reduction for acceptance of responsibility because he presented an entrapment defense. According to defendant, the presentation of the entrapment defense could be viewed as his acknowledgement of his participation in illegal conduct. The 7th Circuit affirmed the denial of the reduction. The trial judge stated that he appreciated defendant’s contentions regarding his acknowledgement on the stand of his participation in illegal conduct, but believed that defendant’s position was also “one of total denial of his obligation in this matter.” U.S. v. Haddad, 976 F.2d 1088 (7th Cir. 1992).
7th Circuit says court could properly reject probation officers’ acceptance of responsibility recommendation. (486) The 7th Circuit rejected defendant’s claim that the district court should have deferred to the probation officer’s recommendation that he receive a reduction for acceptance of responsibility. A probation officer’s recommendation for such a reduction is not entitled to special deference. Defendant failed to accept responsibility for all of his criminal acts. Although he admitted committing the arson, he did not accept responsibility for his mail fraud. Even if the average person does not appreciate the statutory definition of mail fraud, defendant was convicted of having engaged in this conduct and therefore was required to accept responsibility for it in order to receive the reduction under section 3E1.1. Finally, the district judge found that defendant’s purported “acceptance” came too late in the proceedings, and that his characterization of the fire he set as a “needless mistake that happened to him” was hardly an affirmative acceptance. Defendant’s attempt to accept responsibility was in reality an effort to decrease his sentence. U.S. v. Guadagno, 970 F.2d 214 (7th Cir. 1992).
7th Circuit denies acceptance of responsibility reduction where defendant refused to speak with probation officer. (486) Defendant pled guilty to possession of a prohibited object by a federal prison inmate. The 7th Circuit affirmed that it was proper to refuse to grant a reduction for acceptance of responsibility in part because defendant refused to be interviewed by the probation officer. Application note 3 to section 3E1.1 states that failure to cooperate with the court’s efforts to gather information is inconsistent with acceptance of responsibility. The opinion in U.S. v. Enquist, 745 F.Supp. 541 (N.D. Ind. 1990) is not to the contrary. Although the defendant in Enquist was granted a reduction despite his failure to cooperate with his probation officer, this was because other factors convinced the court that the defendant had accepted responsibility. Here, defendant’s only explanation for his refusal to cooperate was a generalized mistrust of persons in authority and a fear that other prisoners would retaliate against him if he provided damaging information about them. U.S. v. Beal, 960 F.2d 629 (7th Cir. 1992).
7th Circuit rejects acceptance of responsibility reduction to defendant who “waffled” in his cooperation with authorities. (486) The 7th Circuit found no clear error in district court’s denial of a reduction for acceptance of responsibility to a defendant who “waffled” in his dealings with the police. The district court found that defendant cooperated and then dissembled; he made statements about his drug activities and then recanted those statements. U.S. v. McGuire, 957 F.2d 310 (7th Cir. 1992).
7th Circuit denies acceptance of responsibility reduction despite defendant’s cooperation with government. (486) The district court denied defendant a reduction for acceptance of responsibility, even though he provided extensive information concerning his marijuana distribution network, because he was reluctant to provide testimony in connection with the information he provided. The 7th Circuit affirmed the district court’s decision, although it found it to be a “close question.” At the sentencing hearing, the district judge stated that it had “grave doubts” about the veracity of anything defendant told the court, and that defendant was motivated to say anything to advance his cause, including making illusory promises in return for favorable sentencing recommendations. Since the district judge was in the best position to determine this issue, the appellate court refused to find an abuse of discretion. U.S. v. Atterson, 926 F.2d 649 (7th Cir. 1991).
7th Circuit refuses acceptance of responsibility reduction to defendant who refused to cooperate in presentence investigation. (486) Although at trial and at sentencing defendant expressed remorse, he “fought tooth and nail to avoid conviction, and he refused to cooperate with the probation office’s presentence investigation.” Therefore, the district judge did not abuse his discretion in determining that defendant’s last minute apology was “a deceitful little show.” U.S. v. Fonner, 920 F.2d 1330 (7th Cir. 1990).
7th Circuit remands because unclear whether judge confused acceptance of responsibility with government assistance. (486) After defendant refused to tell the district court anything about his sources or accomplices, the judge declined to grant defendant a reduction for acceptance of responsibility. The 7th Circuit remanded because the record was unclear whether the judge confused the standards for acceptance of responsibility with those of substantial assistance to the government. Although the judge suggested that the court needed information concerning defendant’s sources because defendant was not being candid about his own acts, the judge’s statements could also be interpreted as incorrectly stating that a defendant must cooperate with the government in order to receive a reduction for acceptance of responsibility. U.S. v. Escobar-Mejia, 915 F.2d 1152 (7th Cir. 1990).
7th Circuit upholds denial of acceptance of responsibility for defendant who lied to probation officer. (486) Under a plea agreement, defendant agreed to pay restitution in connection with his theft of government property, and the government agreed to recommend a two-level reduction in defendant’s base offense level for acceptance of responsibility. However, defendant intentionally withheld information from his probation officer concerning his expected receipt of certain pension funds. The 7th Circuit held that the evidence supported the district court’s finding that defendant had impeded proceedings, and therefore the court was justified in determining that defendant had not accepted responsibility. U.S. v. Larsen, 909 F.2d 1047 (7th Cir. 1990).
7th Circuit rules that statements made to probation officer may be used to deny acceptance of responsibility adjustment even if counsel is not present. (484) The 7th Circuit held that neither the 5th Amendment privilege against compelled self incrimination nor the 6th Amendment right to counsel precluded the use during sentencing of statements made to a probation officer by a convicted defendant in the absence of his attorney. The trial judge’s use of the statements to deny an acceptance of responsibility adjustment was proper. In this case, the evidence supported a finding that the defendant was not truthful with the probation officer who was preparing the presentence report, thus warranting the denial of the adjustment. The Sixth Amendment is not applicable because the preparation of a presentence report is not a “critical stage” of the proceedings. U.S. v. Jackson, 886 F.2d 838 (7th Cir. 1989).
8th Circuit upholds reliance on FBI reports that defendant recanted previous admission. (486) At sentencing, the government submitted FBI reports from defendant’s interviews on August 14, 2008 and January 6, 2010. These reports recounted that, in an August 14, 2008 interview, defendant admitted his criminal conduct. However, in a January 6, 2010 interview, defendant recanted those very admissions, denying his criminal conduct. The Eighth Circuit held that the district court properly considered the FBI reports in denying defendant an acceptance of responsibility reduction. The rules of evidence do not apply in the context of sentencing hearings, and courts may rely on hearsay or other typically inadmissible evidence if that evidence bears sufficient indicia of reliability. Defendant did not object to the factual findings contained in the PSR, including that defendant had recanted his previous statements to law enforcement. U.S. v. Shade, 661 F.3d 1159 (8th Cir. 2011).
8th Circuit says government’s opposition to acceptance credit was not plain error breach of plea agreement. (486) Defendant argued for the first time on appeal that the government breached his plea agreement by failing to recommend that he receive a reduction for acceptance of responsibility. The government argued that defendant failed to comply with the plea agreement when he sent a letter to the probation officer that made several misleading or untrue statements. Defendant claimed in the letter that he believed his 1981 pardon resulted in the reinstatement of his gun rights. However, he continued to engage in unlawful conduct even after he was advised by ATF agents that he was a prohibited person and could not be involved in firearms sales. Defendant’s letter also implied that his only misdeed was “touching” his co-defendant’s guns, when he actually negotiated sales for his co-defendant’s business. The Eighth Circuit held that the government’s recommendation against the acceptance reduction did not amount to a plain error breach of the plea agreement. The plea agreement did not preclude the government from making a good faith argument that defendant did not satisfy one or more of the conditions entitling him to the recommendation. U.S. v. Smith, 590 F.3d 570 (8th Cir. 2009).
8th Circuit denies acceptance reduction to defendant who disputed drug quantity. (486) Defendant contended that he only went to trial because he disputed the amount of methamphetamine the government attributed to him. He pointed to his statement to police as proof that he admitted his conduct prior to the trial. However, just because defendant cooperated did not mean he was entitled to an acceptance of responsibility adjustment. By disputing the amount of methamphetamine he was responsible for, he put the government to its proof and challenged his factual guilt. Therefore, the District Court was within its discretion to deny defendant an adjustment for acceptance of responsibility. U.S. v. Johnston, 353 F.3d 617 (8th Cir. 2003).
8th Circuit denies reduction where defendant did not cooperate and did not withdrawn from criminal conduct. (486) Defendant argued that he was entitled to an acceptance of responsibility reduction under § 3E1.1 because he admitted the substantive offense. The Eighth Circuit upheld the denial of the reduction because defendant did not cooperate with the government investigation and did not voluntarily withdraw from criminal conduct. U.S. v. Hawkins, 78 F.3d 348 (8th Cir. 1996).
8th Circuit denies reduction to defendant who refused to discuss case with probation officer. (486) The district court denied defendant an acceptance of responsibility reduction, finding this was not one of the rare situations where the reduction is appropriate for a defendant who has gone to trial. Defendant refused to discuss his criminal conduct with his probation officer. The 8th Circuit found no error in the denial of the reduction. U.S. v. Karam, 38 F.3d 467 (8th Cir. 1994).
8th Circuit denies acceptance of responsibility reduction where primary motivation for cooperation was to obtain sentence reduction. (486) The 8th Circuit affirmed the district court’s denial of a reduction for acceptance of responsibility, even though defendant voluntarily admitted his involvement in the offenses to the government and offered to cooperate in further investigations. Defendant’s primary motive in cooperating with the government was to obtain a reduction in his sentence, and was not based on a sense of remorse over his past conduct. Defendant also put the government to its burden of proof by pleading not guilty to all counts. U.S. v. Davila, 964 F.2d 778 (8th Cir. 1992).
8th Circuit denies credit for acceptance of responsibility where defendant refused to discuss her involvement. (486) The 8th Circuit upheld the district court’s denial of a reduction for acceptance of responsibility, where the district court relied on the presentence report, which indicated that defendant withheld a credit bureau report from the probation officer, refused to discuss her involvement in the offense, and stated that she signed the plea agreement under duress. U.S. v. Miller, 951 F.2d 164 (8th Cir. 1991).
8th Circuit affirms denial of acceptance of responsibility reduction despite defendant’s assistance. (486) Defendant contended that he should have received a reduction for acceptance of responsibility because he voluntarily terminated his criminal activity, provided truthful admissions, assisted authorities in the recovery of the fruits and instrumentalities of the offense, and wore a body wire to a meeting with his drug source. The 8th Circuit found that the denial of the reduction was not clearly erroneous. Defendant’s acceptance of responsibility was “equivocal.” At one point in the sentencing hearing defendant acknowledged his acceptance of responsibility, but later in the hearing said that he was not responsible because his drug source made him commit the offense. U.S. v. Laird, 948 F.2d 444 (8th Cir. 1991).
8th Circuit finds no acceptance of responsibility by defendant who failed to provide information to probation officer. (486) The 8th Circuit found that the record supported the district court’s denial of a reduction for acceptance of responsibility. The record indicated that defendant failed to provide information to his probation officer. Therefore, it also rejected defendant’s claim that he was denied the reduction because he asserted his constitutional right to a trial. U.S. v. Payne, 923 F.2d 595 (8th Cir. 1991).
8th Circuit holds that defendant was not penalized for attempting to withdraw his guilty plea. (484) At the time of sentencing, the defendant attempted to withdraw his guilty plea and repeatedly asserted that he did not use a gun during the robbery. The district court refused to allow him to withdraw his plea, and refused to grant him a two level reduction for acceptance of responsibility. On appeal, the defendant argued that the district court unfairly denied him credit for acceptance of responsibility because he attempted to withdraw his guilty plea. The majority rejected the argument, holding that his “repeated refusals to acknowledge that he used a gun during the course of his crimes demonstrated his refusal to personally accept responsibility.” Judge Bright expressed concern that the defendant had been punished for attempting to exercise his constitutional right to trial by withdrawing his guilty plea. However, since that issue had not been directly raised, he concurred in the result. U.S. v. Carroll, 908 F.2d 340 (8th Cir. 1990).
8th Circuit finds acceptance of responsibility provision is not unconstitutionally vague. (484) On appeal, defendant contended that acceptance of responsibility provision was unconstitutionally vague. The 8th Circuit rejected this argument, holding that “there is no constitutional right to sentencing guidelines or more generally, to a less discretionary application of sentences than that permitted prior to the guidelines.” The limitations the guidelines place on a judge’s discretion cannot violate a defendant’s right to due process by being “vague.” The defendant’s challenge was “uniquely absurd” because acceptance of responsibility is an attempt to individualize sentencing. The guidelines and commentary have enough “flesh” to prevent a successful attack on vagueness grounds. U.S. v. Wivell, 893 F.2d 156 (8th Cir. 1990).
8th Circuit holds denial of reduction for acceptance of responsibility was proper. (486) Giving great deference to the sentencing court on this issue, the 8th Circuit held that the trial court had sufficient grounds to deny the defendant a two point reduction in his base offense level for acceptance of responsibility. The defendant did not make voluntary and truthful admissions to the police after his arrest. His plea of guilty, by itself, was not enough to entitle him to such a reduction. He also failed to cooperate with the probation officer who interviewed him. Providing the name of the man who had arranged for him to transport drugs was not enough, given that the defendant did not voluntarily terminate his illegal conduct or surrender himself to the authorities. On the whole, the trial court did not abuse its discretion in deciding this issue. U.S. v. Thompson, 876 F.2d 1381 (8th Cir. 1989).
8th Circuit holds that defendant was not penalized for exercising his constitutional right to jury trial. (484) The 8th Circuit noted that the guidelines do not foreclose an adjustment for acceptance of responsibility even for those who do not plead guilty. Here the defendant did not demonstrate a recognition of personal responsibility. The trial court did not err in declining to give the defendant credit for acceptance of responsibility. U.S. v. Young, 875 F.2d 1357 (8th Cir. 1989).
8th Circuit rules decrease in offense level for acceptance of responsibility does not depend on whether defendant pled guilty. (484) Defendant argued that § 3E1.1 which provides for a two point reduction in the base offense level for a acceptance of responsibility infringed upon his right to a jury trial. The 8th Circuit disagreed. By its clear terms, the provision applies regardless of whether the defendant went to trial or pled guilty. The fact that a defendant who goes to trial and denies his guilt may have a more difficult time in persuading a judge of his sincerity is regrettable, but not unlawful. U.S. v. Young, 875 F.2d 1357 (8th Cir. 1989).
9th Circuit says post-arrest cooperation does not support acceptance for defendant who went to trial. (486) After his arrest for drug trafficking, defendant admitted some of his illegal conduct and offered to cooperate with the authorities. Over the next two weeks, defendant gave the officers information about his co-conspirators and helped them in intercepting several shipments of drugs, but he was not entirely truthful with investigators. When the government declined to give defendant complete immunity, defendant ceased cooperating. He was later convicted at a trial where he contested every count against him and testified falsely. The district court declined to give defendant an acceptance of responsibility adjustment, finding defendant’s attempts to cooperate “insincere.” The Ninth Circuit found that defendant’s post-arrest, pretrial efforts to cooperate did not entitle him to an acceptance adjustment. U.S. v. Wilson, 392 F.3d 1055 (9th Cir. 2004).
9th Circuit says admitting firearm possession did not admit possession of machinegun. (486) Defendant was charged with possessing a machine gun. At trial, he conceded that he owned a semiautomatic weapon, but he argued that the gun was not a machine gun. Accordingly, the government put on evidence to show that the firearm was fully automatic. The Ninth Circuit held that defendant’s admission that he owned a firearm did not entitle him to a reduction for acceptance of responsibility on the charge of possessing a machinegun. U.S. v. Daychild, 357 F.3d 1082 (9th Cir. 2004).
9th Circuit denies acceptance credit where defendant made false statements to probation officer about his citizenship. (486) Defendant was convicted of mail fraud, possession of stolen mail, and money laundering after he used other persons’ names to obtain and use credit card accounts. At sentencing, the district court denied credit for acceptance of responsibility, based on defendant’s false statement to the probation officer about his citizenship. The court viewed the false statement as a continuation of the deceit used by defendant in the offense, and inconsistent with sincere acceptance of responsibility. In affirming, the Ninth Circuit gave “great deference” to the sentencing court’s determination, as required by Note 5 to § 3E1.1. However, the panel cautioned that its holding did not require denial of the acceptance reduction in other fraud cases where the defendant makes a false statement to the probation officer. U.S. v. Bazuaye, 240 F.3d 861 (9th Cir. 2001).
9th Circuit denies credit where defendant pled to only one count and denied involvement. (486) The district court denied credit for acceptance of responsibility because defendant (1) pled guilty only to only one count and proceeded to trial on the other two, (2) repudiated his post-arrest statement and denied the participation of his co-conspirators in his statement to the probation officer, and (3) claimed that his confession was fabricated to the extent it described the roles of the other participants. The Ninth Circuit upheld the denial of the reduction, noting that defendant disputed his involvement in the conspiracy, and this was inconsistent with acceptance of responsibility. U.S. v. Avila, 95 F.3d 887 (9th Cir. 1996).
9th Circuit says lying to pretrial services officer was obstruction of justice. (486) Defendant told the pretrial services officer in his bail interview that he had no prior convictions, despite a long criminal record. On the advice of counsel he declined to discuss his criminal history with the probation officer. The co-defendant lied to the probation officer about ever having used an alias and also about when she first entered the United States. The district court increased both offense levels for obstruction of justice and refused to depart downward for acceptance of responsibility. On appeal, the Ninth Circuit affirmed, holding that providing materially false information to a pretrial services officer is obstruction of justice regardless of whether the falsehood actually obstructed justice. The fact that both defendants obstructed justice justified the court in denying credit for acceptance of responsibility. U.S. v. Magana-Guerrero, 80 F.3d 398 (9th Cir. 1996).
9th Circuit says presentence interview is not a critical stage of the proceedings so counsel was not ineffective. (486) Defendant argued that his lawyer’s failure to schedule a presentence interview constituted a denial of counsel at a critical stage of the adversary proceedings. Counsel apparently told his client not to talk to the probation officer without counsel being present, and then went on vacation while the presentence report was being written. Defendant refused to be questioned by the probation officer in the absence of counsel so the report was written without an interview with defendant. The Ninth Circuit held that a presentence interview is not a critical stage of the proceedings and therefore “there can be no constitutional violation, no matter how deficient counsel’s performance.” The court noted that every other circuit agrees with the Ninth Circuit that the presentence interview is not a critical stage of the adversary proceedings even though the sentencing guidelines have made the presentence report more important. U.S. v. Benlian, 63 F.3d 824 (9th Cir. 1995).
9th Circuit says court cannot consider defendant’s refusal to discuss the offense with the probation officer. (486) Relying on U.S. v. LaPierre, 998 F.2d 1460, 1468 (9th Cir. 1993) and U.S. v. Watt, 910 F.2d 587, 592 (9th Cir. 1990), the 9th Circuit reiterated that the district court may not consider the defendant’s refusal to discuss the offense with the probation officer as evidence weighing against acceptance of responsibility. “A defendant’s refusal to discuss the offense conduct with the probation officer may reduce the amount of evidence supporting the defendant’s claim of acceptance, but that is not the same thing as treating the refusal as a factor weighing against him.” U.S. v. Vance, 62 F.3d 1152 (9th Cir. 1995).
9th Circuit says defendant’s refusal to cooperate may not be used to deny acceptance credit. (486) Citing U.S. v. McKinney, 15 F.3d 849, 854 (9th Cir. 1994) the Ninth Circuit held that the district court improperly held defendant’s refusal to cooperate with law enforcement authorities against him, in finding that he did not accept responsibility. The court noted that if defendant had agreed to discuss the offense conduct with law enforcement authorities and perhaps revealed and agreed to testify against his supplier, he might have earned a prosecutor’s recommendation for a downward departure for “substantial assistance to authorities” U.S.S.G. §5K1.1. “That is not closely related to contrition, however.” The court noted that a “cunning, but not contrite defendant may buy his way out of trouble by providing evidence against someone else, and an entirely contrite defendant may out of fear, ignorance of information useful to the prosecutors, or other reason, fail to provide assistance.” 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. (486) 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 finds remorse insincere where statements were made after “coaching” from defense counsel. (486) The district court relied on the probation officer’s finding that defendant’s professions of remorse were not sincere because they were made only after “coaching and direction” from counsel. On appeal, defendant claimed that the denial of the reduction was illegal because it resulted ultimately from his exercise of his rights to have counsel present at his presentence interview. The 9th Circuit rejected the argument, ruling that the court’s reliance on the probation officer’s observation “does not indicate the court felt that [defendant] should be punished for having counsel present to advise him, but simply that [defendant’s] manner of responding did not reflect his own, genuine remorse. U.S. v. Hall, 952 F.2d 1170 (9th Cir. 1991).
9th Circuit denies credit for acceptance of responsibility despite a strong dissent. (486) The defendant exercised his right to remain silent at trial and refused to discuss his case with the probation officer. He did not make a statement at his sentencing hearing. Accordingly, Judges Rymer and Alarcon upheld the district court’s denial of credit for acceptance of responsibility. Judge Kozinski dissented, pointing out that the acceptance of responsibility provision puts a defendant “to a brutal choice between obtaining a shorter sentence and giving up his right to appeal, and preserving intact his right to appeal but giving up the opportunity to plead for a more lenient sentence.” He suggested that to avoid constitutional questions raised by the provision, the could should require a new sentencing hearing after affirming the defendant’s conviction on appeal. At the new hearing the defendant would have an opportunity to qualify for the two level reduction for acceptance of responsibility. U.S. v. Aichele, 941 F.2d 761 (9th Cir. 1991).
9th Circuit upholds denial of credit for acceptance of responsibility where defendant claimed entrapment. (484) “[O]n almost every key incident concerning both his predisposition to engage in drug trafficking and the government’s alleged inducement in getting him to cooperate, the appellant provided a story very different from the one the government offered — which ultimately was the story the jury believed.” Accordingly the 9th Circuit found the record supported the judge’s conclusion that defendant failed to satisfy the requirements of § 3E1.1. The court emphasized however, that it was not holding that the defense of entrapment and a reduction for acceptance of responsibility “are necessarily and in all cases incompatible.” U.S. v. Molina, 934 F.2d 1440 (9th Cir. 1991).
9th Circuit upholds denial of acceptance of responsibility where defendant denied criminal intent. (484) Application Note 2 to guideline § 3E1.1 says that a defendant may manifest sincere contrition even if he exercises his constitutional right to a trial, for example, where he goes to trial to assert issues that do not relate to factual guilt. Here however, the court found that despite the defendant’s attempt to characterize the issue as a legal question, “the central issue was over the issue of criminal intent — a factual matter.” Accordingly, the court’s finding that defendant did not accept responsibility was not clearly erroneous. U.S. v. Barron-Rivera, 922 F.2d 549 (9th Cir. 1991).
9th Circuit holds that probation officers must permit counsel to be present at presentence interview. (486) In Baumann v. U.S., 692 F.2d 565 (9th Cir. 1982), the 9th Circuit held that the presentence interview did not constitute a “critical stage” at which counsel was required by the 6th Amendment. Nevertheless, in this case the 9th Circuit exercised its “supervisory power” to hold that probation officers must permit defendants to have their attorneys present at the presentence interview. The court noted that the presentence interview plays a crucial role in determining the probation officer’s recommended sentence. In this case the district court declined to give the defendant credit for acceptance of responsibility because he refused to talk with the probation officer in the absence of counsel. The court said that its rule would serve the guidelines policy of evenhandedness in sentencing. Judge Leavy concurred that the sentence should be vacated because the district court simply deferred to the presentence report. He dissented from the holding requiring counsel’s presence at presentence interviews, however, expressing fear that this may turn the interview into an adversary proceeding. U.S. v. Herrera-Figueroa, 918 F.2d 1430 (9th Cir. 1990).
9th Circuit rejects automatic credit for acceptance of responsibility where defendant exercises 5th Amendment right not to testify at trial. (484) The district court held that those whose exercise their 5th Amendment right to remain silent at trial “must automatically receive credit for accepting responsibility in order to preserve the guidelines’ constitutionality.” The 9th Circuit disagreed, noting that the defendant’s exercise of his right to remain silent at trial did not disable him from accepting responsibility for his actions afterwards. “Yet even after the jury found him guilty [defendant] refused to discuss his case with his probation officer and insisted that he did not intimidate or harass anyone because of race.” He declined to make any statement at his sentencing hearing. The 9th Circuit found the district court’s ruling clearly erroneous and reversed the sentence. U.S. v. Skillman, 913 F.2d 1477 (9th Cir. 1990) amended, 922 F.2d 1370 (9th Cir. 1991).
9th Circuit prohibits using “any constitutionally protected conduct” against defendant in determining acceptance of responsibility. (484) In denying credit for acceptance of responsibility, the district court stated that the defendant’s failure to assist authorities in the recovery of the fruits and instrumentalities of the offense “counts against him.” The 9th Circuit vacated the sentence, holding that “in determining a defendant’s acceptance of responsibility, a sentencing court cannot consider against a defendant any constitutionally protected conduct, whether it occurs before or after an entry of a plea.” The court stated that “assisting in the recovery of the fruits and instrumentalities of a crime involved a waiver of Fifth Amendment rights.” Accordingly the district court improperly considered this fact against the defendant. Moreover the court held that the district court was required to consider defendant’s post-plea conduct as well as his pre-plea conduct in assessing his acceptance of responsibility. U.S. v. Watt, 910 F.2d 587 (9th Cir. 1990).
9th Circuit rejects argument that acceptance of responsibility provision violates 5th and 6th Amendments. (484) Defendant argued that U.S.S.G. § 3E1.1 chilled the exercise of his 5th Amendment right against self incrimination because the only way he could receive a two point reduction for acceptance of responsibility was to retract his sworn trial testimony, contritely admit guilt, and confess perjury. He also argued that the two point reduction has effectively “been made available only to defendants who plead guilty.” Therefore he argued that defendants who choose to go to trial are penalized for exercising their 6th Amendment rights. The 9th Circuit rejected each of these arguments finding no Constitutional infirmity in the acceptance of responsibility provisions of the guidelines. U.S. v. Gonzalez, 897 F.2d 1018 (9th Cir. 1990).
10th Circuit denies acceptance of responsibility for defendant who stood trial to preserve objection to confession. (486) Defendant confessed to his crimes, but then stood trial, put the government to its proof, sought to exclude the confession, and refused to discuss his crimes after conviction with the probation office. The district court denied the adjustment for acceptance of responsibility, and the 10th Circuit affirmed. Defendant could have sought to preserve the challenge to his confession by entering a conditional guilty plea pursuant to Federal Rule of Criminal Procedure 11(a)(2). Though such pleas require the approval of the court and the government, defendant did not argue that he was rebuffed in an attempt to enter such a plea. U.S. v. March, 999 F.2d 456 (10th Cir. 1993).
10th Circuit denies reduction to defendant who denied offense during and after trial. (486) The 10th Circuit affirmed that defendant was not entitled to a reduction for acceptance of responsibility. She denied any criminal wrongdoing relating to the counts charged in the indictment at trial, and she persisted in this denial following her conviction during her presentence interview. U.S. v. Chimal, 976 F.2d 608 (10th Cir. 1992).
10th Circuit upholds acceptance of responsibility provisions against 5th and 6th Amendment challenges. (484) Defendant argued that the acceptance of responsibility provisions of the guidelines violate the 5th and 6th Amendments by requiring him to plead guilty to all of the charges against him in order to obtain the benefit of a reduction. Defendant claimed that he clearly accepted responsibility for a drug trafficking charge, but was denied the reduction because he did not accept responsibility for a firearms charge. The 10th Circuit rejected this claim. “The denial of a downward adjustment under § 3E1.1 does not constitute a penalty or an enhancement of sentence.” 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. Ross, 920 F.2d 1530 (10th Cir. 1990).
10th Circuit upholds constitutionality of acceptance of responsibility provisions. (484) Defendant contended that the acceptance of responsibility provisions of the sentencing guidelines violated his 5th Amendment privilege against self-incrimination. Following its decision in U.S. v. Rogers, 899 F.2d 917 (10th Cir. 1990), the 10th Circuit rejected this argument without discussion. The court also rejected defendant’s contention that the guidelines violate equal protection because they impose different sentences on defendants convicted of the same crime. Giving defendants who accept responsibility for their conduct lighter sentences than unrepentant defendants is rationally related to the government’s legitimate interest in rehabilitating convicted criminals. U.S. v. Mayes, 917 F.2d 457 (10th Cir. 1990).
10th Circuit holds that defendant’s refusal to talk to probation officer may be considered in denying credit for acceptance of responsibility. (486) Defendant argued that he was not given credit for acceptance of responsibility because he invoked his Fifth Amendment privilege against self-incrimination at the time of the presentence interview. The 10th Circuit rejected the argument, noting that since defendant had pleaded guilty, he no longer had a Fifth Amendment privilege as to the count of conviction. Thus, he “was not refusing to incriminate himself on counts to which he had pled not guilty; he was refusing to provide information on the count to which he had admitted his guilt.” Moreover, the district court’s denial of the reduction for acceptance of responsibility was not a “penalty”. U.S. v. Trujillo, 906 F.2d 1456 (10th Cir. 1990).
11th Circuit says post-trial cooperation did not entitle defendant to acceptance of responsibility reduction. (486) Defendant did not cooperate prior to trial, but after his conviction he agreed to give a statement to the government for use in later prosecutions of additional members of the drug trade. In exchange for this cooperation, the prosecution recommended a five-point downward departure which the district court accepted at sentencing. The Eleventh Circuit rejected defendant’s claim that he was also entitled to a two-point acceptance of responsibility reduction. Although the failure to plead guilty does not preclude an acceptance of responsibility reduction, only in rare situations will a defendant who is convicted at trial be entitled to the decrease. Even then, the determination of whether to grant the reduction should be “based primarily upon pre-trial statements and conduct.” Defendant did not cooperate with the government during its investigation and forced the government to seek a conviction by trial. In addition, defendant received a five-point departure for his post-trial cooperation. U.S. v. Matthews, 168 F.3d 1234 (11th Cir. 1999).
11th Circuit denies reduction where defendant sabotaged cooperation by telling target of investigation. (486) While he was a grand jury member, defendant disclosed grand jury secrets to the target of a grand jury investigation. Defendant argued that he accepted responsibility by admitting to federal agents shortly after his arrest that he had revealed grand jury information. The Eleventh Circuit held that defendant was not entitled to the reduction despite his immediate confession. He had also agreed to assist in the investigation of the target on the condition that he was not to inform anyone of his cooperation. However, he sabotaged the covert investigation by telling a friend to “get word” to the target that he had been asked to cooperate against the target. U.S. v. Brenson, 104 F.3d 1267 (11th Cir. 1997).
11th Circuit affirms denial of acceptance of responsibility reduction despite guilty plea and defendant’s cooperation. (486) Defendant contended that he was entitled to a reduction for acceptance of responsibility because he pled guilty and cooperated with the government’s investigation of persons believed to be stealing seized money. The 11th Circuit held that defendant did not meet his burden. A defendant’s cooperation does not automatically entitle him to a reduction for acceptance of responsibility. Even if nothing in the record indicated that defendant was less than truthful with the government or the court, the determination of acceptance of responsibility requires an analysis of both objective facts and subjective considerations of the defendant’s demeanor and sincerity. The record indicated that the district court was concerned with defendant’s demeanor and sincerity, commenting that defendant seemed to be “taking this in a rather light fashion today.” Moreover, the court properly considered defendant’s denial of important facts. U.S. v. Cruz, 946 F.2d 122 (11th Cir. 1991).
11th Circuit rules acceptance of responsibility provision does not infringe right to appeal. (484) Defendant contended that the sentencing guidelines infringed his right to appeal because he was unable to express acceptance of responsibility at the sentencing hearing while he anticipated bringing this appeal. The 11th Circuit rejected this contention, finding that guideline § 3E1.1 does not unconstitutionally prejudice or penalize defendant for exercising his right to appeal from a conviction. U.S. v. McDonald, 935 F.2d 1212 (11th Cir. 1991).
11th Circuit finds acceptance of responsibility was not denied solely because of defendant’s decision to stand trial. (484) The 11th Circuit rejected defendants’ contention that the district court improperly based its refusal to grant them a reduction for acceptance of responsibility upon their decision to stand trial. Defendants ceased their criminal activity only after being arrested. From that time onward, they maintained that they were innocent; at trial, they challenged the credibility of the government witnesses and urged the jury to find them not guilty. After being found guilty they subsequently admitted to a probation officer that they “sold drugs” but expressed no remorse for their actions. Although a court may not refuse to grant a reduction under § 3E1.1 solely because a defendant proceeds to trial, such a choice may be considered by the court as one factor among many in determining whether the defendant has actually accepted responsibility. U.S. v. Jones, 934 F.2d 1199 (11th Cir. 1991).
11th Circuit reverses denial of acceptance of responsibility reduction because defendant substantially assisted government. (486) The district court denied defendant a reduction for acceptance of responsibility because it found that defendant had failed to provide complete information to the probation officer during the presentence interview. The 11th Circuit reversed, finding that defendant’s voluntary cooperation with the authorities immediately following his arrest justified the reduction. Immediately upon his arrest, defendant assisted the police in arresting his accomplice, which led officials to apprehend six other individuals involved in drug offenses. Defendant’s assistance provided “a classic example of the kind of conduct the sentencing court should credit as indicative of an acceptance of responsibility.” U.S. v. Howard, 923 F.2d 1500 (11th Cir. 1991).
11th Circuit affirms acceptance of responsibility reduction for defendant who assisted government in investigation. (486) The government objected to the district court’s two level reduction for acceptance of responsibility. The 11th Circuit found that the determination was not without foundation, and upheld the reduction. After being confronted by police, defendant agreed to permit the police to search his car and apartment, provided them with address of a co-defendant, advised the police of the location of an apartment containing both cocaine and money, and admitted that he was in the cocaine business. The record reflected that defendant was extremely cooperative in the initial stages of the investigation and made it possible for the government to make the arrests in the case. “The government’s theory that [defendant] should not benefit from this acceptance of responsibility because he cooperated only in the hope that he would avoid arrest does not persuade us to override the considered judgment of the district court on this issue.” U.S. v. De La Rosa, 922 F.2d 675 (11th Cir. 1991).
11th Circuit upholds consideration of defendant’s decision to go to trial in denying credit for acceptance of responsibility. (484) Defendant and others were arrested in a boat containing 495 bales of marijuana. Defendant contended that he was entitled to a two point reduction in base offense level because he voluntarily cooperated with the government by telling them what he knew concerning where and when the boat was supposed to rendezvous with the marijuana. The 11th Circuit rejected his argument. The district court had found that defendant’s decision to proceed to trial was evidence of his failure to accept personal responsibility for his offense. Although a district court may not refuse to find acceptance of responsibility simply because a defendant elects to go to trial, it is a factor that “may properly be considered along with other factors in determining whether there has been an acceptance of responsibility.” U.S. v. Castillo-Valencia, 917 F.2d 494 (11th Cir. 1990).
11th Circuit reaffirms constitutionality of acceptance of responsibility provision. (484) Following its previous decision in U.S. v. Henry, 883 F.2d 1010 (11th Cir. 1989), the 11th Circuit held that the acceptance of responsibility provision of the federal sentencing guidelines does not violate either the 5th or 6th Amendment. Instead, it “merely formalizes and clarifies a tradition of leniency extended to defendants who express genuine remorse and accept responsibility for their wrongs.” U.S. v. Crawford, 906 F.2d 1531 (11th Cir. 1990).
11th Circuit holds that denial of acceptance of responsibility did not violate defendant’s 5th Amendment rights. (484) A drug defendant claimed that the trial court erred in declining to grant him a reduction for acceptance of responsibility. He claimed that the court penalized him for exercising his 5th Amendment right against self-incrimination by conditioning the reduction upon his revealing information relating to other criminal conduct. The 11th Circuit disagreed, finding that the district court had relied solely upon his guilty plea as the basis for acceptance of responsibility and that it was not unconstitutional for him to be denied a benefit. The court found inapplicable case law holding that the 5th Amendment might be violated when a reduction is conditioned upon a confession to dismissed counts. This rule applies only when there is clear evidence that a defendant actually accepted responsibility. U.S. v. Rowland, 906 F.2d 621 (11th Cir. 1990).
11th Circuit finds no duty to advise defendant that his sentence may be adjusted for acceptance of responsibility. (484) Defendant argued that he was denied due process because neither the district court nor the probation officer informed him that his sentence might be favorably adjusted under the guidelines for his acceptance of responsibility. The 11th Circuit rejected the argument, ruling that the Constitution does not require the sentencing court or the probation department to inform a defendant of the “substantive aspects of the sentencing laws.” U.S. v. Simpson, 904 F.2d 607 (11th Cir. 1990).
11th Circuit holds acceptance of responsibility provision is constitutional. (484) The 11th Circuit held that the acceptance of responsibility provision (§ 3E1.1) does not unconstitutionally deprive a defendant the right to present an effective defense. The court rejected the argument that the 5th Amendment is violated because a defendant who testifies as to his innocence must later admit to perjury to receive the benefit. It also rejected the argument that the 6th Amendment is violated because a defendant may forego testifying in his defense out of fear of a possible perjury charge, in order to later receive the benefit. Rather, the section merely formalizes and clarifies the tradition of leniency accorded defendants who admit responsibility for their actions. The section thus forewarns defendants of the consequences of their actions and better prepares them to choose as they think best. U.S. v. Henry, 883 F.2d 1010 (11th Cir. 1989).
D.C. Circuit rejects acceptance reduction for defendant who only admitted one of four counts of conviction. (486) Acceptance of responsibility involves “truthfully admitting the conduct comprising the offense(s) of conviction.” Note 1(a) to § 3E1.1(a). Defendant never did so. Although upon arrest he waived his Miranda rights and admitted possessing the crack charged in Count Four, defendant never admitted to the transactions for which he was convicted under Counts One and Three. During his interview with the probation officer who prepared his presentence report, defendant “declined to discuss his involvement” in the offenses of conviction. When he stood before the judge at sentencing and was asked whether he wished to speak, defendant once again declined. “While the district court lacks the power to force a defendant to express remorse he does not feel, it is not required to reward a remorseless defendant with a decrease in offense level. Accordingly, the D.C. Circuit ruled that the district court did not err in failing to grant defendant an acceptance of responsibility reduction. U.S. v. Webb, 255 F.3d 890 (D.C. Cir. 2001).
D.C. Circuit denies reduction for failure to talk to probation officer, testimony at hearing and decision to go to trial. (486) Defendant argued he was entitled to a reduction because he accepted responsibility for his offense during his testimony at the suppression hearing and went to trial only to preserve his 4th Amendment claims for appeal. The D.C. Circuit upheld the denial of the reduction. Defendant’s testimony at the suppression hearing was somewhat contradictory and ambiguous. It was reasonable for the district court to conclude that defendant’s failure to discuss the case with his probation officer, taken together with his ambiguous testimony during the suppression hearing and his decision to go to trial, failed to make out the clear showing necessary to justify the acceptance of responsibility reduction. U.S. v. Reid, 997 F.2d 1576 (D.C. Cir. 1993).
Oregon District Court holds guideline provision regarding acceptance of responsibility does not violate self incrimination privilege. (484) A defendant was convicted by a jury of assault resulting in serious bodily injury. After rejecting separation of powers and delegation challenges, the court found that the availability of a reduction for acceptance of responsibility does not interfere with a defendant’s right to avoid self-incrimination. Because the guidelines are not designed to induce involuntary incriminating statements, they are not facially unconstitutional. Furthermore, the defendant continually asserted his 5th Amendment privilege. The defendant was not penalized by his refusal to accept responsibility, he merely declined to accept the benefit of such a course of action. His exercise of his 5th Amendment privilege was not held against him in determining his sentence. U.S. v. Belgard, 694 F.Supp. 1488 (D.Ore. 1988).