§488 Acceptance of Responsibility: Timeliness, Sincerity, Minimizing Role
3d Circuit finds defendant who went to trial was not entitled to acceptance reduction. (488) Defendant was convicted at trial of drug trafficking offenses. At sentencing, he sought a two-level reduction for acceptance of responsibility under § 3E1.1 because he had admitted in a pretrial session that he distributed drugs. The district court denied the reduction because defendant had not admitted all of the charges against him. On appeal, the Third Circuit affirmed, ruling that this was a proper basis for denying the reduction. U.S. v. Womack, __ F.4th __ (3d Cir. Nov. 29, 2022) No. 16-1682.
3d Circuit says defendant who went to trial on some counts was not entitled to variance for acceptance. (488) Defendant was convicted at trial of conspiracy to traffic in drugs after he had pleaded guilty to substantive counts against him. At sentencing, he sought a downward variance because his guilty plea constituted acceptance of responsibility under § 3E1.1. The district court denied his request, and the Third Circuit affirmed. Defendant had engaged in “good lawyering” by pleading guilty to the substantive counts, but going to trial on the conspiracy count failed to show acceptance of responsibility. U.S. v. Womack, __ F.4th __ (3d Cir. Nov. 29, 2022) No. 16-1682.
1st Circuit affirms denial of acceptance reduction to defendant who went to trial. (488) Defendant was convicted at trial of methamphetamine offenses. He argued that he should receive a two-level reduction for acceptance of responsibility because he attempted to negotiate a guilty plea before trial and stipulated to some elements of the offenses. The First Circuit held that defendant could have accepted responsibility for the offense prior to trial and upheld denial of the reduction. U.S. v. Gauthier, __ F.4th __ (1st Cir. Nov. 18, 2022) No. 21-1785.
1st Circuit finds plea one day before trial did not qualify for third acceptance level. (488) One day before jury selection was scheduled to begin, defendant pleaded guilty to possession of a firearm by a felon. Because of the late plea, at sentencing, the government refused to move for a third level reduction for acceptance of responsibility under § 3E1.1(b). On appeal, the First Circuit affirmed, noting that because the plea occurred on the eve of trial, the government had to prepare for trial, justifying the government’s refusal to move for the third level reduction. U.S. v. Hernández-Negrón, __F.4th __ (1st Cir. Dec. 17, 2021) No. 19-2021.
11th Circuit denies acceptance credit to defendants who went to trial and denied illegality. (488) Defendants were convicted of entering a naval base to engage in “symbolic disarmament.” At sentencing, the court denied a reduction for acceptance of responsibility under § 3E1.1, despite defendants’ argument that they had gone to trial only to preserve a defense under the Religious Freedom Restoration Act. The Eleventh Circuit found no clear error, noting that defendants continued to assert that their actions were legal. U.S. v. Grady, __ F.4th __ (11th Cir. Nov. 22, 2021) No. 20-14341.
5th Circuit says defendant’s offer to plead to some counts did not mean he accepted responsibility. (488) Defendant was convicted at trial of various immigration offenses. The district court denied him an acceptance-of-responsibility reduction because he put the government to its burden of proof at trial. The Fifth Circuit affirmed, ruling that defendant’s willingness to plead guilty to some counts before trial did not mean that he accepted responsibility for all the counts that he required the government to prove at trial. U.S. v. Gaspar-Felipe, __ F.3d __ (5th Cir. July 13, 2021) No. 19-50997.
5th Circuit denies acceptance credit where defendant pled guilty on trial’s eve. (488) Defendant pleaded guilty to drug trafficking. At sentencing, the district court denied a reduction under § 3E1.1 for acceptance of responsibility because defendant waited until the eve of trial to plead guilty after the district court had conducted a lengthy pretrial hearing that required expert testimony. The Fifth Circuit found that the government had to “play its hand” in open court and defendant waited until the eve of trial to plead guilty. The court upheld the denial of an acceptance adjustment. U.S. v. Omigie, __ F.3d __ (5th Cir. Oct. 7, 2020) No. 19-40526.
5th Circuit upholds denial of acceptance credit to defendant who went to trial. (488) Although defendant went to trial on drug-trafficking and money-laundering charges, he argued at sentencing that he should receive two levels off under § 3E1.1 for acceptance of responsibility. Applying a deferential standard of review, the Fifth Circuit upheld the denial of the adjustment, noting that defendant repeatedly argued that he was not involved in a drug conspiracy and had no intent to conceal assets. U.S. v. Leontaritis, __ F.3d __ (5th Cir. Oct. 9, 2020) No. 19-40498.
6th Circuit finds contesting guilt at trial foreclosed acceptance reduction. (488) Defendant, a physician, wrote prescriptions at a “pill mill.” Defendant went to trial and was convicted of dispensing controlled substances that were not medically necessary, but he was acquitted of conspiracy. At sentencing, defendant argued that because he was acquitted of conspiracy, he was entitled to a reduction for acceptance of responsibility. The district court denied the reduction, and on appeal the Sixth Circuit affirmed. The panel noted that simply going to trial does not foreclose an acceptance reduction. But here defendant contested his guilt at trial and thus was not entitled to an acceptance reduction. U.S. v. Godofsky, __ F.3d __ (6th Cir. Nov. 26, 2019) No. 18-5450.
11th Circuit denies acceptance reduction where defendant contested facts at trial. (488) Defendant was convicted at trial of sex trafficking a minor. At trial, he argued that he did not know his victim was a minor. The Eleventh Circuit held that defendant was not entitled to an acceptance-of-responsibility reduction because his argument at trial forced the government to prove defendant’s interactions with the victim. U.S. v. Whyte, __ F.3d __ (11th Cir. July 10, 2019) No. 17-15223.
10th Circuit finds defendant who challenged evidence at trial did not accept-responsibility. (488) Defendant was convicted at trial of marijuana trafficking. He argued that he went to trial only to advance his claim that growing marijuana was legal where he lived in Colorado. At sentencing, the district court denied him an acceptance of responsibility reduction. The Tenth Circuit found no error because defendant had challenged many aspects of the government’s case at trial. U.S. v. Griffith, __ F.3d __ (10th Cir. June 24, 2019) No. 17-1365.
8th Circuit affirms denial of third acceptance point where defendant moved to withdraw plea. (488) At defendant’s sentencing for possession of a firearm by a felon, the district court gave defendant two points for acceptance of responsibility under § 3E1.1. The government did not move for the third point, and the district court did not award it. On appeal, defendant argued that the government withheld a motion for the third point because he objected to the presentence report. The Eighth Circuit found that the evidence showed that the government withheld a motion to award the third point because defendant filed a number of post-plea motions, including a motion to withdraw his guilty plea. The court therefore upheld the district court’s failure to award the third point. U. S. v. Brockman, __ F.3d __ (8th Cir. May 20, 2019) No. 18-1187.
D.C. Circuit denies acceptance reduction where defendant challenged leadership increase. (488) Defendant was convicted of drug conspiracy charges. The district court denied him an acceptance of responsibility reduction, finding that he falsely minimized his role in the conspiracy. Under note 1(A) to § 3E1.1, “A defendant who falsely denies … relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility.” Since the panel had elsewhere upheld the district court’s finding that defendant was one of the leaders of the conspiracy, the D.C. Circuit held that it was not unreasonable to conclude that he failed to accept responsibility when he falsely denied being a leader. Defendant’s motivation was immaterial. He could not accept responsibility for his conduct and simultaneously contest the sufficiency of the evidence that he engaged in that conduct. U.S. v. Leyva, __ F.3d __ (D.C. Cir. Feb. 26, 2019) No. 17-3027.
5th Circuit denies acceptance credit based on sentencing objections and attempt to withdraw pleas. (488) Defendants, who ran a bitcoin business, pled guilty to operating an unlicensed money servicing business. The district court denied them a reduction for acceptance of responsibility, citing one defendant’s erroneous contention that he never actually operated the exchange business and did not profit from it. The court also pointed to defendants’ objections to the determination that they exchanged $2.6 million for bitcoin; their objections to their base offense levels based on their assertion that there were no victims; and their attempt to withdraw their guilty pleas. The Fifth Circuit ruled that the record supported the district court’s assessment that defendants had not accepted responsibility for their bitcoin conspiracy offense. U.S. v. Lord, __ F.3d __ (5th Cir. Feb. 15, 2019) No. 17-30486.
5th Circuit upholds refusal to make additional reduction in absence of government motion. (488) Defendant argued that the district court erred by denying his request to grant the one-level sentence reduction. He contended that the government based its opposition on a reason not identified in U.S.S.G. § 3E1.1, so that the district court should have applied the one-level reduction even without the government’s motion. The Fifth Circuit upheld the denial. Its review was limited to determining whether the government considered an interest within § 3E1.1. Here, the government gave at least two reasons for refusing to move that were fully supportable – defendant’s refusal to help decrypt his hard drives and his inadequacy in speaking with the victims’ attorneys about restitution. See § 3E1.1, Note 1(C) (voluntary payment of restitution prior to adjudication of guilt) and (E) (voluntary assistance to authorities). Thus, the district court did not err by denying the one-level reduction in the absence of a motion by the government. U.S. v. Halverson, __ F.3d __ (5th Cir. July 30, 2018) No. 17-40661.
8th Circuit denies acceptance credit for minimizing conduct and frivolous objections to relevant conduct. (488)(490) Defendant pled guilty to multiple charges based on a scheme to export firearms to Lebanon. He argued that because he pleaded guilty to and truthfully admitted his criminal conduct, he should not have been denied a three-level reduction for acceptance of responsibility, § 3E1.1(a). The Eighth Circuit rejected his argument. In addition to objecting to the number of firearms that he had previously admitted, defendant also stipulated to several statements in the plea agreement that he later objected to in the PSR. Defendant also stipulated in the plea agreement that each of the overt acts in the indictment was true, but then denied making such stipulation in his written objections to the PSR. U.S. v. Zeaiter, __ F.3d __ (8th Cir. June 11, 2018) No. 16-4066.
6th Circuit denies acceptance reduction where cooperation was “half-hearted.” (488) Defendant was convicted of drug trafficking charges. He argued for the first time on appeal that the district court should have credited him at sentencing for accepting responsibility by admitting to the DEA agents and testifying at trial that the cocaine found in the minivan in which he was a passenger was his. The government argued that defendant testified at trial to protect the driver by concealing her involvement, rather than to take responsibility for his actions, and contended that defendant assisted the officers in opening the hidden trap in the minivan because he did not want them to destroy it after he paid $25,000 to have it installed. Similarly, the government maintained that defendant’s cooperation was “half-hearted,” as he agreed to participate in a controlled delivery but then tipped off the buyer about the presence of law enforcement, undermining the delivery. Defendant offered no reply, and thus the Sixth Circuit ruled that he failed to establish plain error. U.S. v. Calvetti, 836 F.3d 654 (6th Cir. 2016).
8th Circuit denies acceptance credit for delay in reporting husband’s abuse of daughter. (488) Defendant pled guilty to one count of receiving child pornography. She argued that she earned a reduction for acceptance of responsibility by taking her daughter to law enforcement to report her husband’s abuse. The Eighth Circuit disagreed, noting that defendant only took her daughter to law enforcement years after defendant’s estranged husband had abused the girl and only after the girl disclosed the abuse to someone outside of the family. Further, during her proffer interviews, defendant refused to admit any involvement and denied that she was the woman pictured in a pornographic photo of her husband and infant granddaughter. She participated in the sexual abuse of several children. She never reported her husband’s sexual abuse of the children to law enforcement and failed to disclose their possession of child pornography during the investigation. Various law enforcement officials, as well as the prosecution, afforded defendant numerous opportunities to admit her role in the abuse and to accept responsibility. Defendant chose to lie repeatedly during those interviews. U.S. v. Jensen, 834 F.3d 895 (8th Cir. 2016).
8th Circuit says court properly adopted unobjected-to facts in PSR. (240)(488)(765) Defendant pled guilty to marijuana distribution and conspiracy. He argued on appeal that the district court erred in adopting the PSR’s drug quantity calculation because it double counted two witnesses’ cocaine estimates. The Eighth Circuit held that the court did not err in adopting the unobjected-to facts in the PSR. “A fact in a PSR to which the defendant has not specifically objected is a fact admitted by the defendant.” Defendant argued that this did not apply because the district court had threatened to deny him credit for acceptance of responsibility if he persisted with his objections to the PSR. The Eighth Circuit rejected this argument, finding that the court did not “threaten” defendant, but simply warned him of the consequence of pursuing frivolous guideline objections. U.S. v. Trevino, __ F.3d __ (8th Cir. July 14, 2016) No. 15-1534.
1st Circuit finds no plain error in failure to grant third-level acceptance reduction. (488)(855) Defendant pled guilty to drug charges. His PSR included a two-level reduction for acceptance of responsibility, but not the additional one-level reduction for “timely notifying authorities of his intention to enter a plea of guilty” under §3E1.1(b). Defendant did not object to the PSR, nor did his sentencing memo mention the reduction under §3E1.1(b). He nonetheless argued for the first time on appeal that the district court should have given him the one-level reduction. The First Circuit found it unnecessary to decide whether defendant waived or merely forfeited the issue, because the §3E1.1(b) reduction requires a “motion of the government.” The suggestion that the prosecutor’s stray comment misstating defendant’s offense level by one satisfied the “formal motion” requirement was frivolous. There was no error, plain or otherwise. U.S. v. Acedo-Sueros, __ F.3d __ (1st Cir. June 17, 2015) No. 14-1732.
6th Circuit reverses where court relied on late motion for rearraignment to deny acceptance reduction. (488) The district court’s pretrial order advised that any motion for rearraignment must be filed at least two days before pretrial in order to avoid losing credit for acceptance of responsibility. Defendant moved for rearraignment after the deadline, and the district court denied the acceptance reduction, finding that the late motion required the government and the court to waste time and resources. The Sixth Circuit remanded, finding the court conflated the standards for granting credit under subsections (a) and (b) of §3E1.1. Although defendant pled guilty after the pretrial order’s deadline had expired, he did so before the deadline relevant to §3E1.1(a), i.e. in advance of trial. Nothing in the text or Application Notes of §3E1.1 indicated that a district court may consider under §3E1.1(a) the effect of delay on preparation costs for the government and the court. Subsection (a) is focused only on whether the defendant “clearly demonstrates acceptance of responsibility,” while subsection (b) is focused on whether the defendant’s “timely notifying authorities of his intention to enter a plea of guilty … permit[s] the government to avoid preparing for trial and permit[s] the government and the court to allocate their resources efficiently.” Conflating the two subsections ignored the division of §3E1.1 into two distinct subsections with two distinct reduction levels. U.S. v. Hollis, __ F.3d __ (6th Cir. May 25, 2016) No. 15-5246.
11th Circuit finds belated apology at sentencing did not show acceptance of responsibility. (488) Defendant participated in a scheme to file fraudulent income tax returns with stolen identities. He challenged the denial of an acceptance of responsibility reduction, contending that he accepted responsibility by pleading guilty to the counts of theft of public money and by apologizing for his actions during sentencing. The Eleventh Circuit found no clear error. Defendant’s belated apology at sentencing was entitled to little weight. Moreover, he downplayed his culpability at sentencing by stating that someone had “talked me into it.” Defendant also frivolously contested relevant conduct by forcing the government to go to trial on the two counts of aggravated identity theft. Throughout the case, defendant denied that his victims were real persons and that he knew they were real persons, despite being caught on camera stating precisely the opposite. U.S. v. Sammour, __ F.3d __ (11th Cir. Mar. 16, 2016) No. 13-13962.
8th Circuit denies acceptance reduction where defendant failed to show remorse until sentencing. (488) Defendant, an investment advisor who produced and was regularly featured on a local radio show, was convicted of wire fraud and mail fraud for swindling 23 investors out of over $1.8 million. The Eighth Circuit held that the district court did not plainly err in failing to apply a two-level acceptance-of-responsibility reduction. Defendant took his case to trial and denied his guilt to the end, maintaining he had told no lies and misrepresented no facts. Although he voiced remorse at sentencing and wanted to repay his victims’ losses, the district court described his expressions as “more like … remorse that [he] got caught … and that [his] life has been ruined.” The acceptance of responsibility reduction is not intended to apply to a defendant “who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” Note 2 to § 3E1.1. U.S. v. Rodd, __ F.3d __ (8th Cir. June 26, 2015) No. 14-3256. XE “U.S. v. Rodd, __ F.3d __ (8th Cir. June 26, 2015) No. 14-3256.”
6th Circuit upholds denial of acceptance reduction despite prosecutor’s contrary recommendation. (488) Defendant pled guilty to conning investors out of $1.3 million with false promises of buried treasure. Although the government agreed that defendant should receive an acceptance of responsibility reduction, the district denied the reduction. Even after pleading guilty to wire fraud, defendant continued to argue he should receive leniency given his genuine belief that “there’s gold in those hills.” The district court considered this belief “incredulous,” and inconsistent with a defendant who had accepted responsibility for concocting a $1.3 million fraud. The Sixth Circuit held that the district court did not err in denying defendant the reduction on this basis. The prosecutor’s recommendation was “relevant, but not dispositive.” U.S. v. Reed, __ F.3d __ (6th Cir. June 5, 2015) No. 14-2071.
5th Circuit says motion for additional acceptance reduction cannot be denied based on good faith sentencing dispute. (488) Defendant, a credit union employee, embezzled cash from the bank’s vaults. Her PSR provided for a 14-level increase for a loss of $690,000. It recommended a two-level acceptance reduction based on defendant’s timely guilty plea, and also stated that the government would move for an additional one-level reduction under §3E1.1(b). However, defendant filed written objections to the loss amount. She disputed the loss amount again at sentencing, but the court found that the loss was $690,000. The government then declined to move for the additional one-level acceptance reduction, stating that, in essence, it had “been taken to the task of trial,” by spending a day discussing the loss amount. The Fifth Circuit held that the government could not refuse to move for a sentence reduction under §3E1.1(b) simply because the defendant requested a hearing to litigate a good faith sentencing dispute. Under Amendment 775, the government should not withhold such a motion based on interests not identified in §3E1.1. The panel vacated the sentence and remanded to allow the district court to determine in the first instance whether defendant’s challenge to the amount of funds stolen was made in good faith. U.S. v. Castillo, __ F.3d __ (5th Cir. Feb. 26, 2015) No. 13-11007.
1st Circuit rejects acceptance reduction for defendant who denied being part of drug conspiracy. (488) A jury convicted defendant of conspiracy to distribute five kilograms or more of cocaine. He challenged the district court’s refusal to grant him a two-level reduction for acceptance of responsibility. He acknowledged that he disputed the drug weight, but contended that the weight of the substance was not a core element of the crime of conspiracy but only an aggravating element. The First Circuit upheld the denial of the reduction. Defendant did not admit his participation in the conspiracy until trial commenced. In his pretrial memorandum, submitted to the court 30 days before trial, defendant continued to contest his guilt and to argue that he did not conspire to distribute cocaine but, instead, simply entered into a buyer-seller arrangement with Guzman, his co-conspirator. Defendant’s protestation that he did not participate in a conspiracy, on its own, would be sufficient to uphold the district court’s decision to deny the reduction. However, defendant’s dispute of the drug weight would also be an adequate and independent basis for refusing the reduction. U.S. v. Melendez, __ F.3d __ (1st Cir. Dec. 22, 2014) No. 13-1899.
1st Circuit denies acceptance credit despite factors raised by defendant. (488) Although defendant received an obstruction of justice enhancement based on his perjury during a suppression hearing, he nonetheless argued that he was entitled to an acceptance of responsibility reduction. He noted that upon arrest, he admitted his role in the drug sale, divulged the existence of his stash house, consented to a search of that structure and seizure of the contraband from it, pled guilty, complied with the terms of his pretrial release, and was contrite. The First Circuit ruled that the factors defendant raised did not make his case extraordinary, and were not sufficient to overcome the district court’s finding that he did not deserve the acceptance reduction. U.S. v. Maguire, 752 F.3d 1 (1st Cir. 2014).
1st Circuit denies acceptance reduction to defendant who claimed threats were “blowing off steam.” (488) Defendant was convicted of threatening a United States official, a supervisor at the court of appeals who discussed the status of defendant’s case with defendant over the phone. The First Circuit upheld the denial of an acceptance of responsibility reduction. First, defendant proceeded to trial, and while this hurdle was not insurmountable, putting the government to its burden of proof at trial creates a rebuttable presumption that a downward adjustment is not available. The district court found that even though defendant admitted to making the threatening remarks, his claim that he was just “blowing off steam” and was never actually going to act on his threats, showed he declined to accept full responsibility for his words. U.S. v. Stefanik, 674 F.3d 71 (1st Cir. 2012).
1st Circuit denies acceptance of responsibility adjustment after trial. (488) A jury convicted defendant of drug trafficking. At sentencing, defendant sought a two-level reduction in offense level for acceptance of responsibility, arguing that he had gone to trial only because he and the government could not agree during plea negotiations on the drug quantity involved in his offense. The district court declined to grant the reduction, explaining that it would not take into account the fact that pretrial plea negotiations had not been fruitful. The First Circuit agreed with the district court that the failure of plea negotiations is not one of the rare circumstances in which a defendant who elects to go to trial is entitled to a reduction for acceptance of responsibility. U.S. v. Gonzalez-Velez, 587 F.3d 494 (1st Cir. 2009).
1st Circuit holds government’s discretion to move for acceptance reduction is similar to its discretion under §5K1.1. (488) Under a previous version of U.S.S.G. §3E1.1(b), a defendant who has received a two-level acceptance of responsibility reduction, and whose offense level was 16 or greater, was entitled to receive an additional one-level reduction if he had timely notified authorities of his intent to plea guilty. In 2003, Congress amended §3E1.1(b) to add a government motion requirement. The First Circuit held that the 2003 amendment made the §3E1.1(b) reduction contingent on the government’s decision to file a motion requesting the reduction. The provision gives the government discretion – akin to its discretion under §5K1.1 – to determine whether to file a motion. Under this standard, a defendant who challenges the prosecutor’s refusal to file a motion under the revised §3E1.1(b) must show that the refusal was based on an unconstitutional motive or was not rationally related to any legitimate government end. Defendant could not meet this standard. U.S. v. Beatty, 538 F.3d 8 (1st Cir. 2008).
1st Circuit denies third level reduction to defendant who pled guilty three days before trial. (488) Defendant argued that the government refused in bad faith to move for the third level acceptance of responsibility reduction. The district court found no bad faith. Defendant entered his guilty plea three days before trial was scheduled to begin. The district court heard from the government that it had prepared for trial. Thus, the First Circuit found that the district court did not abuse its discretion. U.S. v. Jaca-Nazario, 521 F.3d 50 (1st Cir. 2008).
1st Circuit denies acceptance reduction to defendant who wrote threatening letters while in prison. (488) Defendant pled guilty under the Violence Against Women Act, 18 U.S.C. § 2262, to the interstate violation of a protective order. The First Circuit held that defendant was not entitled to an acceptance of responsibility reduction since, while in prison pending sentencing, defendant wrote a series of threatening letters to his wife, a form of communication that the protective order then in force expressly forbade. This was flatly inconsistent with acceptance of responsibility. U.S. v. Robinson, 433 F.3d 31 (1st Cir. 2005).
1st Circuit rejects acceptance of responsibility to defendant who denied mens rea at trial. (488) The district court granted defendant a two-level reduction for acceptance of responsibility because (1) even though he went to trial, he admitted, pretrial, “the conduct” underlying the charges, and (2) prior to trial, he paid the IRS about $55,000 in back taxes. The First Circuit reversed. The district court ruled that defendant admitted the “essential factual elements of guilt” before trial, even though he went to trial to claim that his conduct was not “willful” and therefore not criminal. However, defendant denied the mens rea of the crimes, which is one of the “essential factual elements of guilt.” Defendant’s “willfulness” defense, which essentially was that “I didn’t know that what I was doing was illegal so I should not be punished for my actions,” is the exact opposite of an expression of remorse. As for defendant’s pretrial payment of back taxes, under U.S. v. Bean, 18 F.3d 1367 (7th Cir. 1994), the court could grant defendant an acceptance of responsibility reduction based on his payment of pretrial restitution. However, the record here did not support the acceptance reduction. The extent of restitution paid by defendant was not clear, and it was not clear that his payment was truly voluntary. Because defendant may have owed the same debt even if acquitted, the restitution may not have been voluntary and therefore not indicative of his acceptance of responsibility for his crimes. U.S. v. Mikutowicz, 365 F.3d 65 (1st Cir. 2004).
1st Circuit holds that defendant did not forfeit issue not raised until court issued ruling. (488) The government conceded it was error not to give defendant a three-level acceptance of responsibility reduction, because the district court found that defendant was entitled to a two-level reduction under USSG § 3E1.1(a), and he satisfied the criteria for the third level under § 3E1.1(b)(2). However, it argued that defendant forfeited the issue by failing to raise it in the district court. The First Circuit found no forfeiture, because defendant consistently argued that he was entitled to a three-level reduction, the government warned the district court against its eventual ruling, the ruling was contrary to both parties’ positions, and the sentencing judge did not invite further arguments. The government had argued that defendant was not entitled to the two-level reduction, but said that if he was entitled to the two-level reduction, he was most likely entitled to a third level. No party focused on the possibility that the court would deny a third-level reduction if the court granted a two-level reduction. Defendant had no reason to think this was an issue until the court ruled. “We generally do not require objections to be made to hypothetical outcomes which neither party anticipated.” A post-sentence objection was not required. U.S. v. Gallant, 306 F.3d 1181 (1st Cir. 2002).
1st Circuit denies acceptance reduction where defendant gave discredited story to probation officer. (488) Defendant’s PSR recommended that she receive a two-level acceptance of responsibility reduction. The court tentatively agreed with that recommendation, but when defendant’s attorney pressed for a third acceptance point, the court considered the matter more fully and decided against any reduction. It found that defendant had wavered in her willingness to take complete responsibility for her criminal case. At the start of the plea colloquy, defendant claimed that she did not know about the other defendants’ participation in the robbery until after they had gone into hiding. When pressed, defendant conceded that she had actually learned about their involvement much earlier. Then, when she met with the probation officer shortly before sentencing, defendant against tried to suggest that several days had passed after the robbery before she learned that the others had been involved. On these facts, the First Circuit found it was not clearly erroneous for the district court to rule that the acceptance reduction was unwarranted. U.S. v. Vega-Coreano, 229 F.3d 288 (1st Cir. 2000).
1st Circuit says defendant need not accept forfeiture allegations to receive acceptance reduction. (488) Defendant was charged with various racketeering and extortion charges. The district court granted him a two-level acceptance reduction, but declined to give him an additional one level reduction since defendant’s notice of his intent to plead guilty was not timely, the government had to prepare for trial, and the forfeiture issue contested by defendant would require a trial. The First Circuit held that the district court improperly relied on defendant’s refusal to agree to the government’s forfeiture allegations, since forfeitures under the federal drug and racketeering statutes are elements of the sentence, rather than part of the criminal offense. Section 3E1.1(b) refers to a “plea of guilty” rather than a plea of guilty and an acceptance of the sentence imposed by the government. The decision to deny the reduction could be upheld if the other grounds supported the decision. However, because of ambiguities, the appellate court could not determine whether the denial of the reduction was clearly erroneous. On remand, the court should determine how much time the government had spent on preparing for trial prior to the guilty plea notification. U.S. v. Cunningham, 201 F.3d 20 (1st Cir. 2000).
1st Circuit says government’s refusal to plea bargain did not excuse defendant from timeliness requirement. (488) To receive a § 3E1.1(b)(2) reduction for timely notifying the prosecutor of an intent to plead guilty, the notice must ordinarily be given well before trial, “thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently.” Defendant did not agree to plead guilty until trial was actually underway and the government had called one witness. He claimed that he was ready to plead guilty well before trial, but the government refused to agree to a plea unless a specific co-defendant also plead guilty. The First Circuit held that the government’s refusal to grant defendant a desired plea bargain did not excuse him from § 3E1.1(b)(2)’s timeliness requirement. Since the government’s consent to a guilty plea is not required, what defendant meant was that the government would not agree before trial to confer certain benefits within its control (supporting an acceptance reduction and not filing a § 851 information) until the co-defendant pled guilty. However, the “plea of guilty” that § 3E1.1 envisions is an unconditional plea to the indictment, unless the government and defendant agree to some lesser set of offenses, conditions or both. U.S. v. Hines, 196 F.3d 270 (1st Cir. 1999).
1st Circuit finds trial preparation not sufficient to deny § 3E1.1(b)(2) reduction. (488) On February 3, 1995, defendant was arraigned on drug trafficking charges. Defendant filed eight pre-trial motions, including motions to retain rough notes, for discovery and inspection, to identify a confidential informant, for a bill of particulars, to revoke his detention order, to suppress contraband, to sever defendants, and to enlarge the time to file pre-trial memoranda. The government responded to seven of defendant’s motions. On April 4, defendant and the government entered into a plea agreement. The First Circuit held that the court abused its discretion in concluding that the government had engaged in trial preparation substantial enough to deny the additional one level acceptance of responsibility reduction under § 3E1.1(b)(2). The government’s responses to defendant’s pre-trial motions and its chemical analysis of the controlled substance did not constitute trial preparation. Although the motions forced the government to identify evidence and do legal research, the guidelines do not force a defendant to forgo the filing of routine pre-trial motions as the price for receiving a one level reduction. Also, the government lawyer said the files did not reflect any trial preparation by the government, and the government recommended that defendant receive the reduction. U.S. v. Marroquin, 136 F.3d 220 (1st Cir. 1998).
1st Circuit gives 3 levels off where pleas were entered two weeks before trial. (488) Five defendants were all charged in a complex marijuana conspiracy. A year after indictment and two weeks before trial was scheduled, they pled guilty. The district court granted them a three level acceptance of responsibility reduction. The government argued that defendants did not timely notify” authorities of their intention to plead guilty. The district court ruled the pleas were timely when taken in context of the total future duration of the case if the pleas were not entered. The First Circuit held the timeliness finding was not clearly erroneous. Timeliness is a concept, not a constant, and it must be evaluated in context. The trial court found that although the notice was given late in absolute terms, it was still early enough in the game to be of substantial benefit to both the prosecution and the government. It forestalled the need to make final preparations for a full-scale drug trial, and eliminated the need to prepare to try a tax charge against defendants. U.S. v. Dethlefs, 123 F.3d 39 (1st Cir. 1997).
1st Circuit denies § 3E1.1 reduction where defendant claimed gun belonged to girlfriend. (488) During a search of defendant’s girlfriend’s apartment, police found defendant standing in a bedroom in his underwear reaching toward the bed. A gun was found under the pillow on the bed. Defendant claimed he was reaching for his pants. The First Circuit affirmed the denial of a § 3E1.1 reduction even though defendant did take some steps toward accepting responsibility. The judge did not believe defendant’s repeated assertions that the gun no longer belonged to him on the night the police executed the warrant. Although his girlfriend was unfamiliar with the gun, defendant continued to insist that he had given it to her, and that she kept the loaded gun under the pillow upon which he had been sleeping. The district court found that while defendant may have made the gun available to his girlfriend while he was in the apartment, he continued to possess the gun until his arrest. U.S. v. Muriel, 111 F.3d 975 (1st Cir. 1997).
1st Circuit counts timeliness from date of notification of intent to plead, not date of plea. (488) The district court denied defendant the third level reduction for acceptance of responsibility under § 3E1.1(b)(2), ruling he did not timely notify authorities of his intention to enter a guilty plea. The court emphasized that defendant did not plead guilty until after the case was placed on the court’s trial calendar. The First Circuit held that timeliness under § 3E1.1(b)(2) should be based on the date defendant notifies authorities of his intent to plead guilty, not the date that the plea is entered. Here, the case was placed on the court’s calendar March 22, and defendant did not plead until April 5. However, notification occurred on March 16, when the parties filed their executed plea agreement with the court. It was clear error for the district court to rule that defendant’s acceptance of responsibility was untimely. U.S. v. Munoz, 83 F.3d 7 (1st Cir. 1996).
1st Circuit says statement in PSR expressing remorse did not warrant § 3E1.1 reduction. (488) Defendant argued for the first time on appeal that he should have received a § 3E1.1 reduction. In support of his claim, he offered only a statement in the PSR indicating that he had expressed remorse for his wrongdoing and accepted responsibility for it, although the probation officer ultimately concluded that defendant was not entitled to the reduction. The First Circuit denied the reduction. Defendant continued to deny responsibility for his crime at sentencing, stating that he lacked criminal intent at the time of the crimes and declaring his innocence. There was no error, let alone plain error. U.S. v. Perez‑Perez, 72 F.3d 224 (1st Cir. 1995).
1st Circuit says incriminating statements did not establish acceptance of responsibility. (488) Defendant was acquitted in state court of the murders of two men. He was then convicted in federal court of firearms charges stemming from the murders. He contended that prior incriminating statements he made at his state trial showed his acceptance of responsibility. He admitted that he owned the gun used to kill the men and that he helped clean up the cabin after the murders. The First Circuit held that making incriminating statements, without more, cannot establish acceptance of responsibility. Defendant’s statements were made to defend against state charges and did not warrant a § 3E1.1 reduction. U.S. v. Lombard, 72 F.3d 170 (1st Cir. 1995).
1st Circuit says court’s statement at plea hearing did not obligate it to award additional § 3E1.1 reduction. (488) At defendant’s plea hearing, the court stated that defendant could “pretty well count on” receiving an additional one point reduction for acceptance of responsibility. Defendant argued that the court should have been bound by this statement because no new factors were raised before sentencing to justify the court’s change of mind. The First Circuit found that the court was not bound by its earlier statement. By the time of sentencing, the court had further time to reflect, read the presentence report, and deemed it unwise policy to automatically award the extra reduction when the timeliness element was so utterly lacking. Defendant did not plead guilty until the day of trial, after the jury was summoned and the government prepared its case. U.S. v. Martinez-Martinez, 69 F.3d 1215 (1st Cir. 1995).
1st Circuit uses “one book” rule to deny three level acceptance of responsibility reduction. (488) Defendant was sentenced in May 1993, but the district court applied the 1988 guidelines in effect when defendant committed his offense because the 1992 guidelines would have resulted in a longer sentence. The 1st Circuit relied on the “one book” rule in § 1B1.11(b)(2) of the 1992 guidelines to find that defendant was not eligible for the three level acceptance of responsibility reduction available under the 1992 guidelines. This provision states that when a district court applies an earlier version of the guidelines, it must apply all of the guidelines in that earlier version, not one section from one version and one section from another. The application of the “one book” rule did not violate the ex post facto clause. U.S. v. Springer, 28 F.3d 236 (1st Cir. 1994).
1st Circuit says settlement of civil lawsuit did not demonstrate acceptance of responsibility. (488) Defendant, a bank officer, was convicted of nine counts of bank fraud for concealing his interest in bank loans he obtained under fictitious names. The 1st Circuit reversed an acceptance of responsibility reduction, holding that defendant’s payment to the banks in settlement of a civil lawsuit was not a “voluntary payment of restitution prior to adjudication of guilt.” The payment was not genuinely voluntary, but was motivated by a desire to settle the civil lawsuit brought by the banks. Moreover, the reduction is not intended to apply to a defendant who puts the government to its burden of proof at trial. Defendant denied his factual guilt, contending that he did not intend to defraud the banks. U.S. v. Bennett, 37 F.3d 687 (1st Cir. 1994).
1st Circuit denies reduction to defendant who asserted innocence during a post-conviction interview. (488) Defendant argued that the court denied him a reduction for acceptance of responsibility without affording him an adequate opportunity to evince remorse. The 1st Circuit affirmed the denial of the reduction. Defendant continued to assert his innocence during a post-conviction interview with the probation officer. At sentencing, the district court twice invited defendant to accept responsibility, by pointing out that the sentencing hearing would be the last opportunity to do so. Nevertheless, when defendant asked the court for leniency, he said nothing which might show remorse. U.S. v. Tuesta-Toro, 29 F.3d 771 (1st Cir. 1994).
1st Circuit holds that conditional offer to plead was not timely notice of intention to plead guilty. (488) Several weeks after his arraignment, defendant indicated that he was prepared to plead guilty, but for a dispute as to the weight of the drugs involved. He did not unconditionally plead guilty until the date the court had set for jury selection. The 1st Circuit refused to find defendant was entitled to an additional one level reduction for acceptance of responsibility under section 3E1.1(b)(2). That section was designed to allow the government and the district court to conserve resources by avoiding unnecessary trial preparation. A conditional offer to plead guilty does not serve this end. U.S. v. Morillo, 8 F.3d 864 (1st Cir. 1993).
1st Circuit denies credit for acceptance where defendant exaggerated wife’s illness. (488) To minimize his culpability for failing to appear, defendant exaggerated the severity of an illness suffered by his wife. The 1st Circuit concluded that this conduct justified the district court’s decision to deny defendant a downward adjustment for acceptance of responsibility. U.S. v. Agoro, 996 F.2d 1288 (1st Cir. 1993).
1st Circuit affirms that defendant who gave false name to authorities did not accept responsibility. (488) The 1st Circuit rejected defendant’s claim that he had accepted responsibility for his offense of failing to appear in court. He used false identification even after Florida authorities confronted him. Moreover, after observing defendant’s demeanor, the district court concluded that he was opportunistic and would say anything to minimize his sentence. U.S. v. Tracy, 989 F.2d 1279 (1st Cir. 1993).
1st Circuit denies acceptance of responsibility reduction based on lack of pre-trial admissions. (488) Defendant contended that his expressions of remorse after his conviction on drug counts entitled him to a reduction for acceptance of responsibility. The 1st Circuit affirmed the denial of the reduction, finding defendant’s post-conviction statements to be untimely. Application note 2 to section 3E1.1 states that in rare situations, a defendant who goes to trial may receive the reduction, but only based upon pre-trial statements and conduct. Although defendant claimed that he could not admit his guilt prior to trial because his co-defendants threatened him and his family, the district judge knew of this contention before he rejected defendant’s request for the adjustment. The district court had the opportunity to assess defendant’s demeanor and credibility, and to evaluate his acceptance of responsibility, including his allegations of threats, in the context of the case as a whole. U.S. v. Carrasquillo-Ramos, 980 F.2d 32 (1st Cir. 1992).
1st Circuit remands to clarify whether denial of acceptance of responsibility reduction was improperly based on alcohol abuse. (488) Defendant contended he was entitled to a reduction for acceptance of responsibility because he paid most of the money back that he embezzled on the very day he was confronted by investigators, he cooperated with authorities, voluntarily resigned his position as bankruptcy trustee, and entered drug and alcohol rehabilitation programs. The district court denied the reduction in part because at trial defendant claimed that his alcohol and drug problem forced him to take the money. The 1st Circuit remanded for resentencing, because it was unclear from the lower court’s comments whether the court found no acceptance of responsibility or whether its conclusion rested simply upon defendant’s showing insufficient remorse for having become involved with drugs and alcohol in the first place. The first question was relevant, the second was relevant only to the extent it shed light upon the first question. U.S. v. Curran, 967 F.2d 5 (1st Cir. 1992).
1st Circuit denies acceptance of responsibility reduction to defendant who claimed innocence. (488) The 1st Circuit denied defendant a reduction for acceptance of responsibility in light of defendant’s claims of innocence and testimony that the district court found “essentially perjurious.” U.S. v. Resurreccion, 978 F.2d 759 (1st Cir. 1992).
1st Circuit rejects reduction where defendant did not accept responsibility until trial was almost over. (488) The 1st Circuit affirmed the district court’s decision to deny defendant a reduction for acceptance of responsibility. Although defense counsel conceded during trial that defendant committed the firearms offenses, he did not do this until the trial was virtually over. Moreover, defendant did not accept responsibility for the drug charges for which he was convicted. U.S. v. Tabares, 951 F.2d 405 (1st Cir. 1991).
1st Circuit denies acceptance of responsibility reduction to defendant who claimed he impersonated DEA agent to help drug user. (488) Defendant falsely told two women that he was a DEA agent, that he knew the DEA was about to arrest them for distributing drugs, that he would held them avoid arrest, and that they must follow his orders or drug “kingpins” would harm them. He convinced the women to quit their jobs and come work at his business, paying them with checks that often bounced. The district court denied defendant a reduction for acceptance of responsibility because he did not accept that he did anything more than try to help one of the women in her drug problems. He stated that although he regretted the impersonation, his intent was good. The 1st Circuit affirmed the denial of the reduction. Although defendant had every right to make this statement, it was not consistent with an acceptance of responsibility. U.S. v. Pavao, 948 F.2d 74 (1st Cir. 1991).
1st Circuit denies acceptance of responsibility reduction to defendant who gave three different stories. (488) The 1st Circuit affirmed the district court’s decision to deny defendant a reduction for acceptance of responsibility. Defendant provided three different versions of the events leading to his arrest. The district court had the opportunity to observe defendant’s demeanor and evaluate his credibility when he testified at trial. Defendant’s claim that he was coerced in transporting cocaine was inconsistent with acceptance of responsibility. U.S. v. Uricoechea-Casallas, 946 F.2d 162 (1st Cir. 1991).
1st Circuit rules that credibility and demeanor play a critical role in deciding whether defendant has accepted responsibility. (488) At sentencing the defendant said he was remorseful, but the district court found that he did not deserve the two point reduction for acceptance of responsibility because he “fail[ed] to voluntarily and truthfully acknowledge the extent of his conduct.” On appeal, the 1st Circuit affirmed, noting that acceptance of responsibility is a “fact-dominated issue.” “Credibility and demeanor play a critical role in determining whether a person is genuinely contrite.” “Because the court had a plausible basis for arriving at its conclusion, no more is required.” U.S. v. Royer, 895 F.2d 28 (1st Cir. 1990).
1st Circuit denies acceptance of responsibility reduction to defendant who continued to deny his role in offense. (488) Defendant contended he was denied a reduction for acceptance of responsibility because he denied being the captain of the vessel smuggling the aliens, a fact he allegedly stipulated to at the time he signed his plea agreement. Defendant contended there was no inconsistency between his original stipulation to co-piloting the vessel and his denial of being the ship’s captain. Although the 1st Circuit agreed that there was no contradiction between the two statements, it still found the reduction unwarranted. The record did not reflect any genuine feeling of remorse by defendant. In his allocution, defendant only denied his role as captain and did not admit his role as co-pilot. U.S. v. Reyes, 927 F.2d 48 (1st Cir. 1991).
1st Circuit finds no acceptance of responsibility by defendant who lied about his capacity to deliver cocaine. (488) The 1st Circuit rejected defendant’s argument that the trial court lacked a sufficient foundation to withhold a reduction for acceptance of responsibility. Defendant attempted to minimize his role by claiming that he never intended to sell, and lacked the ability to deliver, one kilogram of cocaine that he promised to sell to government agents. U.S. v. Bradley, 917 F.2d 601 (1st Cir. 1990).
1st Circuit finds that no acceptance of responsibility where defendant did not admit involvement. (488) Defendant argued that the district court erred in declining to grant him a reduction in his offense level for acceptance of responsibility. The 1st Circuit disagreed, noting that the defendant had yet to truthfully admit and describe his involvement in the offenses of conviction. The court found that acceptance of responsibility “necessitates candor and authentic remorse, nor merely a pat recital of the vocabulary of contrition,” which was all the defendant had done in this case. The reduction was properly denied. U.S. v. Garcia, 905 F.2d 557 (1st Cir. 1990).
1st Circuit holds sentencing courts have wide latitude in determining whether a defendant’s acceptance of responsibility was timely. (488) Defendant argued that the sentencing court erroneously refused to grant him a 2 point decrease in his base offense level even though he had manifested an acceptance of responsibility during the allocution stage of the proceedings. The 1st Circuit disagreed, but remanded the case on other grounds. Under Application Note 1(g) to guideline § 3E1.1, a sentencing judge has wide latitude in considering the timeliness of a defendant’s acceptance of responsibility. The record reflected no abuse of discretion in this regard. U.S. v. Perez-Franco, 873 F.2d 455 (1st Cir. 1989).
2nd Circuit says lateness of plea, by itself, was not enough to deny acceptance reduction. (488) The district court denied defendant’s request for an acceptance of responsibility reduction based on the lateness of defendant’s plea. The court found that, by pleading two weeks before trial, defendant had exceeded the time limits, and was not entitled to the reduction. The Second Circuit reversed, ruling that the lateness of defendant’s plea by itself was not a sufficient reason for denying him the acceptance reduction. The guidelines specifically provide that timeliness of a plea is primarily relevant to the reduction of an additional point under § 3E1.1(b), for “helping the authorities save resources.” While under certain circumstances the lateness of a plea might indeed weigh against the defendant, those circumstances were not present here. The paramount factor in determining eligibility for a § 3E1.1 credit is whether the defendant truthfully admits the conduct comprising the offense of conviction. Here, defendant’s lateness in pleading guilty did not provide a sufficient basis for the denial of more than a one-point reduction for acceptance of responsibility. U.S. v. Kumar, 617 F.3d 612 (2d Cir. 2010).
2nd Circuit denies reduction based on minimizing allocution and meritless objections to PSR. (488) the district court denied defendant’s request for an acceptance of responsibility reduction, finding that he had not sufficiently accepted responsibility because he had obstructed justice, and because he had waited until the eve of trial to plead guilty. The Second Circuit found that defendant engaged in sufficient objectionable post-indictment conduct to justify the denial of the reduction. For example, the court found that defendant’s carefully worded plea allocution “muted the gravity of his complicity in the securities fraud offenses.” When asked if he thought that his fraudulent conduct would have affected a prudent investor’s decision to buy or sell his company’s stock, his response was, “I could see the possibility where it could.” Moreover, the court found it telling that defendant objected to the PSR on various grounds related to evidence tampering and fraudulent transactions, but then withdrew those objection during a Fatico hearing, implicitly acknowledging that his objections lacked merit. U.S. v. Kumar, 617 F.3d 612 (2d Cir. 2010).
2nd Circuit denies acceptance reduction where defendant denied one of overt acts of conspiracy. (488) Defendant pled guilty to conspiracy to distribute ecstasy pills. The indictment specified two overt acts: (1) defendant’s sale of about 1000 pills; and (2) his delivery of about 800 pills. At his allocution, defendant admitted to the conspiracy and to the delivery of the 800 pills, but denied selling the 1,000 pills. The Second Circuit affirmed the denial of an acceptance of responsibility reduction based on defendant’s refusal to allocate to the 1000 pill transaction. The transaction was an overt act within the conspiracy to which defendant pled guilty. A district court commits no error in requiring allocution to the full scope of the conspiracy that formed the basis for the indictment to which the defendant pled guilty. U.S. v. Ubiera, 486 F.3d 71 (2d Cir. 2007).
2nd Circuit denies acceptance reduction to defendant who claimed crime was justified. (488) Defendant challenged the district court’s denial of a two-level decrease for acceptance of responsibility. In denying the reduction, the district court stated that defendant “consistently refused to accept full responsibility for his criminal activity and he continues to urge that what he did was justified.” The Second Circuit affirmed, since a review of the record did not show that the court’s determination was unfounded. U.S. v. Williams, 389 F.3d 402 (2nd Cir. 2004).
2nd Circuit says 11th hour plea was not sufficiently timely for additional acceptance reduction. (488) The district court granted defendant a two-point acceptance of responsibility reduction, but refused to grant him an additional one-level reduction under § 3E1.1(b) (1) because his acceptance was not timely. The Second Circuit agreed. Defendant entered his plea barely one week before his trial was to begin. His belated plea was not sufficiently timely to “permit] the government to avoid preparing for trial and … the court to allocate its resources efficiently.” Moreover, the district court detected little of the sincere remorse that is required even for the basic two-level reduction and granted that reduction grudgingly, stating “this is as close as I have ever come to denying it.” U.S. v. Yu, 285 F.3d 192 (2d Cir. 2002).
2nd Circuit rejects acceptance reduction where defendant minimized drug quantity. (488) Defendant admitted responsibility for selling marijuana to DeLuca on five to seven occasions between November and December 1997. He insisted, however, that each sale consisted of, at most, one to two pounds of drugs. Defendant also admitted responsibility for the single shipment of marijuana to Jean-Baptiste for which the district court ultimately held him responsible. In light of the district court’s findings regarding drug quantity, the Second Circuit held that the district court’s determination that defendant had not clearly demonstrated acceptance of responsibility for his offense was not “without foundation” and should not be disturbed. U.S. v. McLean, 287 F.3d 127 (2d Cir. 2002).
2nd Circuit affirms denial of acceptance reduction where defendant denied blame for offense. (488) Defendant challenged the district court’s refusal to grant him a reduction for acceptance of responsibility. The Second Circuit found no error. The record did not compel, or even support, the conclusion that the district court’s refusal to grant the acceptance credit was based on an impermissible ground. The district court made no mention of defendant’s refusal to plead guilty to the firearms charge or to defendant’s denial of using a firearm in the commission of his crime. Instead, the court looked to the PSR. The PSR recommended against the reduction because defendant’s statement “reflected a lack of acknowledgement that he has committed a crime.” Defendant told the probation department that he felt the offense had nothing to do with him, that he was supposed to take the blame for the offense because he was paid to do the job, that he was merely a “middle person,” and did not understand how the jury could have convicted him. The Second Circuit found that these facts were sufficient to support denial of the acceptance reduction. U.S. v. Zhuang, 270 F.3d 107 (2d Cir. 2001).
2nd Circuit denies acceptance reduction to defendant who pled guilty late and was evasive. (488) Defendant, a former New York City police officer, was convicted of various civil rights violations for a vicious sexual assault on a black man who was in police custody. Notwithstanding defendant’s guilty plea, the district court refused to grant defendant an acceptance of responsibility reduction. The Second Circuit found ample evidence to support the district court’s decision. Although defendant ultimately admitted his guilt, his plea came late in the trial, thus forcing the government to present most of its extensive case against him. In addition, the court found that defendant’s statements before and after his plea evinced a lack of remorse and a failure to acknowledge fully the wrongfulness of his conduct. Both before and during the trial, defendant had advanced the theory that the victim has sustained his injuries during a consensual sexual encounter with another man. Moreover, the court found defendant’s statements to the probation office about his conduct were “evasive and even inaccurate in some respects and show[ed] an overall reluctance to face up to the extent of his crime.” U.S. v. Volpe, 224 F.3d 72 (2d Cir. 2000).
2nd Circuit denies reduction where defendant denied criminal intent and attempted to withdraw plea. (488) Defendant, a commodities broker at a securities broker-dealer, helped an investment advisor perpetrate a fraud by sending the advisor’s clients false information about the clients’ account balances. The Second Circuit affirmed the denial of an acceptance of responsibility reduction because defendant continued to deny a criminal intent. Although she pled guilty and initially admitted that she knew the audit confirmations she sent out were false, she subsequently claimed that she acted without criminal intent and merely failed to exercise due diligence in reviewing the audit confirmations. A defendant who expresses regret for the results of criminal conduct without admitting criminal intent does not accept responsibility. In addition, defendant moved to withdraw her guilty plea because she anticipated receiving a more severe sentence than she expected when she signed the agreement. The district court properly found that this reason for withdrawing the plea demonstrated a lack of sincere remorse. U.S. v. Goodman, 165 F.3d 169 (2d Cir. 1999).
2nd Circuit denies third-level acceptance credit where plea was entered a day before jury selection. (488) Defendant argued that he should have received the third-level acceptance of responsibility reduction under § 3E1.1(b)(2). The Second Circuit held that defendant’s guilty plea, entered the day before jury selection, was not sufficiently timely to merit the § 3E1.1(b)(2) reduction. This reduction is only available to defendants who timely notify authorities of their intention to plead guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently. In light of defendant’s tardy plea and the resources spent by the government in preparing for trial, the district court was well within its discretion in denying the reduction. U.S. v. Hargrett, 156 F.3d 447 (2d Cir. 1998).
2nd Circuit rules conditional plea offer after suppression hearing did not warrant § 3E1.1(b) reduction. (488) Defendant was arrested in possession of cocaine. She unsuccessfully moved to suppress the cocaine. She then proposed a conditional guilty plea that would have preserved her right to appeal the district court’s denial of her motion to suppress. When the government rejected her offer, she agreed to a stipulated facts bench trial. The district court granted her a two-level acceptance of responsibility reduction. She claimed that she deserved an additional one-level reduction under § 3E1.1(b)(2) for timely notifying authorities of her intention to enter a guilty plea. The Second Circuit held that her conditional guilty plea offer was not sufficiently timely to warrant the § 3E1.1(b) reduction. The suppression hearing was the main proceeding in the case. though the notice was given late in absolute terms, it was still early enough in the game to be of substantial benefit to both the prosecution and the government. It forestalled the need to make final preparations for a full-scale drug trial, and eliminated the need to prepare to try a tax charge against defendants. U.S. v. Dethlefs, 123 F.3d 39 (1st Cir. 1997).
2nd Circuit defers to sentencing judge’s evaluation of defendant’s contrition, credibility and candor. (488) Defendant argued that the court was required to grant him an acceptance of responsibility reduction because he had fully acknowledged his own participation in a car theft conspiracy, and any obstruction of justice he committed was entirely unrelated to his own case. The Second Circuit refused to disturb the district court’s assessment of defendant’s contrition, credibility and candor. The sentencing judge’s unique position entitles him to “great deference” on review. U.S. v. Fernandez, 127 F.3d 277 (2d Cir. 1997).
2nd Circuit denies acceptance of responsibility reduction despite admission of crime. (488) Defendant assaulted another prison inmate with a table leg. He admitted the attack both at trial and to an FBI agent investigating the matter. However, he asserted that he committed the assault because the other inmate had on more than one occasion sprayed defendant’s cell with chemicals, causing defendant to become sick. The other inmate denied this. The district court found that defendant’s admission of the attack did not constitute acceptance of responsibility. A defendant must accept that the conduct was wrong and that he now must be punished for it. The Second Circuit held that the district court’s view was consistent with the law of the circuit. U.S. v. Hernandez-Fundora, 58 F.3d 802 (2d Cir. 1995).
2nd Circuit finds obstruction for failing to report to pretrial services. (488) While on release awaiting sentencing, defendant tested positive for drugs. She also attempted to smuggle into the pretrial services offices an uncontaminated urine sample to substitute for her own. After this incident, defendant ceased reporting to pretrial services, moved from her listed address, and could not be found. She was arrested four months later. The 2nd Circuit upheld an obstruction of justice enhancement based on defendant’s four-month failure to report to pretrial services. Defendant testified that she stopped reporting because she was afraid that her release would be revoked. This explanation supported, rather than undermined, the conclusion that defendant willfully obstructed justice. The court’s decision to deny defendant an acceptance of responsibility reduction was supported by her “11th hour” decision to plead guilty, her failure to report for pretrial services, her continued drug use, and her attempt to pass off another person’s urine as her own. U.S. v. Defeo, 36 F.3d 272 (2nd Cir. 1994).
2nd Circuit upholds acceptance of responsibility reduction for defendant who gave inculpatory statement on arrest. (488) The 2nd Circuit affirmed the district court’s reduction for acceptance of responsibility to a defendant who immediately gave an inculpatory statement upon arrest. Although the government claimed that the statement minimized his role in the marijuana trafficking scheme, the judge found the statement to be a sufficient acceptance of responsibility. U.S. v. Moore, 968 F.2d 216 (2nd Cir. 1992).
2nd Circuit says defendants were not denied reduction solely because they stood trial. (488) Defendants objected to the district court’s refusal to grant them a downward adjustment for acceptance of responsibility, arguing that they were improperly denied the reduction solely because they stood trial. The 2nd Circuit disagreed. Even after conviction, one defendant continued to deny that he had known he was assisting a criminal endeavor, and the district court concluded that the other defendant failed to prove the sincerity of his acknowledgement of guilt. U.S. v. Boothe, 994 F.2d 63 (2nd Cir. 1993).
2nd Circuit denies acceptance of responsibility reduction to defendant convicted of criminal contempt for refusing to testify. (488) Defendant was convicted of criminal contempt under 18 U.S.C. section 401 for refusing to testify at the trial of a reputed mobster. He moved to dismiss the indictment on the grounds that exculpatory evidence — he acted on the advice of counsel — was withheld from the grand jury. The trial court ruled that his reasons for refusing were irrelevant. At sentencing, defendant contended that he was entitled to a reduction for acceptance of responsibility because he admitted in his statement to the probation department that he had refused to testify, and that because the trial court ruled that his reasons for refusing were irrelevant, he effectively admitted all essential elements of the crime of contempt. The 2nd Circuit affirmed the denial of the reduction. Even if the trial judge ruled that defendant’s alleged reasons for refusing to testify did not establish a defense, this did not mean that defendant accepted responsibility for his conduct. Quite to the contrary, he insisted that he was entitled to act as he did and continued to insist the same on appeal. U.S. v. Remini, 967 F.2d 754 (2nd Cir. 1992).
2nd Circuit denies reduction to defendant who attempted to accept responsibility one week before sentencing. (488) The 2nd Circuit affirmed the district court’s denial of a reduction to a defendant who attempted to demonstrate his acceptance of responsibility one week before sentencing. Prior to that time, defendant took no steps to accept responsibility or show remorse. U.S. v. Blair, 958 F.2d 26 (2nd Cir. 1992).
2nd Circuit denies acceptance of responsibility reduction to defendant who denied involvement in larger transaction. (488) Prior to sentencing, defendant acknowledged that he travelled to New York to assist in a transaction involving one kilogram of cocaine. However, he denied involvement in the 50-kilogram transaction. He argued that since proof of his involvement in the larger transaction was “not overwhelming,” his refusal to acknowledge his participation in the larger transaction should not be used to deny him a reduction for acceptance of responsibility. The 2nd Circuit found the argument frivolous, since the standard of proof at sentencing is a preponderance of the evidence, not “overwhelming.” U.S. v. Lopez, 937 F.2d 716 (2nd Cir. 1991).
2nd Circuit denies acceptance of responsibility despite defendant’s belated acknowledgement of guilt. (488) Defendant claimed he was entitled to a reduction for acceptance of responsibility for having stated, at sentencing: “Please forgive me for my participation in the transaction. . . . I will never do it again.” The 2nd Circuit found the district court was entitled to reject this “belated acknowledgement of guilt.” Defendant maintained his innocence throughout his trial, and attempted to minimize his guilt, even after his conviction. U.S. v. Pimental, 932 F.2d 1029 (2nd Cir. 1991).
2nd Circuit finds RICO defendant not entitled to acceptance of responsibility due to his denial of guilt. (488) Defendant claimed he should be resentenced because the district court erroneously declined to grant him an acceptance of responsibility adjustment. The 2nd Circuit disagreed, finding that the defendant had expressed “no contrition during the sentencing hearing,” repeatedly asserting that he never extorted any money despite the overwhelming evidence of guilt. U.S. v. Tillem, 906 F.2d 814 (2nd Cir. 1990).
2nd Circuit finds no acceptance of responsibility where guilty plea was not entered until just before jury selection. (488) Defendant argued that the district court erred in refusing to grant two point decrease for acceptance of responsibility after he pled guilty. The 2nd Circuit affirmed, holding that a guilty plea does not entitle a reduction under guideline § 3E1.1 as a matter of right. The 2nd Circuit found that defendant’s delay in pleading guilty until just before jury selection and his later denial of guilt to the probation officer supported the district court’s denial of the reduction. U.S. v. Rios, 893 F.2d 479 (2nd Cir. 1990).
3rd Circuit permits court to grant one-level acceptance of responsibility reduction. (488) The district court reduced defendant’s offense level by one because he pled guilty and avoided going to trial. However, it refused to grant the additional two levels because it found that defendant did not clearly demonstrate acceptance of responsibility for his offense. At sentencing, the court extensively discussed its disdain for defendant’s conduct, noting that he continued to claim that he was just trying to help people and believed he was acting in the best interest of his fraud victims. The Third Circuit held that the district court was well within its discretion to vary from the PSR recommendation and grant only a one-level acceptance reduction. U.S. v. Dullum, 560 F.3d 133 (3d Cir. 2009).
3rd Circuit affirms government’s refusal to move for third level reduction for remorse. (488) Prior to 2003, a district court could grant an additional one-level acceptance of responsibility reduction based on its own assessment of whether defendant’s guilty plea had saved judicial and prosecutorial resources. In 2003, § 3E1.1(b) was changed to require a government motion before a court could grant the reduction. Defendant argued that the government’s refusal to move for such a reduction here was the product of “bad faith.” The Third Circuit found § 5K1.1 jurisprudence helpful in applying § 3E1.1(b). In the § 5K1.1 context, there is no “bad faith” exception to the government motion requirement. However, as with § 5K1.1, the panel can review whether the government’s refusal to a file a § 3E1.1(b) motion was based on an unconstitutional motive such as race, religion, or gender. Here, the record did not support a finding that the government’s refusal to file a § 3E1.1(b) motion was attributable to an unconstitutional motive. The dispute here was about the character and extent of the professional services invested by the government prior to the plea. These are matters committed to the discretion of the government. U.S. v. Drennon, 516 F.3d 160 (3d Cir. 2008).
3rd Circuit upholds obstruction increase and denies acceptance reduction for attempt to feign mental illness. (488) The district court applied an obstruction of justice increase and refused to grant defendant an acceptance of responsibility reduction, finding that he had feigned mental illness to avoid trial, had admitted his plan to a confederate, and had chosen to not take his medication so as to increase his chances of being found incompetent. The Third Circuit affirmed. Allowing an obstruction enhancement based on feigned mental illness does not impinge on a defendant’s ability to not stand trial if he is mentally incompetent. While a defendant possesses a constitutional right to a competency hearing if a bona fide doubt exists as to his competency, he does not have the right to create a doubt as to his competency or to increase the chances that he will be found incompetent by feigning mental illness. Defendant’s initial attempt to accept responsibility by admitting his guilt and trying to cooperate with authorities was counteracted by his later attempt to prove that he was not responsible for his actions based on mental incompetence. U.S. v. Batista, 483 F.3d 193 (3d Cir. 2007).
3rd Circuit says statement after arrest was more exculpatory than acceptance of responsibility. (488) Defendant argued that he accepted responsibility based upon a statement he gave to investigators after he was arrested that he argued was “in all respects a complete confession.” In that statement he claimed that Farris asked him to do a favor and “give this guy a package.” Defendant admitted he delivered the package, and skimmed $100 from the money that he received for the package. He denied any knowledge of Farris’s cocaine supplier, did not admit that he committed the charged offense, and did not admit that he knew the package contained cocaine. The Third Circuit upheld the denial of the acceptance reduction, finding that his “cooperation” was more a false exculpatory statement than an acceptance of responsibility. A defendant does not earn an acceptance of responsibility reduction simply by speaking to investigators. U.S. v. Boone, 279 F.3d 163 (3d Cir. 2002).
3rd Circuit agrees that defendant did not timely notify authorities of intent to plead guilty. (488) Defendant argued that he deserved an additional one-level acceptance reduction under § 3E1.1(b)(2) because he timely notified the government of his intention to plead guilty on December 11, 1998, less than one month after the indictment was returned. The district court disagreed, finding that defendant’s actions were equivocal and tactical, and that he was maneuvering to obtain the benefit of the plea agreement without having to implicate his son during the allocution. The Third Circuit agreed that defendant failed to timely notify authorities of his intention to plead guilty. Although defendant sent a letter to the court on December 16, 1998 informing the court of his willingness to plead guilty, he made no timely effort to do so. After sending the letter, he continued to send signals suggesting that he intended to put the government to its burden of proof. For example, on December 29, 1998, defendant served a four-page discovery demand on the government. He also forwarded to the district court objections to the government’s proposed jury charge and included a jury charge of his own. On January 4, 1999, the day before trial, defendant wavered before pleading guilty. The district court also did not err in failing to consider, sua sponte, whether defendant was entitled to the reduction under § 3E1.1(b)(1) for timely providing complete information to the government concerning his role in the offense. U.S. v. Hernandez, 218 F.3d 272 (3d Cir. 2000).
3rd Circuit says defendant who goes to trial can still provide timely, complete information. (488) The district court granted defendant a two-level acceptance of responsibility reduction but refused to grant him the additional one-level reduction under § 3E1.1(b)(2) because the government was required to prepare for trial. The Third Circuit held that even though defendant went to trial, the district court should have considered whether defendant timely provided complete information to the government under § 3E1.1(b)(1). The section requires that the defendant timely provide complete information; it does not require, either expressly or impliedly, that the defendant actually forego his trial. Permitting the government and court to conserve resources is not synonymous with the actual conservation of resources. The reduction is triggered by the defendant’s behavior, not by whether other factors out of his control prevent the acceptance of his plea. Thus, the possibility of the reduction is not foreclosed by the government’s rejection of a plea. U.S. v. Zwick, 199 F.3d 672 (3d Cir. 1999), abrogated on other grounds by Sabri v. U.S., 541 U.S. 600, 124 S.Ct. 1941 (2004).
3rd Circuit says defendant need only meet one of two requirements for additional acceptance reduction. (488) Defendant received a two-level acceptance of responsibility reduction under § 3E1.1(a). Section 3E1.1(b) provides for an additional one point reduction for certain defendants who have assisted authorities by “(1) timely providing complete information to the government concerning his own involvement in the offense; or (2) timely notifying authorities of his intention to enter a plea of guilty … “ The district court found that defendant did not qualify for the one-level reduction because his decision to plead guilty after the jury was selected did not constitute timely notification under § 3E1.1(b)(2). Defendant argued that the district court failed to consider whether he timely provided complete information concerning his involvement in the crime. The Third Circuit agreed that because § 3E1.1(b) is phrased in the disjunctive, the district court should have considered whether defendant met the requirements of § 3E1.1(b)(1) before denying the reduction. The record contained evidence that supported the one-level reduction. Defendant called 911, reported that he had stabbed his wife, provided directions to his home, remained on the phone until authorities arrived, and cooperated with authorities while the crime scene was investigated. U.S. v. Paster, 173 F.3d 206 (3d Cir. 1999).
3rd Circuit denies reduction where defendant continued to deny culpability. (488) Defendant perpetrated the largest charity fraud in history. He contended that he deserved an acceptance of responsibility for cooperation prior to the initiation of a criminal investigation with the bankruptcy court, because of his guilty plea, and his decision to surrender a large portion of his personal assets. The Third Circuit found defendant was not entitled to the reduction because he continued to deny factual guilt and criminal intent for his actions. In a press release announcing his decision to plead nolo contendere, defendant made a point of stating he did not admit to the government’s version of the facts. At the sentencing hearing, defendant continued to deny culpability. He also denied transferring funds from the charitable organization to his personal accounts and for-profit businesses, creating a fictitious board of directors or fabricating minutes of their meetings. Even if defendant’s plea of nolo contendere was equivalent to a guilty plea, this would not automatically entitle him to the reduction. His cooperation with the bankruptcy court might qualify as evidence of acceptance of responsibility, but the sentencing court was free to consider evidence inconsistent with acceptance of responsibility. U.S. v. Bennett, 161 F.3d 171 (3d Cir. 1998).
3rd Circuit denies additional one point reduction for acceptance of responsibility. (488) Defendant argued that he should have received a three level, rather than a two level, reduction for acceptance of responsibility. The 3rd Circuit found that defendant was not entitled to the additional reduction, since he had provided incomplete information to investigators and his plea, which came after a long period of flight, was not timely. U.S. v. Pardo, 25 F.3d 1187 (3rd Cir. 1994).
3rd Circuit denies reduction to defendant who did not admit being member of conspiracy. (488) The 3rd Circuit upheld the denial of a reduction for acceptance of responsibility to a defendant who admitted that he had “done wrong,” but nonetheless seemed to challenge the jury’s verdict. On cross-examination, he refused to state plainly that he was a member of a drug organization and denied most of the testimony at trial concerning him. The only unlawful conduct he admitted was cheating a drug dealer and selling small amounts of drugs, and he denied that those activities were linked to the drug organization. U.S. v. Price, 13 F.3d 711 (3rd Cir. 1994).
3rd Circuit denies acceptance of responsibility reduction to defendant who gave excuses for his conduct. (488) The 3rd Circuit affirmed the district court’s decision to deny defendant a reduction for acceptance of responsibility. Although defendant submitted a statement to the probation officer in which he admitted his participation in the offenses for which he was convicted, he also gave a number of excuses for his conduct. He claimed that he was addicted to drugs and only became involved in the transactions at the request of a government informant. He also denied that he was ever in the business of selling cocaine for profit. U.S. v. Salmon, 944 F.2d 1106 (3rd Cir. 1991).
4th Circuit bars government from refusing third-level reduction unless defendant waives appeal. (488) Although the PSR recommended that defendant receive a two-level reduction for acceptance of responsibility, the government refused to move for the additional one-point acceptance reduction because defendant refused to sign the plea agreement, which contained a waiver of appeal. Disagreeing with several other circuits, the Fourth Circuit held that under § 3E1.1(b), the government has discretion to refuse to move for an additional one-level reduction, but only on the basis of an interest recognized by the guideline itself – not, as with § 5K1.1, on the basis of any conceivable legitimate interest. Section 3E1.1(b) does not require a defendant to provide the prosecution with the type of assistance that might reduce the “expense and uncertainty” attendant to an appeal. Moreover, when a defendant has unconditionally pled guilty, his refusal to sign an appellate waiver has no impact on his ability to challenge his conviction or on the government’s need to anticipate such a challenge. U.S. v. Divens, 650 F.3d 343 (4th Cir. 2011).
4th Circuit denies acceptance credit despite defendant’s claim that he did not know stolen property belonged to government. (488) Defendant was convicted of charges in connection with a scheme to steal fuel from a bulk “fuel farm” run by the U.S. Army in Iraq. He argued that he deserved an acceptance of responsibility reduction, despite going to trial, because he only went to trial to contest the applicability of 18 U.S.C. § 641 to his conduct. He claimed he hoped to prevail on the question of whether knowledge of government property was an element of the offense. The Fourth Circuit upheld the denial of the reduction. There was no dispute that defendant and his companions stole fuel that belonged to the U.S., and § 641 was thus applicable to his conduct. Although the government might have had a more difficult time proving defendant’s guilt if it had been required to prove that he knew the fuel belonged to the government, this would not have made § 641 inapplicable to defendant’s conduct. Moreover, defendant strongly asserted his innocence at trial, arguing that he believed all along that the group was operating under a legitimate contract. U.S. v. Jeffery, 631 F.3d 669 (4th Cir. 2011).
4th Circuit holds that plea agreement did not obligate government to move for additional acceptance reduction. (488) Defendant’s plea agreement provided that contingent upon his payment of a $100.00 special assessment, and if he complied with certain other requirements in the plea agreement, the government would recommend a two or three-level acceptance of responsibility reduction. However, at sentencing, the government refused to recommend either reduction, claiming that defendant had provided incomplete information and had failed to pay the $100 assessment. The district court granted the two-level reduction, but refused to require the government to move for the third-level reduction. The Fourth Circuit held that government was not required to move for the acceptance of responsibility reduction. The agreement clearly stated that defendant’s failure to timely pay the special assessment relieved the government of any obligation under the plea agreement to move for the additional one-level reduction. Although defendant explained why he could not pay the assessment, he offered no legal justification for why the court should not enforce the terms of the bargain to which the parties agreed. The record also supported a finding that defendant had not cooperated fully “in the opinion of the United States.” Either basis justified the conclusion that the plea agreement did not obligate the government to move for the third-level reduction. U.S. v. Chase, 466 F.3d 310 (4th Cir. 2006).
4th Circuit says guilty plea did not entitle defendant who minimized conduct to acceptance reduction. (488) Defendant was involved in burning a cross on property next to the house where an interracial couple lived. At sentencing, the court granted a reduction for acceptance of responsibility, stating only “he gets two points off for acceptance. He pled guilty. All the elements are there. Everything is there. He gets two points off.” However, an adjustment for acceptance of responsibility does not flow automatically from a guilty plea. Moreover, defendant denied most of key facts in the offense conduct, including the first overt act of the conspiracy, altering the “NO TRESPASSING” sign to add the racially intimidating message “ESPECIALLY NIGGERS.” He also denied approaching the victim with a gun and threatening him, denied any involvement in constructing the wooden cross, and denied being in possession of a firearm when police contacted him at the scene. Defendant minimized his role in the offense and attempted to explain away his behavior, blaming the victim for his conduct. The Fourth Circuit held that the district court erred in granting defendant the acceptance reduction. U.S. v. May, 359 F.3d 683 (4th Cir. 2004).
4th Circuit denies 3-level reduction where defendant pled only after motions. (488) Defendant was arrested on drug charges. After his various motions to suppress evidence were denied August 8, defendant immediately entered into plea negotiations. He pled guilty August 17. The district court granted him a two-level reduction for acceptance of responsibility under § 3E1.1, but denied him the additional one-level reduction because he did not timely provide the government with complete information concerning his involvement in the offense. Defendant argued that he was improperly penalized for exercising his constitutional rights. The Fourth Circuit upheld the denial of the reduction. Defendant was not punished for asserting his rights in the motions to suppress. He was merely denied the additional benefit given to others who volunteer information about their conduct in a more timely manner. The denial of the reduction simply reflected the district court’s conclusion that defendant, by waiting until only three weeks before trial to provide information, failed to assist authorities in the investigation or prosecution of his own misconduct. U.S. v. Lancaster, 112 F.3d 156 (4th Cir. 1997).
4th Circuit denies reduction where affirmative defense was intended to minimize culpability. (488) Defendant was convicted of possessing a weapon in prison. At trial, he conceded that he possessed the knife, but said he obtained it only after three unknown inmates attacked him in one of the dormitories. According to defendant, the attackers dropped the knife and fled because guards were approaching. Defendant claimed he picked up the knife to protect himself because he was afraid his attackers would return. The Fourth Circuit approved the denial of an acceptance of responsibility reduction. The district court understood that defendant could still obtain the reduction after going to trial as long as his purpose was to preserve issues unrelated to factual guilt. The court believed that defendant’s affirmative defense was meritless and his attempt to minimize his culpability was not an acceptance of responsibility. U.S. v. Holt, 79 F.3d 14 (4th Cir. 1996).
4th Circuit upholds finding that defendant’s acceptance of responsibility was not timely. (488) The district court found that defendant had accepted responsibility, but denied him a § 3E1.1 reduction because the acceptance was not timely. The 4th Circuit found no clear error. Note 1(h) to § 3E1.1 states that the court may consider the defendant’s timeliness in manifesting acceptance of responsibility. The district court has substantial discretion on the issue of timeliness. The judge here took great pains in arriving at its decision that defendant was not entitled to the reduction. U.S. v. Jones, 31 F.3d 1304 (4th Cir. 1994).
4th Circuit affirms denial of reduction where defendant was dishonest about his conduct. (488) The 4th Circuit affirmed the district court’s finding that defendant repeatedly lied to and withheld information from authorities concerning his prior conduct, and thus not deserving of a reduction for acceptance of responsibility. U.S. v. Falesbork, 5 F.3d 715 (4th Cir. 1993).
4th Circuit rules that failure to receive trial transcript did not affect acceptance of responsibility reduction. (488) Defendant argued that the denial of his request for a trial transcript prevented him from using his trial testimony to demonstrate his acceptance of responsibility. The 4th Circuit found no error since no prejudice was identified. Defendant’s position was essentially, “I was convicted so I must have been wrong.” In light of this, it was impossible to see how production of the transcript would have added anything to the factual inquiry of whether the defendant acknowledged his guilt and expressed remorse. U.S. v. Schallom, 998 F.2d 196 (4th Cir. 1993).
4th Circuit denies reduction to defendant who denied knowing sewage would flow into boat basin. (488) Defendant was convicted of environmental offenses for dumping raw sewage into a storm grate. The 4th Circuit upheld the denial of a reduction for acceptance of responsibility. Although defendant admitted dumping sewage into the storm grate, he challenged the finding that the sewage flowed into a nearby boat basin from the grate and denied that he personally knew the sewage would flow into the boat basin. U.S. v. Strandquist, 993 F.2d 395 (4th Cir. 1993).
4th Circuit says period prior to consultation with attorney may be considered for acceptance of responsibility purposes. (488) Without the benefit of counsel, defendant entered into a written plea agreement admitting his manufacture of marijuana. Several months later he was indicted and counsel was appointed to represent him. He then pled guilty pursuant to the plea agreement. The district court denied him a reduction for acceptance of responsibility because he continued to use marijuana for about five months after entering into his plea agreement. The 4th Circuit affirmed, rejecting defendant’s claim that the period prior to consultation with an attorney may not be considered for acceptance of responsibility purposes. Defendant did not need a lawyer to tell him that the use of marijuana was illegal. U.S. v. Underwood, 970 F.2d 1336 (4th Cir. 1992).
4th Circuit rejects acceptance of responsibility reduction for defendant who denied involvement with firearms. (488) The 4th Circuit found no error in the district court’s denial of a reduction for acceptance of responsibility. The district court found that defendant had demonstrated no remorse and that, despite evidence to the contrary, he denied having anything to do with firearms involved in the criminal enterprise. U.S. v. Johnson, 943 F.2d 383 (4th Cir. 1991).
4th Circuit holds that acceptance of responsibility may not require showing of remorse. (488) Defendant pled guilty to assault on a federal officer and use of a firearm during a crime of violence when he fired a weapon at U.S. marshalls who were attempting to return him to the mental hospital in which he was confined. The District Court denied his request for an acceptance of responsibility adjustment, finding that due to his mental illness he could not show remorse for what he had done, and without remorse he could not take the necessary steps toward rehabilitation. The 4th Circuit found this to be error, stating that rehabilitation is not a factor in the consideration of acceptance of responsibility. Thus, the case was remanded for a determination of whether the defendant would be entitled to the two level reduction. U.S. v. Braxton, 903 F.2d 292 (4th Cir. 1990), reversed on other grounds, Braxton v. U.S., 500 U.S. 344, 111 S.Ct. 1854 (1991).
4th Circuit rejects reduction for defendant who was late in accepting responsibility. (488) Defendant contended that the district court erred in ruling that his statement accepting responsibility for his crime came too late to grant him a reduction. The 4th Circuit affirmed, since timeliness of a defendant’s conduct in accepting responsibility is a proper consideration. Defendant did not attempt to accept responsibility until the sentencing hearing. Moreover, after an earlier aborted sentencing hearing, defendant left the state hospital without authorization, an arrest warrant had to be issued, and defendant was subsequently arrested. U.S. v. Curtis, 934 F.2d 553 (4th Cir. 1991).
4th Circuit reverses acceptance of responsibility reduction for defendants who simply accepted jury verdict. (488) Defendants were convicted of cultivating marijuana in a national forest. At trial they contended that they were hunting in the forest. The 4th Circuit reversed the district court’s reduction for acceptance of responsibility, finding defendants’ acceptance of the jury verdict to be insufficient. Defendants did not accept responsibility for their criminal conduct, but contined to insist that they were only in the woods to hunt. U.S. v. Haselden, 925 F.2d 1458 (4th Cir. 1991).
4th Circuit finds that defendant who objected to facts in the plea agreement did not accept responsibility. (488) Defendant did not plead guilty until after his wife was convicted of related charges and his own trial was fast approaching. Defendant objected to statements in the government’s proposed statement of facts, which was incorporated into the plea agreement, changing the statements to indicate merely that a witness would testify to those facts. He also struck the statement that he agreed with the statement of facts. In addition, he failed to cooperate with the government. On these facts, the 4th Circuit found a sufficient basis for the district court’s determination that defendant had failed to accept responsibility for his conduct. U.S. v. Apple, 915 F.2d 899 (4th Cir. 1990).
4th Circuit rules that acceptance of responsibility four days before sentencing, came too late. (488) The defendant claimed entitlement to a reduction for acceptance of responsibility based on an admission of responsibility executed by him four days before his sentencing hearing. The 4th Circuit rejected the argument, noting that the defendant had the burden of establishing by a preponderance of the evidence that he “clearly demonstrated recognition and affirmative acceptance of personal responsibility for his criminal conduct.” Here the defendant’s acknowledgement came after a jury trial in which factual guilt was the primary issue and after preparation of his presentence report. The court ruled that the district court’s denial of a two step reduction for acceptance of responsibility was not clearly erroneous. U.S. v. Martinez, 901 F.2d 374 (4th Cir. 1990).
5th Circuit finds no plain error in refusal to move for acceptance reduction based on failure to waive right to appeal. (488) The government declined to move for a one-level acceptance of responsibility reduction under § 3E1.1(b) because defendant refused to waive his right to appeal. The government’s decision was consistent with the law in the Fifth Circuit at the time. However, after sentencing, and while defendant’s appeal was pending, the Sentencing Commission amended the commentary to § 3E1.1(b), which now instructs prosecutors not to withhold such motions on the basis of a defendant’s failure to waive his appellate rights. The Fifth Circuit upheld the sentence, ruling that even if the amendment applied to this appeal, there was no plain error. Defendant’s substantial rights were not affected. He could not show a reasonable probability that, but for the error, he would have received a lesser sentence. The panel rejected the approach in U.S. v. Godin, 522 F.3d 133 (1st Cir. 2008), which remanded in light of a post-sentencing amendment because the existence of the amendment might plausibly affect the district court’s choice of sentence, even though it did not apply to the defendant’s case. U.S. v. Garcia-Carillo, __ F.3d __ (5th Cir. Apr. 15, 2014) No. 10-11161.
5th Circuit says lack of remorse and acceptance of responsibility can be separate sentencing factors. (488) Defendant pled guilty to possession of ammunition by a convicted felon. After receiving a three-level reduction for acceptance of responsibility, defendant’s advisory guideline range was 18-24 months. The court varied upward to a 36-month sentence, citing defendant’s lack of remorse and his repeated statements to the judge that he should not have returned from Mexico, where he had been living to avoid arrest on other state charges. Defendant contended that “lack of remorse” is essentially the same as acceptance of responsibility, and the court committed procedural error when it did not first consider defendant’s lack of remorse in calculating the applicable guideline range before using that factor to justify a higher, non-Guidelines sentence. The Fifth Circuit held that lack of remorse and acceptance of responsibility can be separate factors and a court may consider each independently of the other. It was not inconsistent for the district court to have determined that defendant accepted and admitted his culpability for the crime but at the same time demonstrated a lack of remorse for his conduct. U.S. v. Douglas, 569 F.3d 523 (5th Cir. 2009).
5th Circuit says government may withhold third-level reduction for acceptance of responsibility if defendant refuses to waive appeal. (488) The district court reduced defendant’s sentence for acceptance of responsibility, but refused to grant an additional one-level reduction under § 3E1.1(b) because the government had not moved for it. The government acknowledged that the only reason it had not moved was because defendant would not agree to an appeal waiver in its proposed plea agreement. Defendant argued that this was irrational and punitive and not based on a legitimate government purpose. The Fifth Circuit held that the prosecutor could properly refuse to move for the one-level acceptance reduction based on defendant’s refusal to agree to the appeal waiver. A defendant is not entitled to a decrease under § 3E1.1(b) unless the government files a motion requesting the adjustment. A defendant’s refusal to waive his right to appeal is a proper basis for the government to decline to make such a motion, since it is rationally related to the purpose of the rule. U.S. v. Newsom, 515 F.3d 374 (5th Cir. 2008).
5th Circuit denies acceptance reduction to defendant who misrepresented facts to minimize role in offense. (488) Defendant pled guilty to conspiracy to smuggle, transport, and harbor illegal aliens. The Fifth Circuit upheld the district court’s refusal to grant him a reduction for acceptance of responsibility. Defendant made contradictory statements before the court at various stages. At one point he asserted that he was merely a smuggled alien himself who was forced to work in the kitchen to pay his transport fee, yet evidence demonstrated that he was actively involved in confining the smuggled aliens by threatening to shoot them or break their legs if they tried to escape. Additionally, he initially denied that he had ever possessed the recovered shotgun, but later he admitted to it. Although defendant pled guilty, the district court was within its discretion to conclude that he was trying to misrepresent facts to minimize his role in the offense. U.S. v. Angeles-Mendoza, 407 F.3d 742 (5th Cir. 2005).
5th Circuit denies reduction to defendants who raised entrapment defense at trial. (488) A defendant is not automatically precluded from receiving an acceptance of responsibility reduction if he exercises his right to trial. For example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt, he might be able to earn the acceptance reduction. See Note 2 to § 3E1.1. Defendants argued that they went to trial to preserve the “legal issue” of entrapment, and that they fully admitted their factual guilt. The Fifth Circuit disagreed. Defendants’ assertion of entrapment was a denial of factual guilt because it was “a denial of subjective predisposition, and consequently, of the required element of mens rea.” The district court did not err in denying both defendants a reduction under § 3E1.1(a). U.S. v. Partida, 385 F.3d 546 (5th Cir. 2004).
5th Circuit rules that motion to suppress evidence did not disqualify defendant from receiving acceptance reduction. (488) Defendant signed a confession after his arrest and admitted to possessing the firearms. Further, he stipulated to all the evidence necessary for the conviction prior to the bench trial. The guidelines allow for “rare situations” where the defendant accepts responsibility even though he precedes to trial, such as where he goes to trial to assert and preserve issues unrelated to factual guilt. The district court found that defendant did not accept responsibility since he moved to suppress “evidence that was critical to the offense itself, that is, the possession of the firearms that he was convicted.” The Fifth Circuit held that the mere fact that defendant moved to suppress the evidence against him did not disqualify him from receiving an acceptance of responsibility reduction. Although defendant surely hoped to avoid conviction when he moved to suppress the evidence, this “intent to walk” did not negate a willingness to accept responsibility under the guidelines. The guidelines create a distinction between a defendant’s denial of factual and denial of legal guilt, allowing acceptance of responsibility for the latter. To permit a reduction when a defendant challenges the constitutionality of a statute but deny it when a defendant admits his conduct and only challenges the way the police obtained the evidence is counterintuitive. U.S. v. Washington, 340 F.3d 222 (5th Cir. 2003).
5th Circuit says defendant who minimized conduct did not show “sincere contrition” for offense. (488) Defendant plead guilty to being found in the U.S. after deportation after he was found by the Border Patrol walking near a checkpoint. At sentencing, defendant admitted his offense was serious, but contended that he did not intend to come into the country to remain, but was only passing through on his way to Canada, where he wanted to study French. He claimed he had some childhood friends living in Canada, but did not explain how he could have entered Canada legally. Defendant’s statement at the sentencing hearing were more in the nature of an attempt to mitigate his conduct than a sincere expression of remorse, and fell short of showing “sincere contrition” for his offense. Moreover, defendant’s refusal to talk with the probation officer called his sincerity into question. Thus, the Fifth Circuit held that the district court did not clearly err in declining to award defendant an acceptance of responsibility reduction. U.S. v. Medina-Anicacio, 325 F.3d 638 (5th Cir. 2003).
5th Circuit says court improperly denied additional acceptance reduction based on rescheduling of sentencing hearing. (488) The district court granted defendant a two-level acceptance of responsibility reduction, but denied the additional one level reduction for timely acceptance on the grounds that the sentencing hearing was rescheduled multiple times at defendant’s request and that he was not prompt in providing the probation office with a statement of acceptance of guilt. The Fifth Circuit held that the district court erred in denying the reduction. “[T]he timeliness required for the defendant to be entitled to the extra 1-level decrease applies specifically to the governmental efficiency to be realized in two – but only two – discrete areas: 1) the prosecution’s not having to prepare for trial, and 2) the court’s ability to manage its own calendar and docket, without taking the defendant’s trial into consideration.” U.S. v. Tello, 9 F.3d 1119 (5th Cir. 1993). The timeliness requirement in § 3E1.1(b)(2) “does not implicate … time efficiency for any other governmental function, including without limitation the length of time required for the probation office to conduct its presentence investigation….” U.S. v. Wheeler, 322 F.3d 823 (5th Cir. 2003).
5th Circuit remands where court’s reasoning for denying additional acceptance reduction was unclear. (488) The district court granted defendant a two-level acceptance of responsibility reduction, but refused to grant him the additional one-level reduction under § 3E1.1(b). Both parties also agreed that the case should be remanded to the district court for further explanation as to why it denied the reduction. The court may have improperly determined that by filing and pursuing a motion to suppress evidence, defendant had only reluctantly accepted responsibility and should not receive the full benefit of a three-point reduction. However, the court may instead have found that defendant strategically waited in providing assistance to the authorities or in notifying the authorities of his intent to plead guilty and, in so doing, required the government to fully prepare for trial. Because the record was not clear that the district court considered the relevant questions under subsection (b)(1) and (b)(2) in declining to grant the additional reduction, the Fifth Circuit remanded. U.S. v. Outlaw, 319 F.3d 701 (5th Cir. 2003).
5th Circuit denies acceptance reduction to defendants who minimized conduct. (488) Defendants argued that the district court erroneously adopted the PSR’s findings that they were not entitled to acceptance of responsibility reductions because they minimized their culpability for the offense. The PSR noted that one defendant had minimized the seriousness of her actions by denying that she was a smuggler and stating that she was trying to help her neighbors. The other defendant claimed that she merely “helped” her co-defendant in the smuggling activities, but that she did not have “much to do with this thing.” The Fifth Circuit found no clear error in the court’s denial of the acceptance reduction. Both defendants falsely denied some of their relevant conduct. Moreover, even if their statements were truthful, it would not have been clear error for the district court concluded that their minimization of their conduct outweighed this “significant evidence” of acceptance of responsibility. U.S. v. Cabrera, 288 F.3d 163 (5th Cir. 2002).
5th Circuit says reluctance to award two-level acceptance reduction not grounds for denying one-point reduction. (488) After their arrest, defendant and an associate gave statements confessing their involvement in a scheme to transport marijuana through Texas. At sentencing, the judge, visiting from another district, reluctantly awarded them a two-point acceptance of responsibility reduction. He was following what he believed to be a local district rule, which purportedly awards the two-level reduction in cases where the defendant moves to suppress evidence but otherwise does not challenge the facts establishing his guilt. The judge declined to award the third-level reduction because of his reluctance to award even the two-level reduction. The Fifth Circuit reversed, since a judge’s reluctance to award the two-point reduction under § 3E1.1(a) has no bearing on the independent inquiry of whether to award another level reduction under USSG § 3E1.1(b). Whether a defendant qualifies for the two-level reduction in subsection (a) is an all or nothing proposition: once the court decides that a defendant is entitled to the reduction, the only inquiries remaining under subsection (b) are (1) whether the offense level was greater than 16, and (2) whether the defendant timely provided complete information to the government or timely entered a guilty plea. Here, defendants timely provided complete information to authorities, willingly giving statements to the DEA at their first interviews, the morning after their arrest. U.S. v. Leal-Mendoza, 281 F.3d 473 (5th Cir. 2002).
5th Circuit holds that defendant did not accept responsibility for car-jacking. (488) An assailant grabbed a woman in a car and stole the car with the woman inside. She managed to escape the moving vehicle as the assailant, followed by a co-defendant in another car, fled with the victim’s car. Defendant testified that Jefferson actually committed the carjacking offense and that he only watched and drove the other car. Defendant was convicted of aiding and abetting and carjacking, in violation of 18 U.S.C. §§ 2 and 2119. He claimed that he accepted responsibility for his participation in the crime of aiding and abetting because he admitted that he witnessed the incident but did not call the police. However, he maintained that he only knew that a car was going to be stolen, he did not know that a carjacking was going to take place, and he did not commit a carjacking. Because defendant did not admit the conduct comprising the offense of carjacking, the Fifth Circuit ruled that he did not accept responsibility. U.S. v. Jefferson, 258 F.3d 405 (5th Cir. 2001).
5th Circuit says defendant who accepted responsibility only after court warning was not entitled to reduction. (488) At sentencing, defendant blamed his involvement in the drug conspiracy on another defendant. The judge repeatedly questioned defendant about his responsibility for the crime, and defendant reaffirmed that he was not guilty. The judge then advised defendant that he could not reduce his sentence unless defendant was willing to accept responsibility for his part in the crime. Defendant then admitted he arranged the meeting between a drug buyer and seller, but continued to deny participating in the transaction. In response to the judge’s repeated warning that refusal to accept responsibility would result in an extended sentence, defendant said “Well, I would take back my word if it’s a benefit for me. I would agree that I was involved with it….” The judge then granted defendant the reduction. The Fifth Circuit reversed. Even under the deferential standard that applies to a district court’s decision, defendant did not accept responsibility in the manner required by the guidelines. “A defendant cannot accept responsibility … if his acceptance is the product of repeated warnings by the judge at the sentencing hearing.” U.S. v. Brenes, 250 F.3d 290 (5th Cir. 2001).
5th Circuit rejects reduction to defendant who denied knowing drugs were in car he drove across border. (488) Customs agents arrested defendant after they discovered marijuana concealed in the Buick he was driving into the U.S. At trial, he testified that an acquaintance loaned him the car so that he could drive to the U.S. to see a doctor, denied knowing the Buick contained marijuana, but admitted that the car had a strange odor. The district court denied a reduction for acceptance of responsibility, commenting that defendant’s report of smelling an odor in the car was “very watered down” in his testimony before the jury and that the court had no doubt that defendant “was simply employed for a fee to cross the marijuana.” The Fifth Circuit affirmed the denial of the acceptance of responsibility reduction. A defendant’s refusal to acknowledge essential elements of an offense is inconsistent with acceptance of responsibility. U.S. v. Cano-Guel, 167 F.3d 900 (5th Cir. 1999).
5th Circuit denies acceptance credit where defendant accused police of altering evidence. (488) Defendant was convicted of drug charges after he was arrested transporting 50 pounds of marijuana. The Fifth Circuit approved denying a reduction for acceptance of responsibility because defendant did not even attempt to accept responsibility for his actions for a substantial period of time after his conviction. Instead, he told his probation officer that he did not know about the marijuana found in the trunk of his car, and that the police had altered the evidence to secure his conviction. U.S. v. Hare, 150 F.3d 419 (5th Cir. 1998).
5th Circuit denies one point § 3E1.1(b) reduction to defendant convicted after trial. (488) Following reversal of his convictions for conspiring to distribute marijuana, extortion and firearms charges, defendant was convicted again by a bench trial. He claimed that he deserved an additional one level acceptance of responsibility reduction because he never denied his participation in the offenses and agreed to stipulate to the evidence to avoid the time and expense of another trial. He claimed he only requested a new trial to preserve his sufficiency of the evidence claim. The Fifth Circuit held that defendant did not meet the third requirement in § 3E1.1(b) for the one level reduction. To receive the reduction, a defendant must timely assist authorities by either providing complete information to the government concerning his involvement in the offense or timely notifying authorities of his intention to plead guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently. U.S. v. Garcia, 135 F.3d 951 (5th Cir. 1998).
5th Circuit rules statement made to police after arrest was insufficient to support § 3E1.1 reduction. (488) Defendant was arrested leaving an apartment containing cocaine, drug paraphernalia and a gun. When an officer asked defendant how much “dope” was in the apartment, defendant replied “Man, you already know what’s up. Why you asking me? Why do you think I would know how much it is.” Defendant argued that this statement showed he accepted responsibility. The Fifth Circuit held that this statement made after arrest was insufficient to support a § 3E1.1 reduction. Although the statement was incriminating, it was hardly a statement of contrition. Defendant was not denied the reduction simply because he exercised his right to trial. The district court found that defendant did not make any pre-trial statements of acceptance of responsibility. This conclusion was not clearly erroneous. U.S. v. Thomas, 120 F.3d 564 (5th Cir. 1997).
5th Circuit denies § 3E1.1 reduction for minimizing role in conspiracy. (488) The Fifth Circuit upheld the denial of an acceptance of responsibility reduction since defendant attempted to trivialize and mitigate his significant role in a drug conspiracy. U.S. v. Rivas, 85 F.3d 193 (5th Cir. 1996).
5th Circuit denies additional reduction to defendant who pled guilty on morning of trial. (488) The district court granted defendant a two level, rather than a three level, acceptance of responsibility reduction because he did not enter his guilty plea until the day his case was set for trial, thereby causing the government to prepare for trial. The Fifth Circuit agreed that defendant was not entitled to the additional one point reduction. Defendant’s guilty plea must come early enough in the proceedings to preclude the government from preparing for trial and to enable the court to avoid spending unnecessary judicial resources. U.S. v. Williams, 74 F.3d 654 (5th Cir. 1996).
5th Circuit denies additional reduction based on delay between arrest and entry of guilty plea. (488) Defendant contended that he should have received an additional one point reduction for his acceptance of responsibility. The Fifth Circuit held that the delay between defendant’s arrest and his entry of a plea of guilty vitiated the additional award. U.S. v. Packer, 70 F.3d 357 (5th Cir. 1995).
5th Circuit denies § 3E1.1 reduction to defendant who denied conspiracy. (488) Defendant was involved in a drug conspiracy. The Fifth Circuit upheld the denial of a § 3E1.1 reduction, since defendant did not accept responsibility for his full involvement in the offense, denied any conspiracy, and denied any involvement with the amount of drugs involving other conspirators. U.S. v. Dean, 59 F.3d 1479 (5th Cir. 1995).
5th Circuit denies 3-level acceptance reduction where defendant agreed to plead to some of the charges. (488) Defendant was convicted at a bench trial of fraud and money laundering counts. Over the government’s objection, he received a two-level acceptance of responsibility reduction. The Fifth Circuit rejected his contention that he was entitled to an additional one-level reduction simply because he waived a jury trial and wanted to stipulate to most of the evidence. Section 3E1.1(b) states that a defendant must timely notify the government of his intention to plead guilty, not of an intention to seek a bench trial or stipulate to certain facts. The fact that defendant informed the government of his intention to plead guilty to the fraud charges did not mitigate the expenditure of resources required to prosecute the money laundering charges. U.S. v. Leonard, 61 F.3d 1181 (5th Cir. 1995).
5th Circuit upholds denial of reduction despite improper consideration of irrelevant factor. (488) The district court denied defendants a two-level acceptance of responsibility reduction based on their delay before pleading guilty and on their failure to tell the whole truth. In its written reasons for the sentence, the court also stated that defendants’ prior felony convictions supported its decision to deny the reduction. The 5th Circuit affirmed, even though defendants’ criminal history was not a proper ground for denying the reduction. The reference to the prior convictions was merely an afterthought. The two other factors, timeliness and truthfulness, independently supported the decision. Timeliness may be considered under both subsections (a) and (b) to § 3E1.1. U.S. v. Diaz, 39 F.3d 568 (5th Cir. 1994).
5th Circuit holds offer of conditional plea in counsel’s letter was not timely notification under §3E1.1(b)(2). (488) The 5th Circuit held that defendant’s offer of a conditional plea, and his ultimate acquiescence to a bench trial, was not a timely notification to the government and the court of his intent to plead guilty. Although defendant might have saved the court some time by agreeing to proceed with a bench trial, it was undisputed that defendant did not actually plead guilty. Moreover, the suppression hearing on which defendant’s plea was conditioned was the equivalent of a full trial, which required full preparation by the government and allocation of the court’s resources. U.S. v. Gonzales, 19 F.3d 982 (5th Cir. 1994).
5th Circuit rejects reduction where defendant attempted to “explain” his conduct. (488) Defendant pled guilty to knowingly receiving in the mail visual depictions of minor children engaged in sexually explicit conduct. Defendant submitted a statement explaining his conduct, in which he claimed he had never been interested in child pornography and had only ordered the tapes because he thought the company would never send them. He claimed that he wanted to catch the company in false advertising. The 5th Circuit held that defendant’s attempt to minimize or deny his involvement in the offense supported the district court’s refusal to grant a reduction for acceptance of responsibility. U.S. v. Burian, 19 F.3d 188 (5th Cir. 1994).
5th Circuit denies reduction to defendant who minimized participation and pled guilty on eve of trial. (488) The 5th Circuit upheld the denial of an acceptance of responsibility reduction because defendant did not demonstrate “sincere contrition” regarding the full extent of his criminal conduct. Instead, he minimized his participation in the offense, blamed others for his criminal activity, and resisted efforts to investigate his financial affairs. Moreover, defendant did not agree to plead guilty until the eve of trial, thereby putting the government to much effort and expense preparing for trial. U.S. v. Wilder, 15 F.3d 1292 (5th Cir. 1994).
5th Circuit denies reduction despite acceptance of responsibility for some acts. (488) Although defendant accepted responsibility for some acts, he did not demonstrate “sincere contrition” for the full extent of his criminal conduct. Instead, he minimized his participation in the conspiracy even after he was found guilty and refused to discuss information contained in the drug ledgers seized from his home. The 5th Circuit found no error in denying him a reduction for acceptance of responsibility. U.S. v. Thomas, 12 F.3d 1350 (5th Cir. 1994).
5th Circuit says extra level for acceptance may not be denied based on obstruction. (488) The 5th Circuit announced a tripartite test for determining whether a defendant is entitled to the an additional one-level reduction for acceptance of responsibility under section 3E1.1(b): (a) the defendant must qualify for the basic two-level reduction; (b) the offense level must be 16 or more; and (c) defendant must assist authorities by timely furnishing information about the defendant’s own involvement (subsection (b)(1)) or timely notify authorities that he will plead guilty (subsection (b)(2)). The timeliness in (b)(2) relates to increasing government efficiency in only two areas: the prosecution’s trial preparation, and the court’s ability to manage its calendar. The one point reduction may not be denied based on defendant’s obstruction of justice where, as here, the district court expressly elected not to deny the basic subsection (a) reduction. U.S. v. Tello, 9 F.3d 1119 (5th Cir. 1993).
5th Circuit holds that defendant should have received additional reduction for acceptance of responsibility. (488) Defendant’s case proceeded on “an extremely fast track.” He was arraigned two weeks after being charged, a tentative plea agreement was reached shortly thereafter, and less than a month after arraignment, defendant notified the government of his intent to plead guilty. The 5th Circuit held that defendant should have received an additional one level reduction for acceptance of responsibility under section 3E1.1(b)(2). The record was replete with facts showing that defendant timely notified authorities of his intention to plead guilty. He actually pled guilty less than a month after arraignment and less than six weeks after he was charged. The fact that trial was tentatively scheduled for several days after he actually pled guilty did not make him untimely. There was no suggestion that the government had in fact prepared for the scheduled trial. U.S. v. Mills, 9 F.3d 1132 (5th Cir. 1993).
5th Circuit upholds denial of reduction where defendant continued to deny fraudulent intent. (488) The 5th Circuit upheld the denial of a reduction for acceptance of responsibility to a defendant convicted of several counts of mail and wire fraud. The extent of his acceptance of responsibility appeared in a short note to the probation officer in which he wrote “I made a mistake for which I am very sorry.” He presented no additional support for his argument. His continuing assertion of lack of intent suggested that he had not fully accepted responsibility for his actions. U.S. v. Robichaux, 995 F.2d 565 (5th Cir. 1993).
5th Circuit denies acceptance of responsibility for defendant who stood trial after admitting crimes. (488) Though defendant admitted his involvement in drug trafficking to investigating officers, he later stood trial and vigorously sought acquittal. After conviction, he again acknowledged his responsibility. In this setting, the 5th Circuit found no error in the district court’s denial of an adjustment for acceptance of responsibility. U.S. v. Pofahl, 990 F.2d 1456 (5th Cir. 1993).
5th Circuit denies reduction where defendant denied he went to mall to direct drug transaction. (488) A police detective testified that defendant was present at the mall where cocaine was sold to an undercover agent. He described how defendant surveyed the parking lot, gave a “thumbs up” signal to an accomplice, then motioned with his head to the car where the agent was parked. The accomplice then sold cocaine to the agent. The district court rejected defendant’s testimony that he went to the mall to “pay some bills.” The 5th Circuit affirmed that defendant’s attempt to minimize or deny his involvement in the offense supported the district court’s refusal to grant a reduction for acceptance of responsibility. U.S. v. Watson, 988 F.2d 544 (5th Cir. 1993).
5th Circuit denies acceptance of responsibility reduction to defendant who minimized conduct. (488) The 5th Circuit affirmed the district court’s decision to deny defendant a reduction for acceptance of responsibility. Both the district court and the presentence report stated that although defendant cooperated with the INS after her arrest, she tended to minimize her behavior and continued to deny that a firearm was involved. U.S. v. Lara, 975 F.2d 1120 (5th Cir. 1992).
5th Circuit affirms that defendant’s refusal to admit leadership role was grounds for denying acceptance of responsibility reduction. (488) Defendant clearly admitted and accepted full responsibility for the crime of conviction, but denied he held a leadership role in the offense, suggesting instead that a co-defendant was the unofficial leader of the group. The 5th Circuit held that defendant’s denial of his leadership role in the offense was a proper ground for denying an acceptance of responsibility reduction. A defendant who is found to have had leadership role in the offense does not fully accept responsibility for purposes of section 3E1.1 if, despite his admission of all elements of the offense of conviction, he nevertheless attempts to minimize his leadership role. U.S. v. Shipley, 963 F.2d 56 (5th Cir. 1992).
5th Circuit denies acceptance of responsibility reduction despite defendant’s entrapment defense. (488) Defendants contended that the district court improperly denied them a reduction for acceptance of responsibility based upon their decision to plead the defense of entrapment. The 5th Circuit affirmed, finding defendants misinterpreted U.S. v. Fleener, 900 F.2d 914 (6th Cir. 1990). Fleener merely held that the district court did not err in granting the defendant a reduction for acceptance of responsibility even though that defendant raised an entrapment defense at trial. Thus, the decision does not entitle a defendant to the reduction, but merely permits a district court to consider it notwithstanding an entrapment defense. Here, the reduction was properly denied, because the district court noted that defendants’ attitudes at trial did not comport with the attitude of one who has accepted responsibility. U.S. v. Allibhai, 939 F.2d 244 (5th Cir. 1991).
5th Circuit denies acceptance of responsibility reduction to felon who claimed he was unaware that he could not possess firearm. (488) Defendant falsely stated on a gun purchase application that he had never been convicted of a felony punishable by more than one years’ imprisonment. Defendant plead guilty to being a felon in possession of a firearm. The 5th Circuit affirmed the district court’s denial of a reduction for acceptance of responsibility. Defendant claimed (a) he was not aware that he could not possess a weapon, (b) the firearms were for hunting, and (c) the firearms were purchased by his wife as a birthday present. The district court’s findings that these were lies was not clearly erroneous. U.S. v. Buss, 928 F.2d 150 (5th Cir. 1991).
5th Circuit refuses to require district court to articulate reasons for denial of acceptance of responsibility. (488) Defendant contended that he was entitled to a two-level reduction for acceptance of responsibility, and that the district court erred in failing to state any reasons for its denial of the reduction. The 5th Circuit affirmed the district court’s action, and refused to impose an obligation on the district court to state its reasons for the denial. Although defendant did plead guilty, the record contained sufficient evidence to support the denial. When officers asked defendant where he obtained the cocaine, he said he “found it on the ground.” The probation officer who interviewed defendant said defendant exhibited “no remorse.” Although defendant did apologize to the court, credibility determinations are “critical to the decision concerning acceptance of responsibility and protected by the clearly erroneous standard.” U.S. v. Hardeman, 933 F.2d 278 (5th Cir. 1991).
5th Circuit upholds denial of reduction for acceptance of responsibility where defendant denied involvement. (488) In a written statement to the probation officer and orally at the plea hearing, defendant denied that he had ever engaged in the manufacture of illegal drugs. Based on these facts, the 5th Circuit affirmed the denial of a two point reduction for acceptance of responsibility. U.S. v. Mueller, 902 F.2d 336 (5th Cir. 1990).
5th Circuit holds that court may look outside offense of conviction to determine acceptance of responsibility. (488) Defendant was involved in a conspiracy to purchase drugs, but pled guilty to a single count of money laundering. The 5th Circuit rejected defendant’s argument that the district court could only determine his acceptance of responsibility by examining his conduct with respect to the single money laundering count. The court found that in order to be entitled to a reduction, defendant must accept responsibility for all conduct in furtherance of the money laundering charge, including all conduct demonstrating the intent, motive and purpose underlying the money laundering. Moreover, the 5th Circuit found that requiring a defendant to accept responsibility for uncharged criminal conduct does not violate the 5th Amendment, since no increase in punishment occurs if the defendant fails to accept responsibility. Giving a defendant the possibility of a more lenient sentence does not compel self-incrimination. U.S. v. Mourning, 914 F.2d 699 (5th Cir. 1990), superseded on other grounds by guidelineas stated in U.S. v. Castano, 999 F.2d 615 (2nd Cir. 1993).
5th Circuit finds that defendant who failed to admit beating robbery victims did not accept responsibility. (488) Defendant admitted that he possessed a firearm in order to rob the victims of certain chemicals. He argued that he was entitled to a reduction for acceptance of responsibility because he “readily admitted he acted wrongfully” and “felt genuine remorse for his conduct.” The 2nd Circuit found that he did not accept responsibility, since he did not admit that he beat the victims and denied that the chemicals were for manufacturing methamphetamine. U.S. v. Pologruto, 914 F.2d 67 (5th Cir. 1990).
5th Circuit denies reduction for acceptance of responsibility to defendant who minimized his role in offense. (488) Defendant pled not guilty to the charged offense and at trial repeatedly characterized his role as the most minimal, contrary to the findings of the district court. Since the trial judge was in a unique position to evaluate defendant’s credibility, the 5th Circuit upheld the district court’s denial of a reduction for acceptance of responsibility. U.S. v. Zapata-Alvarez, 911 F.2d 1025 (5th Cir. 1990).
5th Circuit upholds denial of acceptance of responsibility reduction where defendant denied involvement in drugs. (488) A district court’s findings as to a defendant’s acceptance of responsibility will only be overturned if clearly erroneous. Moreover, the standard of review may be even more deferential than usual: “Because the trial court’s assessment of a defendant’s contrition will depend heavily on credibility assessments, the ‘clearly erroneous’ standard will nearly always sustain the judgment of the district court in this area.” In this case, the 5th Circuit affirmed the district court’s denial of a reduction for acceptance of responsibility. Although defendant pled guilty, during an interview with the probation officer, defendant maintained that he was not involved in anything illegal and that he was not involved with drugs. U.S. v. Giraldo-Lara, 919 F.2d 19 (5th Cir. 1990).
5th Circuit rules poor judgment is not equivalent to acceptance of responsibility. (488) The 5th Circuit held that the sentencing court did not clearly err in denying credit for acceptance of responsibility to a drug defendant who admitted only that he was “stupid for getting involved” and had exercised poor judgment. That the defendant had not accepted responsibility was further bolstered by the fact that he continued to contest his responsibility on appeal. U.S. v. Kane, 887 F.2d 568 (5th Cir. 1989).
5th Circuit finds that defendant who withheld funds from bankruptcy court did not accept responsibility. (488) Defendant pled guilty to making a false statement in his bankruptcy proceeding. The district court agreed with the presentence report that defendant did not come forth and indicate that he had violated the law nor did he express regret for having done so. The 5th Circuit found no clear error. U.S. v. Beard, 913 F.2d 193 (5th Cir. 1990).
5th Circuit holds no reduction for acceptance of responsibility despite post-arrest statement and failure to flee. (488) Just before arrest, defendant drove away from the approaching cars that turned out to be the police. He did not stop until the police caused him to stop. After arrest, he made a statement, but told the officer he was “just there” at the Marriott, and was “very vague.” Moreover, his statement at allocution “did not show much remorse or contrition.” The Fifth Circuit upheld the district court’s refusal to grant a reduction for acceptance of responsibility. U.S. v. Gordon, 876 F.2d 1121 (5th Cir. 1989).
6th Circuit permits government to withhold acceptance motion based on efficient allocation of resources. (488) Defendant argued that the district court erred in finding that the government’s refusal to move for a one-level acceptance reduction was arbitrary. The government argued that it did not make the § 3E1.1(b) motion because, before defendant pled guilty, he required the government to litigate his motion to suppress. This reason bore a rational relation to the legitimate government interest in the efficient allocation of government resources. Thus, the Sixth Circuit ruled that the district court did not err in finding that the decision was not arbitrary. The language of § 3E1.1(b), as amended by the PROTECT Act, explicitly recognizes a government interest both in avoiding trial preparation and in the efficient allocation of government resources. Both are legitimate government interests that justify the withholding of a § 3E1.1(b) motion. U.S. v. Collins, 683 F.3d 697 (6th Cir. 2012).
6th Circuit rejects acceptance reduction for defendants who denied intent to extort money from victim. (488) Defendants were convicted of conspiring to extort money from an actor that one of the defendants had met years earlier. The district court denied them both a reduction for acceptance of responsibility, since defendants had consistently denied an essential element of the case, their specific intent to extort, and had not really expressed any remorse or guilt, apart from being “sorry” and “embarrassed” by the situation. The Sixth Circuit found no clear error. Although defendants did admit substantial elements of the crimes charged, they did not admit the requisite mens rea. Defense counsel explicitly denied that defendants had the “intent to extort” the victim during opening statements at trial, and informed the jury that this factual contention would be the cornerstone of their defense. U.S. v. Coss, 677 F.3d 278 (6th Cir. 2012).
6th Circuit rejects blanket policy denying one-level reduction for acceptance of responsibility. (488) The district court had a written policy stating that “[a] defendant who waits until the time set for the final pretrial conference to plead guilty may not receive the one-level reduction” for acceptance of responsibility in § 3E1.1(b). The Sixth Circuit remanded, ruling that the policy usurped the government’s discretion in deciding whether to move for a third-level reduction. Such a policy was inconsistent with Congress’ intent to permit the government to decide whether to move for the additional one-level reduction under § 3E1.1(b). Here, although the government did not move for a reduction, the error was not harmless. The government’s prerogative and discretion was affected by the court’s policy, which contravened § 3E1.1(b) which states that “the Government is in the best position to determine whether the defendant has assisted authorities in a manner that avoids preparing for trial.” U.S. v. Mackety, 650 F.3d 621 (6th Cir. 2011).
6th Circuit denies acceptance reduction where defendant expressed regret but not criminal intent. (488) Defendant was convicted of destroying trees on a reservation and stealing tribal property for his own use. At trial, defendant asserted that he was acting rightfully in his role as chief of the Ontonagon Band. The district court rejected this defense, finding the property belonged to a separate tribal community. Prior to sentencing, defendant submitted a written “acceptance letter” to the probation department. In the letter, defendant admitted that he was responsible for clearing the land, expressed regret for the “trouble and difficulties” he caused, and stated that while he now “recognize[d] that this Court has determined my actions to have been wrong, I continue to believe that I acted honorable and in good faith, sincerely believing in the continued existence of the Ontonagon Band and its ancestral lands in Ontonagon.” The Sixth Circuit upheld the denial of the reduction. Merely expressing regret for the consequences of the criminal conduct, without admitting wrongful intent, does not constitute acceptance of responsibility under the Guidelines. U.S. v. Genschow, 645 F.3d 803 (6th Cir. 2011).
6th Circuit denies acceptance reduction where defendant did not admit gun possession until closing argument. (488) Defendant was convicted of being a felon in possession of a firearm and possession of powder cocaine. He argued that he should have received a reduction because he accepted responsibility for possessing a firearm, and he only challenged at trial whether he used the firearm in furtherance of drug trafficking. The Sixth Circuit held that defendant was not entitled to the acceptance reduction. Defendant did not admit possessing the gun until the closing argument at his trial. Until then, he had put the government to its burden of proving that he possessed the gun. The district court properly decided that defendant’s revelation was too late to deserve a reduction. U.S. v. Johnson, 627 F.3d 578 (6th Cir. 2010).
6th Circuit denies reduction based on letter defendant submitted after pleading guilty. (488) Defendant’s PSR recommended only “reservedly” that defendant receive an acceptance of responsibility reduction. However, at sentencing, the court denied the reduction, citing the PSR and a letter that defendant had written after his guilty plea that deflected responsibility for the crime. As a result, the court placed defendant in a higher guideline range than defendant had anticipated, and used that range to impose a within-guidelines sentence of 34 months. The Sixth Circuit upheld the district court’s denial of the acceptance reduction. At his plea hearing, defendant appeared to accept responsibility for the crime of bank fraud. but in the months between his plea and the sentencing hearing, he submitted a letter to the U.S. Probation Office that portrayed himself as a victim, not as a person who recognized that he had committed a criminal act. This claim was disingenuous because defendant had previously admitted at his plea hearing that he knew his loan applications were false when he submitted them. U.S. v. Bacon, 617 F.3d 452 (6th Cir. 2010).
6th Circuit says government may refuse one-level reduction if it believes defendant has not accepted responsibility. (488) Defendant’s PSR recommended that he receive a full three-point reduction for acceptance of responsibility. However, defendant lodged a number of objections to the description of his offense in his PSR. These statements directly contradicted defendant’s prior sworn admission in the Statement of Facts attached to his plea agreement. As a result, at sentencing, the government urged the district court not to award any acceptance reduction. However, the district court found that defendant’s Statement of Facts and guilty plea merited a two-level reduction. Defendant challenged on appeal the denial of the third-level of the acceptance reduction. The Sixth Circuit held that the prosecutor was not required to move for the additional reduction. The government is not required to base its decision solely on whether the defendant has saved government resources. The government is also entitled to refuse to move for the reduction based on its belief that the defendant has not genuinely accepted responsibility, even if the court awards a two-level reduction. U.S. v. Lapsins, 570 F.3d 758 (6th Cir. 2009).
6th Circuit denies acceptance reduction based on defendant’s failure to disclose location of stolen loot. (488) Defendant, a security guard at a mall, was the “inside man” in a robbery of armed car courier. Defendant claimed he did not know where the stolen cash and checks were, while the government argued, and the district court agreed, that defendant did know the location of the stolen loot. The Sixth Circuit upheld the denial of an acceptance of responsibility reduction based on defendant’s failure to disclose the location of the stolen cash and checks. A court may weigh heavily a defendant’s failure to assist the authorities in recovering unlawfully obtained property. It was not clear that there were any Fifth Amendment implications of requiring him to disclose the location of the stolen money because such disclosure would not increase the penalty to which he was already subject by pleading guilty to the underlying robbery. U.S. v. Bolden, 479 F.3d 455 (6th Cir. 2007).
6th Circuit upholds denial of additional acceptance reduction since there was no government motion. (488) Defendant argued that he was unjustly denied a three-level reduction for acceptance of responsibility because (1) he timely pled guilty, (2) the U.S. waived its ability not to move for the reduction because it did not object to the PSR, which indicated that defendant would receive the reduction, and (3) the U.S. improperly breached an oral agreement during plea negotiations that it would move for the extra reduction. The Sixth Circuit found that it was not improper for the court to grant only a two-level reduction, rather than a three-level reduction under § 3E1.1(b). First, the government never moved for the third-level reduction, as required by the 2003 version of § 3E1.1(b). Even after Booker, a district court is constrained in awarding a § 3E1.1(b) reduction absent a motion by the government. Moreover, even in the absence of the motion requirement, defendant would not have met his burden of proving a reduction was appropriate. He did not argue that he gave notice of his intention to plead early enough in the process for the government to avoid preparing for trial. The government showed that it had called in several witnesses and prepared them for trial, before defendant pled. Also, even if it would have been a better practice for the government to notify the defendant that it was not planning to move for the third-level acceptance reduction, as suggested in the PSR, the government could not be penalized for failing to do so. The PSR had no authority to confer a right that was then allegedly taken away. Finally, defendant presented insufficient evidence to base its claim of a breach of the plea agreement. U.S. v. Smith, 429 F.3d 620 (6th Cir. 2005).
6th Circuit says defendant who pled guilty after second superseding indictment did not earn additional acceptance reduction. (488) Defendant argued that he should have received a three-level acceptance of responsibility reduction, rather than the two-level reduction he did receive, because he informed the U.S. in a timely fashion of his intent to plea guilty. The Sixth Circuit disagreed. Defendant indicated his intent to plead guilty only after the U.S. expended considerable resources to investigate his role in the large-scale fraud conspiracy. Defendant’s refusal to accept responsibility and his demand for a trial caused an extensive investigation that not only required the issuance of a first superseding indictment, but also a second superseding indictment. Defendant’s belated acceptance of responsibility caused the government’s investigation to continue, forced the expenditure of an “incredible” amount of resources, and did not “spare” the government any work. U.S. v. Nelson, 356 F.3d 719 (6th Cir. 2004).
6th Circuit says defendant need not accept responsibility for offense that was improperly joined. (488) Defendant was convicted of one count of causing another person to make false statements to a licensed firearms dealer and one count of possession of cocaine base. Defendant admitted his involvement in purchasing one handgun, but denied possessing crack cocaine and denied his responsibility for the other handgun purchased at the same time. Normally, defendant’s denial of the crack cocaine charge alone would make him ineligible for the acceptance reduction. However, this was not the case since the counts of conviction were improperly joined. Defendant should not be held to a higher standard than he would have been had the two crimes been properly severed. Because the joint trial of the two offenses was improper, the Sixth Circuit found that defendant was not obliged to accept responsibility for both offenses in order to qualify for the adjustment. Nevertheless, the district court did not err in denying the reduction, since defendant did not accept responsibility for either offense. The district court did not believe that defendant had accepted responsibility for the handgun offense. Instead he attempted to “parse … out” his guilt as to the handgun offense by admitting responsibility for only one of the guns, and denying responsibility for the one purchased by his cousin. Although a defendant is not required to affirmatively admit relevant conduct, a defendant who falsely denies such conduct “has acted in a manner inconsistent with acceptance of responsibility.” Note 1(a) to § 3E1.1. U.S. v. Chavis, 296 F.3d 450 (6th Cir. 2002).
6th Circuit affirms refusal to give acceptance credit despite possible erroneous basis. (488) After pleading guilty, defendant was released on bond for the express purpose of assisting law enforcement authorities to locate a female fugitive. One day after his release, law enforcement located the fugitive and found the defendant with her. In denying credit for acceptance of responsibility, the district court relied in part on defendant’s “obstruction” in failing to tell law enforcement officers where the female fugitive could be found. The Sixth Circuit suggested that this was arguably more germane to an inquiry under the substantial assistance guideline § 5K1.1. However, the panel found no clear error because the district court made detailed findings about defendant’s other failure to accept responsibility in rejecting the reduction. U.S. v. Edwards, 272 F.3d 812 (6th Cir. 2001).
6th Circuit says defendant must accept responsibility for all counts of conviction. (488) Defendant pointed out that he readily admitted to selling 3.1 grams of crack, and that the only reason he chose to let the case go to the jury was to contest the conspiracy charge. However, “a defendant must accept responsibility for all counts before he is entitled to a reduction in sentence for acceptance of responsibility.” U.S. v. Chambers, 195 F.3d 274 (6th Cir.1999). Therefore, the Sixth Circuit ruled that the district court properly refused to grant defendant the acceptance of responsibility reduction. U.S. v. Price, 258 F.3d 539 (6th Cir. 2001).
6th Circuit rules court applied wrong standard in denying additional acceptance reduction. (488) Defendant’s entitlement to the one-point acceptance of responsibility reduction depended upon whether he “timely provid[ed] complete information to the government concerning his own involvement in the offense.” USSG § 3E1.1(b)(1). Although defendant confessed at the time he was apprehended, the district court found that he did not qualify for the reduction because the confession was not done in conjunction with the plea. The Sixth Circuit held that the district court misinterpreted the language of § 3E1.1(b). Whether a timely confession is made in conjunction with a timely plea agreement is irrelevant. Instead, so long as defendant’s confession was timely and provided the government with complete information concerning his own involvement in the offense, the additional one-point reduction is required. The court also appeared to be influenced by defendant’s efforts to suppress his confession. However, a defendant’s attempt to suppress a full and timely confession will not necessarily preclude him from the additional reduction. The reduction may only be precluded if the defendant recants or casts doubt on the accuracy of the confession during the course of the suppression proceedings. U.S. v. Robertson, 260 F.3d 500 (6th Cir. 2001).
6th Circuit denies acceptance reduction to defendant who changed story and was evasive. (488) Admissions defendant made to the DEA after he was indicted and before he pled guilty amounted to about 1380 pounds of marijuana. However, in a later statement he estimated the amount to be significantly less than 1380 pounds. At an evidentiary hearing, Carboni testified that defendant had been involved in at least ten intrastate shipments involving about 4500 pounds of marijuana. Defendant testified that he was involved in only nine trips, and that the amount carried on each trip was less than 200 pounds. He also denied making statements to the DEA regarding the extent of his involvement with the marijuana conspiracy. The district court credited Carboni’s statement, and found that defendant’s equivocation regarding the amounts he carried disqualified him from an acceptance of responsibility reduction. The Sixth Circuit found no clear error. Carboni’s story of massive marijuana deliveries was consistent throughout cross-examination. He explained at length why his version of the amounts shipped was credible and defendant’s was not, using specific quantities and prices to illustrate that he could not make a profit on the drug transactions unless he shipped bulk amounts of at least 500 pounds. Defendant, in contrast, changed his story numerous times, and his answers were frequently evasive. U.S. v. Garcia, 252 F.3d 838 (6th Cir. 2001).
6th Circuit says mandate was limited to acceptance of responsibility at time of original sentencing. (488) On defendant’s initial appeal, the 6th Circuit remanded for specific factual findings to support the district court’s denial of an acceptance of responsibility reduction, as required by Rule 32(c). Upon remand, the court again denied the reduction, noting that while defendant may have accepted responsibility at the time of the resentencing, he had not accepted responsibility at the time of his original sentencing. The court cited his evasiveness, improbable explanations for his conduct and his general state of denial about the offenses at the time of his original sentencing. Defendant argued that the district court improperly refused to grant a reduction based on his post-sentencing acceptance of responsibility. The Sixth Circuit found that the district court reasonably interpreted its mandate as requiring a new sentence only if it had previously based its denial of the acceptance reduction on impermissible grounds. Because the scope of the mandate was limited to the determination of defendant’s acceptance of responsibility at the time of initial sentencing, the district court did not err in denying the acceptance reduction at resentencing. U.S. v. Cook, 238 F.3d 786 (6th Cir. 2001).
6th Circuit denies additional acceptance reduction to defendant who notified government on eve of trial. (488) The Sixth Circuit held that the district court did not err in granting defendant only a two-level acceptance of responsibility reduction rather than a three-level reduction. Defendant waited until 6 p.m. on the eve of trial to notify the government of his decision to plead guilty, requiring the government to prepare its entire case. See U.S. v. Bashara, 27 F.3d 1174 (6th Cir. 1994). U.S. v. Smith, 245 F.3d 538 (6th Cir. 2001).
6th Circuit says period following guilty plea was relevant for acceptance of responsibility purposes. (488) In 1993, the IRS interviewed defendant about his suspected involvement in the filing of false tax claims. He initially agreed to cooperate but changed his mind after consulting with his attorney during a break in the interview. Over the next three years, defendant continued to help prepare fraudulent tax returns. The district court ruled that an acceptance of responsibility reduction was inappropriate because after agents interviewed defendant and made him aware that he was under investigation, he continued to engage in criminal activity. The Sixth Circuit reversed, holding that it was the period following the entry of defendant’s guilty pleas, not the period following the 1993 IRS interview, that was relevant for acceptance of responsibility purposes. This case was distinguishable from U.S. v. Childers, 86 F.3d 562 (6th Cir. 1996), which held that the district court properly considered a defendant’s criminal offenses after his confession but before his arrest on the current charges. Unlike Childers, defendant did not accept responsibility when the IRS agents first interviewed him in 1993. Thus, his subsequent criminal conduct did not qualify as “criminal conduct that continues following an acceptance of responsibility” for purposes of evaluating the “voluntary termination or withdrawal” factor. See also U.S. v. Jeter, 191 F.3d 637 (6th Cir. 1999), abrogation on other grounds recognized by U.S. v. Webb, 335 F.3d 534 (6th Cir. 2003), (rejecting use of defendant’s pre-indictment crimes as basis for denying acceptance reduction). U.S. v. Tilford, 224 F.3d 865 (6th Cir. 2000), abrogation on other grounds recognized by U.S. v. Webb, 335 F.3d 534 (6th Cir. 2003).
6th Circuit says that defendant’s general truthfulness is not proper inquiry for acceptance reduction. (488) At the sentencing hearing, the district court characterized defendant as “simply an untruthful human,” citing multiple instances in which defendant had lied. The majority of these instances were unrelated to whether defendant had accepted responsibility. The Sixth Circuit ruled that in denying an acceptance of responsibility reduction, the district court properly considered defendant’s attempt to mislead the probation officer about the amount she embezzled, and her failure to make voluntary restitution. However, the court repeatedly referenced several other instances of defendant’s “untruthful” behavior that had no bearing on her acceptance of responsibility. Section 3E1.1 is concerned solely with whether a defendant admits or denies material conduct during her investigation, prosecution, or sentencing. Whether defendant is or is not a generally candid person is thus not a proper inquiry. Because it was unclear whether the district court’s holding was properly limited to the relevant factors, the Sixth Circuit remanded. U.S. v. Whitman, 209 F.3d 619 (6th Cir. 2000).
6th Circuit upholds finding of no acceptance of responsibility. (488) At sentencing, defendant admitted he had “some involvement” with the drug crimes at issue, but said he was not the “mastermind” behind the operation and said “I am not a drug dealer nor have I ever been a drug dealer.” The district court found that defendant had not taken full responsibility for his offense, noting that selling drugs made defendant a drug dealer. The Sixth Circuit upheld the district court’s finding that defendant had not demonstrated his acceptance of responsibility. U.S. v. Watkins, 179 F.3d 489 (6th Cir. 1999).
6th Circuit denies reduction where defendant showed no remorse, obstructed justice, and lied. (488) Defendant was convicted of a variety of offenses arising out of his scheme to “purchase” automobiles using counterfeit cashier’s checks that he had manufactured. At trial, he raised various issues, including a challenge to whether the federal counterfeit securities statute, 18 U.S.C. § 513, was applicable to him. He contended that he deserved an acceptance of responsibility reduction because he accepted his guilt from the beginning, was cooperative, and only went to trial to challenge the validity of the § 513 charge against him. The Sixth Circuit held that the court properly denied the acceptance of responsibility reduction. The court clearly recognized defendant’s right to contest the applicability of § 513 to his conduct. However, the court also found that defendant was a hardened criminal with no remorse for his conduct. After his arrest he obstructed justice by directing a cousin to destroy incriminating evidence, and then lied about it at his sentencing hearing. U.S. v. Shutters, 163 F.3d 331 (6th Cir. 1998).
6th Circuit denies acceptance of responsibility reduction despite letter of remorse. (488) Defendant claimed that a statement she submitted to the probation department indicated her remorse for her actions and warranted an acceptance of responsibility reduction. The Sixth Circuit held that the letter of remorse was insufficient to justify the reduction because she denied criminal intent. Although the letter stated that defendant was sorry for what happened and accepted responsibility for her actions, defendant steadfastly maintained in the letter that she did not intend to engage in criminal activity and did not realize that her actions were unlawful at the time. An admission of regret for the result of criminal actions without a corresponding admission of criminal intent does not constitute acceptance of responsibility under the guidelines. U.S. v. Lutz, 154 F.3d 581 (6th Cir. 1998).
6th Circuit holds defendant did not accept responsibility for bankruptcy fraud. (488) Defendant pled guilty to bankruptcy fraud for concealing his interest in several real properties. The Sixth Circuit affirmed the denial of an acceptance of responsibility reduction. Defendant contradicted himself when discussing the offense and continued to blame his actions on the bad advice of counsel. Moreover, when asked about the bankruptcy fraud charges in a state court proceeding, defendant said he did not know that he owned the property. Defendant also was not helpful to authorities in recovering the fruits of his offense. U.S. v. Guthrie, 144 F.3d 1006 (6th Cir. 1998).
6th Circuit denies acceptance credit where defendant fabricated entrapment defense. (488) Defendant was convicted of distributing cocaine base on three occasions. As part of an entrapment defense, he falsely testified on direct examination that he had never before been involved in dealing drugs. In its rebuttal, the government presented proof that directly contradicted this testimony. The Sixth Circuit affirmed the denial of an acceptance of responsibility reduction based on defendant’s fabrication of an entrapment defense, which the government successfully rebutted. U.S. v. Roper, 135 F.3d 430 (6th Cir. 1998).
6th Circuit denies credit where defendant claimed he was involved in drugs to gather information for DEA. (488) Defendant was convicted of drug offenses. The Sixth Circuit affirmed the denial of an acceptance of responsibility reduction because defendant claimed he only became involved in drug transactions at the urging of DEA agents. He claimed he was attempting to gather information that might be helpful to his brother, who was also facing legal problems. He said he accompanied the juvenile who was with him when he was arrested so that he could learn the identity of her source. He specifically denied knowledge of the drugs and money in the juvenile’s possession, notwithstanding a witness’s testimony that he observed defendant and the juvenile selling drugs. U.S. v. Clay, 117 F.3d 317 (6th Cir. 1997).
6th Circuit reverses § 3E1.1 reduction where defendant blamed offense on drug abuse. (488) Defendant was a predatory pedophile who for two decades had sexually abused and exploited more than a dozen minor females, including his first wife, his daughter, and her friends. He pled guilty to knowingly receiving child pornography through the mails. The PSR recommended against an acceptance of responsibility reduction under § 3E1.1 based on defendant’s “persistent attempts to deny and minimize his criminal conduct.” In particular, he blamed his drug abuse for his behavior in the instant offense, as well as the sexual abuse of his daughter. The district court granted a § 3E1.1 reduction, finding that defendant blamed drugs only for his sexual abuse, not the instant offense. The Sixth Circuit reversed, finding the district court had an erroneous impression of what the defendant denied. The PSR clearly stated that defendant attempted to limit his involvement in this case by blaming his behavior on drug abuse. Thus, the court’s reasons for granting the reduction were insufficient. Defendant did not carry his burden here. U.S. v. Surratt, 87 F.3d 814 (6th Cir. 1996).
6th Circuit denies § 3E1.1 reduction where defendants never admitted obscene character of materials. (488) Defendants were convicted of violating federal obscenity laws in connection with their operation of a computer bulletin board. They claimed they were entitled to an acceptance of responsibility reduction because they fully acknowledged their conduct in running the bulletin board. The Sixth Circuit held that they were not entitled to the reduction, since defendants had put the government to its burden of proof at trial, never acknowledged the character of the materials found to be obscene, and did not cease making their living through the same means. U.S. v. Thomas, 74 F.3d 701 (6th Cir. 1996).
6th Circuit denies acceptance reduction where defendant denied guilt on cross-examination. (488) Defendant, the vice president of a bank, made loans to fictitious customers and then used the money for his own use. He argued that the court erroneously denied a § 3E1.1 reduction for acceptance of responsibility because he testified on cross-examination that the money from one customer was a gift. Defendant maintained that under the pressure of cross-examination, any defendant will protest their innocence. The Sixth Circuit found no error in relying on defendant’s own testimony. U.S. v. Berridge, 74 F.3d 113 (6th Cir. 1996).
6th Circuit denies § 3E1.1 reduction where defendant made exculpatory personal statement. (488) Defendant ran a liquidation company that was initially hugely successful for its investors. However, when the company began to experience difficulties, defendant began using money from the recruitment of new investors to pay off earlier investors. The Sixth Circuit approved the denial of a § 3E1.1 reduction based on defendant’s exculpatory personal statement. Although defendant admitted to certain conduct, he constantly attempted to mischaracterize that conduct and thus minimize his responsibility. U.S. v. Wolfe, 71 F.3d 611 (6th Cir. 1995).
6th Circuit denies reduction to defendant who lied about motivation for crime. (488) For over ten years, defendant assumed false identities and used phony credentials to obtain jobs in the health care field. Defendant admitted his conduct, but never admitted that he intentionally committed fraud. Rather, he claimed that he frequently changed identities, social security numbers and employment because he feared his wife’s abusive ex-husband who had threatened him. However, defendant had used false documents to represent himself as a physician’s assistant in 1984, two years before he met his wife. The Sixth Circuit, rejecting the Ninth Circuit’s view in U.S. v. Gonzales, 16 F.3d 985 (9th Cir. 1993), held that a defendant’s lies about his motivation for committing the crime are grounds for denying an acceptance of responsibility reduction. A defendant’s statements regarding his motivation are relevant because they shed light on the sincerity of an asserted acceptance of responsibility. Where a defendant concocts a story that excuses his illegal conduct, a court may find no acceptance of responsibility. U.S. v. Greene, 71 F.3d 232 (6th Cir. 1995).
6th Circuit denies § 3E1.1 reduction where defendant never admitted offense. (488) Defendant solicited and accepted a bribe of $20,000 in exchange for testifying favorably for a defendant in a civil lawsuit. The Sixth Circuit affirmed the denial of an acceptance of responsibility reduction, since defendant never admitted engaging in the conduct comprising the offense and never admitted to acting corruptly. U.S. v. Donathan, 65 F.3d 537 (6th Cir. 1995).
6th Circuit denies reduction to defendant who claimed he intended to give pills to friends. (488) Defendant pled guilty to possessing with intent to distribute 94 Lorcet tablets, a schedule III controlled substance. The district court denied a reduction for acceptance of responsibility because at the plea hearing, defendant denied distributing the pills for profit. He claimed he used the pills himself for back pain and gave the pills to his friends and associates who also needed the pills. Moreover, defendant said he pled guilty mainly to get a reduced sentence. The Sixth Circuit approved the denial of an acceptance of responsibility reduction. Based on its credibility determination that defendant was not telling the truth about his intent to sell the pills, the district court determined that defendant did not accept full responsibility for his criminal conduct. U.S. v. Bonds, 48 F.3d 184 (6th Cir. 1995).
6th Circuit denies reduction to defendant who continued to believe he was not guilty of two counts. (488) Defendant was convicted at trial of three counts. The 6th Circuit upheld the denial of a reduction for acceptance of responsibility because defendant exercised his right to a trial, and even after conviction, continued to believed that he was not guilty under two counts. This contradicted his position that he accepted responsibility for the offenses charged. U.S. v. Vincent, 20 F.3d 229 (6th Cir. 1994).
6th Circuit denies reduction despite purported acceptance of responsibility in objections to PSR. (488) Defendant argued that he deserved a reduction under section 3E1.1 because he stated that he accepted responsibility in his objections to the presentence report. The 6th Circuit upheld the denial of the reduction. The district judge explained that he did not feel defendant deserved the reduction since he had not demonstrated sufficient remorse. The judge also stated that it is more difficult for a defendant to obtain the reduction if he puts the government through its burden of proof at trial. U.S. v. Garcia, 20 F.3d 670 (6th Cir. 1994).
6th Circuit denies reduction where defendant did not surrender after receiving medical care. (488) Defendant, who had no health insurance, was seriously injured in an accident. His friend took him to the hospital and admitted him under the friend’s name and insurance plan. Defendant was hospitalized for several weeks under his friend’s name and insurance plan. The 6th Circuit upheld the denial of a reduction for acceptance of responsibility. Defendant failed to voluntarily pay restitution to those who provided him with medical care. He did not voluntarily surrender to authorities promptly after his receipt of medical care, and did not voluntarily terminate or withdraw from the criminal conduct or take steps that might disclose the illegal activities. U.S. v. Milligan, 17 F.3d 177 (6th Cir. 1994).
6th Circuit denies three-level acceptance of responsibility reduction. (488) The 6th Circuit held that defendant was properly denied a three level reduction for acceptance of responsibility. The reduction is not automatic, but requires that the defendant assist in his investigation or prosecution by providing timely information to the government or timely notification of his intent to plead guilty. Defendant did not meet either criterion. U.S. v. Aideyan, 11 F.3d 74 (6th Cir. 1993).
6th Circuit holds defendant’s statement inadequate for acceptance of responsibility reduction. (488) In a statement furnished to the district court, defendant acknowledged that he was aware, or should have been aware, that he was given money that was the product of cocaine deals. The 6th Circuit affirmed that this statement was inadequate to justify an acceptance of responsibility reduction. Defendant did not even begin to address the scope of the charges on which he was convicted. To the extent that he did, he did not do so in good faith. There was evidence that he understood all along that he was collecting tainted money, and that he was aware of the magnitude of the drug distribution ring. He did not assist law enforcement authorities in their probe of the ring’s activities. U.S. v. Phibbs, 999 F.2d 1053 (6th Cir. 1993).
6th Circuit denies acceptance of responsibility to defendant who kept stolen jewelry. (488) Defendant was convicted of being a felon in possession of a firearm. The 6th Circuit affirmed the district court’s denial of an adjustment for acceptance of responsibility on the grounds that only $5,000 of the $8,000 worth of jewelry defendant stole was returned. Moreover, the court noted the district court’s finding that the defendant had not been truthful in describing the offense he committed using the firearm, a factor relevant in sentencing under the provision. U.S. v. Voyles, 995 F.2d 91 (6th Cir. 1993).
6th Circuit denies reduction where defendant tried to shift blame to others. (488) The 6th Circuit upheld the denial of an acceptance of responsibility reduction, in light of evidence that defendant denied his involvement in cocaine distribution throughout the lower court proceedings, and consistently tried to shift the blame to others. U.S. v. Gibson, 985 F.2d 860 (6th Cir. 1993).
6th Circuit upholds denies reduction for defendants who minimized role. (488) The 6th Circuit rejected defendants’ claim that they should have received a reduction for acceptance of responsibility based on their admissions of guilt made to the probation officer and to the district court after their convictions. The district court found that before, during, and after the trial, both defendants attempted to minimize their role in the drug conspiracy. This conclusion was reached after the court heard all the testimony at trial, the findings of the probation office, and the statements of the defendants themselves. U.S. v. Chalkias, 971 F.2d 1206 (6th Cir. 1992).
6th Circuit affirms denial of acceptance of responsibility reduction to defendant who contradicted his earlier confession. (488) The 6th Circuit affirmed the denial of an acceptance of responsibility reduction to a defendant who attempted to rob a bar. Upon his arrest, defendant confessed to police that he had entered the bar intending to rob it. However, in a two-page statement furnished to the probation office, defendant contradicted his earlier confession and maintained that he had actually entered the tavern intending to shoot someone who had sold him diluted cocaine, and that his earlier statement to police was unreliable because he was high on cocaine at the time. U.S. v. Brown, 959 F.2d 63 (6th Cir. 1992).
6th Circuit upholds denial of acceptance of responsibility reduction to defendant who made outburst in court. (488) Defendant contended that he was entitled to a reduction for acceptance of responsibility because he freely admitted to having committed the offenses charged. However, at the pretrial hearing, defendant stated to the court: “Take me out. I don’t want to be in here and hear these damn lies. The FBI needs to be all hung . . . Hope you all die and go to hell.” Defendant contended that this outburst merely expressed his frustration at being denied bond prior to trial. However, the 6th Circuit affirmed the denial of the reduction, finding the district court was in a much better position to evaluate the true meaning of defendant’s remarks. U.S. v. Clark, 957 F.2d 248 (6th Cir. 1992).
6th Circuit affirms denial of acceptance of responsibility reduction for defendant who maintained shooting was an accident. (488) Defendant was convicted of assault and wanton endangerment for shooting a woman. The 6th Circuit affirmed the district court’s denial of a reduction for acceptance of responsibility, since defendant admitted shooting the woman, but maintained that it was an accident. U.S. v. Christopher, 956 F.2d 536 (6th Cir. 1991).
6th Circuit upholds denial of acceptance of responsibility to “con man.” (488) Defendant argued that his guilty plea, his oral admission of guilt to a federal agent, and his written statement to a probation officer were grounds for an acceptance of responsibility reduction. The 6th Circuit affirmed the denial of the reduction. The district court based its findings on the fact that (a) defendant’s entire criminal history indicated no acceptance of responsibility, (b) the typewritten statement filed with the probation officer was not signed by defendant, (c) defendant did not voluntarily admit his guilt, and (d) defendant did not try to make restitution. Defendant showed no real sign of “changing his ways.” His significant criminal history indicated that he was a “con man.” Judge Nelson dissented, finding it inappropriate to both depart upward and deny defendant an acceptance of responsibility reduction based upon his criminal history. U.S. v. Osborne, 948 F.2d 210 (6th Cir. 1991), superseded on other grounds by statute as stated in U.S. v. Carr, 5 F.3d 986 (6th Cir. 1993).
6th Circuit denies acceptance of responsibility where defendant denied essential facts of guilt. (488) Defendant, an associate of a powerful politician, attempted to extort money from developers in order to obtain the politician’s approval for their rezoning bill. Defendant attempted to portray his contact with the developers as a legitimate business relationship in which he was to be a lobbyist, denied offering the politician any of the money he received from the developer, and stated that the developer, rather than he, brought up the subject of money. The 6th Circuit affirmed the district court’s denial of a reduction for acceptance of responsibility. Defendant put the government to its burden of proof and denied the essential facts of his guilt. U.S. v. Williams, 952 F.2d 1504 (6th Cir. 1991).
6th Circuit affirms denial of reduction for acceptance of responsibility due to defendant’s testimony at trial. (488) Defendant was convicted of conspiracy to distribute cocaine and intent to distribute cocaine. In early meetings with undercover agents defendant stated he was leaving the drug business. However, he continued to relay phone calls to other conspirators after that occasion. Defendant appealed denial of a two-level reduction for acceptance of responsibility, arguing he pled not guilty because he believed he had withdrawn from the conspiracy. The 6th Circuit found defendant’s testimony at trial that he was uninvolved in the drug business demonstrated that he had not recognized or affirmatively accepted responsibility for his conduct of trying to sell cocaine prior to his alleged withdrawal. The denial of reduction was affirmed. U.S. v. Williams, 894 F.2d 208 (6th Cir. 1990).
6th Circuit holds that acceptance of responsibility adjustment was properly denied to defendant who lied to probation department and eluded the authorities. (488) The 6th Circuit held that an acceptance of responsibility adjustment (§ 3E1.1) was properly denied where the defendant had lied to the probation department about where he lived and worked, carried false identification, failed to appear for his preliminary examination and intentionally eluded federal authorities, which caused the Secret Service and Marshall Service to devote substantial resources to determine his whereabouts and to secure his apprehension. It was not until he was arrested and involuntarily detained that he admitted responsibility. The lack of timeliness of his acceptance weighed against the availability of the reduction. U.S. v. Luster, 889 F.2d 1523 (6th Cir. 1989).
6th Circuit denies acceptance of responsibility where defendant said he was in crack house only to purchase drugs. (488) Defendant was arrested in the basement of a crack house. After being convicted of possession with intent to distribute crack, defendant continued to maintain that he was not involved in the operation of the crack house. Defendant contended that he had only gone to the apartment to purchase crack. Although the probation officer recommended a reduction for acceptance of responsibility based upon defendant’s admission that he had gone to the house to purchase crack, the 10th Circuit agreed with the district court that defendant’s admission did not amount to acceptance of responsibility of the charges for which defendant was convicted. Defendant did no more than admit an offense with which he was not charged and admit conduct which he could not deny. U.S. v. Head, 927 F.2d 1361 (6th Cir. 1991).
6th Circuit reverses acceptance of responsibility reduction which was based upon post-conviction letter sent to district court. (488) The 6th Circuit reversed the district court’s decision to reduce defendant’s offense level for acceptance of responsibility based on a letter which defendant sent to the district court after conviction. Defendant did not exhibit any of the factors listed in guideline § 3E1.1 which a court may consider in determining whether a defendant is entitled to such a reduction. In fact, one of the factors, timeliness of the defendant’s conduct, weighed against defendant. Moreover, nothing in the letter could be characterized as an affirmative acceptance of personal responsibility. In the letter, defendant painted herself as a victim and denied any knowledge of the crime. Her letter was not an affirmative acceptance of responsibility but a renouncement of culpability. Moreover, defendant received an enhancement for obstruction of justice, and she did not present an extraordinary case in which both adjustments were justified. U.S. v. Williams, 940 F.2d 176 (9th Cir. 1991) (en banc).
6th Circuit denies acceptance of responsibility reduction based on defendant’s letter to probation officer. (488) The 6th Circuit upheld the district court’s decision to deny defendant a reduction for acceptance of responsibility. Defendant’s letter to the probation officer stated “I myself don’t believe I’m guilty of this crime.” He further stated that he used cocaine but “was not involved in a plan to buy and sell it.” U.S. v. Hodges, 935 F.2d 766 (6th Cir. 1991).
6th Circuit finds no acceptance of responsibility by defendant who refused to admit leadership role in offense. (488) Defendant contended that he was entitled to a reduction for acceptance of responsibility because he did not fight removal from Detroit to Cleveland, he pled guilty, and he explained his role to the probation officer. The 6th Circuit rejected this argument, noting that defendant conceded in his brief that he refused to accept responsibility for any managerial or leadership role in the overall conspiracy. U.S. v. Smith, 918 F.2d 664 (6th Cir. 1990).
6th Circuit denies acceptance of responsibility reduction to defendant who failed to acknowledge role in conspiracy. (488) Defendant contended that he was entitled to a reduction for acceptance of responsibility because he admitted selling cocaine to a government informant. The 6th Circuit upheld the district court’s denial, noting that defendant failed to acknowledge or accept responsibility for his role in organizing and leading the criminal conspiracy for which he was found guilty. U.S. v. Nelson, 922 F.2d 311 (6th Cir. 1990).
6th Circuit finds that woman who violated murder-for-hire statute did not accept responsibility. (488) Defendant was convicted of violating the federal murder-for-hire statute. The 6th Circuit upheld the district court’s determination that defendant did not accept responsibility for her crime. She maintained her innocence throughout her trial. Although she stated that she did not believe that what she did was a crime, she did state that she was sorry for wanting her husband dead. However, she did not assist the government in determining whether there was an accomplice who might put her husband’s life in danger. U.S. v. Ransbottom, 914 F.2d 743 (6th Cir. 1990).
6th Circuit affirms denial of reduction for acceptance of responsibility because defendant’s contrition was “belated.” (488) Defendant was arrested after several boxes of cocaine were discovered in his truck. He claimed he had stolen the boxes from an unattended pickup truck and did not know the source of the cocaine. He also claimed at a suppression hearing that he had not consented to a search of his truck. Defendant did not express contrition until after his conviction. Accordingly, the 5th Circuit held that the district court’s denial of a reduction for acceptance of responsibility was not clearly erroneous. U.S. v. Gonzalez-Basulto, 898 F.2d 1011 (5th Cir. 1990).
7th Circuit denies acceptance reduction to defendant who gave “couched” admissions of guilt. (488) Defendant pleaded guilty to wire fraud for stealing funds that elderly individuals had invested in his three companies. The Seventh Circuit upheld the denial of an acceptance of responsibility reduction. In his written statement to the district court prior to sentencing, he made numerous coached admissions of guilt. For example, he said he “never intended to defraud or harm anyone.” He also claimed the “absolute right” to set his own “salary” and said that he took “fees” in “advance” based on expected Medicare reimbursements. At sentencing, he said “[t]here are so many facts and details that have not been adjudicated because I chose to plead guilty. I did so at the advice of physicians. Based upon what was said in here, I think perhaps I made a mistake.” He also claimed that he was not the one who asked investors for money, that the business was a success, and that his partner was the individual responsible for raising money and communicating with investors. Defendant’s expression of regret for pleading guilty and then attempting to shift the blame was not the sort of contrition that warranted an acceptance reduction. U.S. v. Dachman, 743 F.3d 254 (7th Cir. 2014).
7th Circuit denies acceptance reduction to defendant who denied injuring fraud victims. (488) Defendant was convicted of mail fraud based on a fraudulent scheme in which he mailed documents containing false information to small claims courts, hid the filings from the named defendants, and then received default judgments against the unsuspecting defendants. The probation officer and the U.S. Attorney’s Office recommended a three-level acceptance of responsibility reduction under § 3E1.1, but the district court denied the adjustment. The Seventh Circuit affirmed. Although defendant stipulated to the facts, he continuously rejected the contention that his conduct caused damage to the victims. Defendant was not “punished” for choosing to remain silent at his sentencing. Rather, the judge considered defendant’s words, his demeanor, and the statements of his victims, before determining that he was not qualified for the three-level downward adjustment. Given defendant’s history of fraudulent behavior, his lack of remorse towards his numerous victims, and the extensive details of his scheme in the record, the district court did not err in denying an acceptance of responsibility reduction. U.S. v. Seidling, 737 F.3d 1155 (7th Cir. 2013).
7th Circuit finds that defendant who pled guilty after victims testified did not accept responsibility. (488) Defendant was charged with wire fraud in connection with a Ponzi scheme she ran with her husband. Right before jury selection was scheduled to begin, defendant informed the court of her intent to plead guilty. However, when the government proffered the factual basis of her offense, defendant denied everything. The court then refused to accept her guilty plea, and proceeded to select a jury. The following day, the parties proceeded to give their opening statements, and eight victims testified against defendant. At the end of the day, the court undertook a second change of plea hearing, and this time defendant admitted to the scheme and successfully pleaded guilty. The district court declined to grant defendant an acceptance of responsibility reduction, finding that she did not accept responsibility “until the 11th hour, and that it was not based on true remorse but, rather, upon the reality that she would be convicted.” The Seventh Circuit affirmed. The district court found that defendant pleaded guilty only after the testimony of her victims made her face the reality of conviction, not because of remorse. The district court was in the best position to make this determination. U.S. v. Pilon, 734 F.3d 649 (7th Cir. 2013).
7th Circuit holds that one-level acceptance reduction is mandatory once government finds §3E1.1(b) is satisfied and makes necessary motion. (488) Defendant disappeared while on release awaiting trial. He was captured three months later, and pleaded guilty two weeks before his trial was set to begin. At sentencing, the court granted him a two-level acceptance of responsibility reduction. The government moved for an additional one-level reduction, because it was satisfied that he had given prosecutors timely notice of his intention to plead guilty. The district court denied that motion, however, citing defendant’s flight. Defendant appealed, arguing that the additional one-level reduction is mandatory once the government determines that the criteria spelled out in §3E1.1(b) are satisfied and it makes the necessary motion. The Seventh Circuit agreed, and remanded for resentencing. Obviously, once the advisory guideline range is determined, the court retains discretion to vary from the advisory range based on the factors outlined in 18 U.S.C. §3553(a). But it must begin with the right reference point from the guidelines. U.S. v. Mount, 675 F.3d 1052 (7th Cir. 2012).
7th Circuit denies acceptance reduction to defendant who put government to burden of proof at trial. (488) A jury convicted defendant of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g) (1) and 924(e). He argued that he was entitled to an acceptance of responsibility reduction because he admitted to possessing the ammunition. The Seventh Circuit disagreed. To receive the acceptance reduction, a defendant cannot minimize his conduct or partially accept responsibility. Here, defendant went to trial. This was not the “rare situation” where the defendant is entitled to an acceptance reduction in spite of the fact that he proceeded to trial. Defendant put the government to its proof, maintaining throughout the proceedings that he did not possess the gun. U.S. v. Daniels, 625 F.3d 529 (8th Cir. 2010).
7th Circuit rejects acceptance credit where defendant untruthfully minimized his participation in the conspiracy. (488) Defendant pleaded guilty to participating in a large document forgery operation that provided false green cards, driver’s licenses and social security numbers to illegal immigrants. The district court denied his request for a three level reduction for acceptance of responsibility because defendant untruthfully minimized his participation in the conspiracy and falsely denied knowing that his conduct was a crime. On appeal, the Eight Circuit affirmed, ruling that defendant made factual claims that the district court found untruthful, rather than legal argument based on admitted facts. There was no error. U.S. v. Munoz, 610 F.3d 989 (7th Cir. 2010).
7th Circuit rejects one-level acceptance reduction where defendant did not sign plea agreement until fourth day of trial. (488) Two weeks before trial, the government offered defendant a plea agreement that stipulated if the court determined at sentencing that defendant was entitled to a two-level acceptance of responsibility reduction under § 3E1.1(a), the government would recommend an additional one-level decrease under § 3E1.1(b) for defendant timely notifying authorities of his intention to plead guilty. Three days into the trial, defendant came to court with a signed copy of the plea agreement. Defendant’s PSR recommended that he receive a two-level acceptance reduction, but not the additional third point for prompt notification under § 3E1.1(b). The government did not make a motion for the reduction at sentencing. The Seventh Circuit held that the district court’s failure to require the prosecution to move for the additional one-point sentencing reduction, as required by the plea agreement, was not plain error. The additional one-point reduction applies only to defendants who plead guilty early enough that “the government may avoid preparing for trial.” Defendant, who brought the signed plea agreement in to court on the four day of trial, was too late. The reduction that was inapplicable to defendant on its face. U.S. v. Anderson, 604 F.3d 997 (7th Cir. 2010).
7th Circuit denies acceptance reduction to defendant who barely admitted guilt. (488) The district court denied defendant an acceptance of responsibility reduction, finding that he did only the minimum necessary to accept responsibility. The Seventh Circuit affirmed. Defendant barely admitted the facts necessary to support a finding of guilt in the case. The sentencing transcript and record supported the finding that he was less than candid in admitting his involvement and participation in the fraud schemes. For example, in explaining his involvement in an investment fraud scheme, he claimed that he believed he would be able to make things right, when he knew all along that none of the money given to him by the victim would be invested in CDs. He also denied the scheme was phony from the inception. For another scheme, defendant was evasive when the court asked him if he told people he had jobs for them, which was untrue. Further, while defendant complained that the sentencing judge did not permit him to address the court before the judge decided he had not earned the reduction, the court did not impose any limitation on what defendant cold say during his allocution. U.S. v. Panice, 598 F.3d 426 (7th Cir. 2010).
7th Circuit affirms government’s refusal to move for third level reduction for acceptance of responsibility. (488) Over the government’s objection, the district court granted defendant a two-level acceptance of responsibility reduction, finding that he did not take any position inconsistent with the government’s allegations and agreed to pay restitution to the victims of his sexual abuse. Defendant argued for an additional one-level level under § 3E1.1(b), but the government refused to make the motion, since it was opposed to any acceptance reduction. Defendant pled guilty to only one of ten counts, his challenge to an obstruction of justice enhancement was frivolous, he showed no remorse, and his “offer” to make restitution was simply an agreement that his $500,000 bond would be forfeited to the victims rather than the court. The Seventh Circuit held that the government acted well within its discretion in refusing to move for the reduction under § 3E1.1(b). The government’s reasons for refusing to file the motion were related to legitimate government objectives, and would have fully supported a decision to deny the two-level reduction. U.S. v. Nurek, 578 F.3d 618 (7th Cir. 2009).
7th Circuit says government motion is prerequisite for three-level acceptance reduction. (488) Defendant received a two-level reduction for acceptance of responsibility, but argued that he should have received an additional one-level reduction under § 3E1.1(b). The Seventh Circuit held that defendant was not entitled to an additional reduction because the government never made a motion for the third-level reduction. A government motion is a necessary prerequisite to a § 3E1.1 reduction. U.S. v. Sainz-Preciado, 566 F.3d 708 (7th Cir. 2009).
7th Circuit finds denials of violent conduct were properly attributed to defendant provided with interpreter. (488) Defendant operated numerous gambling parlors and provided loans to patrons and others at high rates of interest. When borrowers could not meet these inflated terms, defendant would show up with various associates and gang members to forcibly demand payment. He was convicted of extortion and fraud. The district court did not grant him a reduction for acceptance of responsibility because defendant refused to admit his use of violence in the extortion scheme. The sentencing memo filed by his counsel explicitly denied, at least three times, that defendant ever resorted to violence or threats of violence. Defendant argued that these denials were made solely by his counsel and could not fairly be attributed to him based on his inability to understand English and his limited education. The Seventh Circuit found that the court properly attributed the denials of violent conduct to defendant. Defendant had an interpreter present at every stage of the proceedings and repeatedly assured the district court that he understood what was occurring. Further, during his guilty plea hearing, defendant (through his translator) made the same protest as his counsel – that he had not threatened violence or physically harmed anyone. Finally, the district court did not err in finding that defendant’s denials of his violent conduct were false. The government presented several witnesses at sentencing who testified both to witnessing and being victims of defendant’s violence. U.S. v. Dong Jin Chen, 497 F.3d 718 (7th Cir. 2007).
7th Circuit holds defendant who initially cooperated with authorities did not merit acceptance reduction. (488) Despite proceeding to trial, defendant argued that he was entitled to sentencing credit for acceptance of responsibility because he cooperated with law enforcement after his arrest. The Seventh Circuit disagreed. Although defendant cooperated with authorities immediately after his arrest, the government later discovered that defendant had lied to them about the source of his drugs. Additionally, defendant refused to cooperate with prosecutors during a co-conspirator’s trial, declined to accept responsibility during the preparation of his PSR, and ultimately proceeded to trial and contested his guilt. U.S. v. Otero, 495 F.3d 393 (7th Cir. 2007).
7th Circuit says defendant who denied sharing child pornography was not entitled to acceptance reduction. (488) The district court concluded that defendant did not accept responsibility for his conduct when he challenged the PSR’s recommendation that he be assessed a five-level enhancement for the distribution of child pornography. Defendant argued that he challenged only whether his conduct fell under the guideline definition of distribution, not the fact that he programmed his computer to automatically exchange child pornography. However, his contention was not supported by the record. In written objections to the PSR, defendant’s attorney maintained that defendant was guilty only of downloading and possessing child pornography, not of sharing it with others. Defendant’s objection went well beyond arguing that programming a computer to automatically share files falls outside the guideline’s definition of distribution; he denied that he shared files at all. Therefore, the Seventh Circuit agreed that defendant was not entitled to an acceptance of responsibility reduction. U.S. v. Gunderson, 345 F.3d 471 (7th Cir. 2003).
7th Circuit denies acceptance reduction to defendant who gave excuse for collection of child pornography. (488) Defendant pled guilty to possessing child pornography. At a hearing where defendant sought to modify his conditions of pretrial release to allow him to live with family members, defendant testified that he was not a pedophile and did not derive sexual satisfaction from the images. He claimed that he stumbled on the images, and that they angered him and that he became drawn to them as a means to fuel his depression over his brother’s death. He explained that he felt guilty whenever he was happy because his brother was gone, and that he collected the images to make himself feel bad. At sentencing, the district court denied defendant’s request for an acceptance of responsibility reduction, concluding that defendant had minimized or rationalized his behavior to get a favorable change in the conditions of his release. The Seventh Circuit affirmed. Just because defendant admitted the elements of the offense did not mean that he was entitled to the acceptance reduction. A defendant must also honestly acknowledge the wrongfulness of their conduct and not minimize it. U.S. v. Miller, 343 F.3d 888 (7th Cir. 2003).
7th Circuit denies acceptance reduction where assault belied remorse. (488) The Seventh Circuit held that defendant was not entitled to a reduction for acceptance of responsibility because his assault on his co-defendant “belied any sense of remorse that could be attendant to an acceptance of responsibility.” U.S. v. Johnson, 227 F.3d 807, 816 (7th Cir. 2000). The reduction was properly denied. U.S. v. Mayberry, 272 F.3d 945 (7th Cir. 2001).
7th Circuit rejects third level acceptance reduction where defendant pled guilty after first day of trial. (488) At sentencing, the district court granted defendant a two-point acceptance of responsibility reduction under § 3E1.1(a) based on his guilty plea. The court refused to grant him a further one-level reduction, however, because defendant failed to enter his guilty plea prior to the pretrial conference as the court asked the defendants who wished to so plead to do, and as all of the defendants except defendant and two others actually did. The court found defendant’s decision to plead guilty after the first day of a two-day trial not only an inefficient use of its resources, but “acutely disruptive” of the court’s schedule. The Seventh Circuit refused to disturb this finding on appellate review. U.S. v. Sowemimo, 335 F.3d 567 (7th Cir. 2003).
7th Circuit rejects acceptance reduction where defendant denied mens rea. (488) Defendant was convicted of being a felon in possession of a firearm. He argued that he should have received a reduction for acceptance of responsibility because at trial he admitted possessing the gun even though he denied that he had the requisite mens rea to sustain a conviction. A legal challenge to the applicability of a statute to a defendant’s actions does not necessarily exempt the defendant from an acceptance of responsibility reduction. The Seventh Circuit held that defendant was not entitled to the acceptance reduction, because the facts did not support such a characterization. An essential factual element of guilt under § 922(g)(1) is that the defendant knowingly possess the firearm described in the indictment. By denying he knowingly possessed the gun, defendant challenged an essential factual element of the charged offense. U.S. v. Hendricks, 319 F.3d 993 (7th Cir. 2003).
7th Circuit rejects acceptance reduction for defendant who minimized criminal conduct. (488) The district court denied defendant an adjustment for acceptance of responsibility because defendant downplayed the illegality of his operation of an investment company during a presentence interview. Defendant told probation officials, for example, that he did not intend to defraud the investors and that the government had “really overblown” his conduct. He also discounted the significance of his actions by suggesting that his problems began only after he received phony checks from his investors. Defendant went on to say that had he “checked out” the investors, he would not have started writing bad checks. Defendants who minimize illegal conduct or blame others for wrongdoing have failed to accept responsibility. Thus, the Seventh Circuit found that the record supported the district court’s finding that defendant failed to accept responsibility, even after he pleaded guilty. U.S. v. Travis, 294 F.3d 837 (7th Cir. 2002).
7th Circuit rejects acceptance reduction where defendant denied that she denied wrongdoing. (488) Defendant claimed that she was entitled to an acceptance of responsibility reduction because she pled guilty, admitted her remorse, and helped government investigators trace and recover much of the fraudulently obtained funds. She argued that the sentencing court erred in denying her the adjustment based on her statement to the probation officer to the effect that “I have never done anything wrong.” She contended that all of her other alleged acts of contrition more than outweighed this isolated denial of wrongdoing. However, the district court did not deny the reduction based solely on this statement to the probation officer. Instead, the court refused to grant the reduction because she falsely denied during her sentencing hearing that she made that statement to the probation officer. The district court expressly considered the possibility that defendant’s statement might have been merely the product of stress and a poorly worded expression of confusion or remorse. He noted that if that were the case, he was prepared to grant her the reduction. However, when defendant denied having made the statement (rather than explain why she made it), the court properly found that defendant had made the statement in an attempt to manipulate the probation officer, and declined to grant defendant the reduction because she had compounded her error by lying about that statement during sentencing. The Seventh Circuit refused to second-guess the sentencing judge’s assessment of defendant’ motives. U.S. v. Frykholm, 267 F.3d 604 (7th Cir. 2001).
7th Circuit denies acceptance reduction where defendant did not plead until second day of trial. (488) Defendant claimed that the district court based its denial of an acceptance of responsibility reduction on the fact that he did not plead guilty until the second day of trial, and he contended that the delayed plea was a result of the district court’s erroneous refusal to postpone the trial to allow his new attorney to enter his appearance. The Seventh Circuit found no error. Even if the court had allowed defendant to enter his appearance the morning that the trial began, a denial of the reduction would still have been justified. Also, although lack of timeliness was certainly one of the district court’s reasons for denying the reduction, it was clear that the court also found that defendant’s admission were not trustworthy. This was an appropriate independent justification for denying the reduction. U.S. v. Carrera, 259 F.3d 818 (7th Cir. 2001).
7th Circuit holds that notice ten days before trial was not timely enough for one-point acceptance reduction. (488) On October 16, defendant’s counsel notified the government that defendant intended to plead guilty. However, defendant did not actually execute a plea agreement or enter a guilty plea until October 25, one day before his trial was scheduled to begin. The Seventh Circuit held that the district court did not err in ruling that defendant did not give notice of his intent to plead guilty sufficiently early to warrant an one-point acceptance reduction under § 3E1.1(b)(2). By the time defendant gave notice of his intent to plead guilty, ten days before trial, the government had already responded to defendant’s pre-trial motions and prepared a lengthy proffer in connection with a co-conspirator’s statements. The government also brought in witnesses, issued subpoenas, and made travel arrangements. The fact that defendant expressed his intent to plead guilty four days after the return of the second superceding indictment did not matter. There is no authority for the proposition that the timeliness of a plea should be measured in relation to the date on which the last indictment was returned. Finally, the fact that a co-defendant was awarded the reduction was irrelevant. U.S. v. Nielsen, 232 F.3d 581 (7th Cir. 2000).
7th Circuit says denial of acceptance reduction may have been colored by good-faith challenge to drug quantity. (488) Defendant pled guilty very early in the case and never challenged the charges against him. Although he raised objections to the PSR at sentencing, he never expressed outright denials of relevant conduct, and the district court found that his challenge to the evidence on his drug lab’s production capacity was not frivolous. Defendant also submitted a statement to the court acknowledging his wrongdoing and expressing regret, and at sentencing, he apologized for his conduct. The district court, however, did not believe that defendant had genuinely accepted responsibility. The Seventh Circuit remanded because the court’s finding appeared “to have been colored by [defendant’s] firm, but good faith challenge to the drug quantity calculation.” In accepting responsibility, defendant “stood firm” in challenging the district court’s drug quantity calculation. Defendant had good reason for doing so, and elsewhere in the opinion the panel rejected the district court’s calculation. On remand, the district court should re-evaluate whether defendant was entitled to a three-level reduction for acceptance of responsibility. U.S. v. Eschman, 227 F.3d 886 (7th Cir. 2000).
7th Circuit denies additional reduction to defendant who delayed pleading guilty until all options exhausted. (488) Defendant received a two-level acceptance of responsibility reduction. The Seventh Circuit found no error in denying him the additional one-level reduction. Defendant attempted to recant the written statement he gave after his arrest. He did not notify the government that he would enter a plea of guilty until two weeks before his sixth trial setting, and then only said he would pled guilty if his final pre-trial motion was denied. Because of his conduct, the government prepared for trial many times and jurors had to be summoned and ready for trial on the day he did finally plead. Thus, defendant delayed pleading guilty until all other options had been exhausted. U.S. v. Simmons, 215 F.3d 737 (7th Cir. 2000).
7th Circuit agrees that plea entered three days after original trial date was untimely. (488) Defendant received a two-level acceptance of responsibility reduction, but the district court found he waited too long to enter his guilty plea to receive the additional one-level reduction under § 3E1.1(b). The Seventh Circuit ruled that this finding was not clearly erroneous. Defendant did not enter his plea until three days after the original trial date, and one week before the rescheduled trial date. He attempted to excuse the last-minute nature of the plea by arguing that he delayed only because lawyers were trying to work out the best deal possible. However, the district court correctly rejected this line of argument. Defendant did not make intention to plead known right away: about one year passed between his arrest and his plea. He decided to plead guilty only after his original trial date had come and gone. A defendant who waits to plead guilty until the “brink of trial” is not entitled to a reduction. Finally, an untimely plea cannot be excused for purposes of § 3E1.1(b) whenever the defendant holds out for a better deal. U.S. v. Hamzat, 217 F.3d 494 (7th Cir. 2000).
7th Circuit denies reduction to defendant who perjured himself and then pled guilty during jury selection. (488) Defendant waited until jury selection was underway before pleading guilty. The Seventh Circuit held that this last-minute plea did not demonstrate acceptance of responsibility. Moreover, defendant attempted to obstruct justice by committing perjury at his suppression hearing. This was not an extraordinary situation in which a defendant who obstructed justice also accepted responsibility. After the suppression hearing, defendant declined to submit to additional interviews with the government and maintained his not guilty plea until the eleventh hour. U.S. v. Galbraith, 200 F.3d 1006 (7th Cir. 2000).
7th Circuit says cooperation three days before trial too late for additional acceptance reduction. (488) The government argued that defendant did not deserve the additional one-level reduction for timely acceptance of responsibility because he pled guilty three days before trial and it was forced to prepare a case against him. After he pled guilty, the government had to revamp its trial strategy as to the remaining defendants on short notice. Also, the timing of the plea made it necessary for the government to respond to defendant’s numerous pretrial motions. The Seventh Circuit agreed that defendant’s cooperation came too late to qualify him for an additional acceptance of responsibility reduction. Section 3E 1.1(b)(1)’s timeliness requirement must be viewed in light of the broader requirement that the defendant assist authorities in the investigation or prosecution of his own misconduct. A defendant who delays the disclosure of information to the government until shortly before a scheduled trial does not qualify for the § 3E1.1(b)(1) reduction. U.S. v. Brack, 188 F.3d 748 (7th Cir. 1999).
7th Circuit finds defendant raised diminished capacity claim to avoid responsibility. (488) Defendant requested a § 5K2.13 departure, claiming that she had a dependent personality and that her abusive husband caused her to file the false tax return involved in her offense of conviction. The district court refused to depart and refused to grant her an acceptance of responsibility reduction. The Seventh Circuit rejected defendant’s claim that the district court’s decision would preclude a finding of both diminished capacity and acceptance of responsibility. The district court simply did not believe defendant’s claim that she had a dependent personality and that her abusive husband forced her to commit the crime. Evidence showed that defendant had a strong personality, possessed an impressive business acumen, and was the main decision-maker in her family. In addition, her husband died before she committed the offense of conviction. Defendant raised the diminished capacity argument to avoid responsibility. U.S. v. Thomas, 181 F.3d 870 (7th Cir. 1999).
7th Circuit says defendant waived drug challenge to receive acceptance of responsibility reduction. (488) After police seized machine guns, firearms, silencers and cocaine from his residence, defendant pled guilty to illegally possessing those items. Defendant received a three-level reduction for acceptance of responsibility. He argued that receiving the reduction improperly required him to forgo his challenge to the district court’s adjustment for the drugs found in his home. The Seventh Circuit rejected the claim, ruling defendant chose to waive the drug challenge so that he could receive the acceptance of responsibility reduction. Even though defendant had pled guilty to possessing the cocaine, at sentencing he argued that the cocaine was not his. When the sentencing court reminded him that to receive the § 3E1.1(a) reduction a defendant must accept responsibility for all his criminal conduct, defendant chose to waive his objection. He made a conscious decision to forgo his challenge to the factual allegations concerning his involvement in drugs and opted instead for the three-point reduction. U.S. v. Wilson, 169 F.3d 418 (7th Cir. 1999).
7th Circuit finds obstruction and denies § 3E1.1 reduction based on changing story. (488) Defendant committed two bank robberies. She was arrested with her boyfriend. During a post-arrest interview with FBI agents, she denied her boyfriend was involved and said she robbed the banks because she needed the money for herself and her children. After police found a loaded pistol in her van, she told FBI agents that her boyfriend had instructed her to rob both banks, but that neither she nor the boyfriend possessed the gun at the time of the robberies. However, at her plea hearing, she said the boyfriend held the gun in his lap en route to the second robbery. At sentencing, defendant said the boyfriend had a gun during both robberies. The Seventh Circuit affirmed an obstruction of justice enhancement and denied an acceptance of responsibility reduction based on defendant’s changing story. Even if defendant told the court the truth, and had lied to the FBI agents, as she contended, her false statement that there was no gun concealed the very reason for the robbery–coercion with a gun. Thus, her false statements were material. In addition, there was evidence that the statement impeded the investigation. The government was forced to dismiss its criminal complaint against the boyfriend. Defendant did not deserve a § 3E1.1 reduction. Her increasing efforts to invoke a claim of coercion suggested that she attempted to shift blame to her boyfriend rather than accept responsibility for her conduct. U.S. v. Gibson, 155 F.3d 844 (7th Cir. 1998).
7th Circuit denies acceptance reduction where defendant not entirely honest about his conduct. (488) Defendant, a federal inmate, took part in a riot at a federal prison. One reason for the riot was an unexpected order for the prisoners to “lock down”, i.e. go to their cells, twenty minutes early. Defendant contended that he deserved an acceptance of responsibility reduction because he admitted his refusal to lock down and his wielding of a table leg. He claimed he only went to trial to litigate his diminished capacity defense. The Seventh Circuit rejected this claim. The district court’s finding that defendant was not entirely honest about his conduct during the riot was more than enough to support the denial of the reduction. U.S. v. Ricketts, 146 F.3d 492 (7th Cir. 1998).
7th Circuit denies acceptance credit despite claim that mental condition prevented remorse. (488) Defendant was convicted of seven counts stemming out of two separate murder-for-hire schemes to kill her former lover. Defendant contended that due to the verdict’s effect on her mental condition, she was unable to express remorse for her actions. She claimed that since then, she has accepted responsibility to the extent of her ability. The Seventh Circuit affirmed the denial of the reduction. Defendant neither admitted guilt nor expressed remorse about anything other than her imprisonment. After initially admitting her involvement in the scheme, she sought to suppress the confessions, claiming she could not remember the substance of her statements. Also, defendant’s pretrial statements and conduct belied her supposed acceptance of responsibility. She attempted to disassociate herself from her co-conspirator, she failed to voluntarily surrender or cooperate with police, she took no steps towards rehabilitation, and she made no restitution. Furthermore, defendant put the government to its proof at trial, maintaining her innocence throughout. U.S. v. Scott, 145 F.3d 878 (7th Cir. 1998).
7th Circuit finds plea untimely despite change in prosecutors and in government’s position. (488) During plea negotiations, the prosecutor left the U.S. Attorney’s office. The new prosecutor decided to request a managerial enhancement that the previous prosecutor said he would not request. Defendant claimed that this derailed negotiations and was the reason why his guilty plea was untimely. He argued that but for the change in prosecutors, a timely plea would have been entered and thus he should have received an additional one-level reduction for acceptance of responsibility. At sentencing, the current prosecutor denied knowledge of any negotiations that preceded him. The Seventh Circuit upheld the court’s decision to deny defendant a one-level reduction under § 3E1.1(b)(2). However, the court regarded “with disfavor” the government’s disavowal of any knowledge of the negotiations between defendant and the former prosecutor. Even when the government changes position in the course of plea negotiations, it retains an obligation to present fully the history of those negotiations to the court. Nevertheless, defendant conceded that his negotiations with the former prosecutor were never finalized. Although they may have indicated an intent to enter a guilty plea, his expressed intent was insufficient to save the government from trial preparation. U.S. v. Wilson, 134 F.3d 855 (7th Cir. 1998).
7th Circuit denies one point acceptance of responsibility reduction for untimely plea. (488) The district court granted defendant a two-level acceptance of responsibility reduction. However, the judge denied a further one-level reduction, finding the plea was not timely even though it “cut in half” what was predicted to be a long trial. The Seventh Circuit affirmed the denial of the § 3E1.1(b)(2) reduction based on the court’s finding that defendant’s plea was not timely. Defendant could have challenged the weight of the marijuana at sentencing. Any dispute over the weight should not have delayed his guilty plea. The effect of the plea on the length of defendant’s trial is not dispositive when compared to the amount of pretrial preparation. U.S. v. Senn, 129 F.3d 886 (7th Cir. 1997).
7th Circuit holds partial restitution did not require § 3E1.1 reduction in light of claim of innocence. (488) Defendant argued that she deserved a reduction for acceptance of responsibility because she made voluntary restitution payments before her finding of guilt. The Seventh Circuit upheld the denial of the reduction in light of the fact that defendant disclaimed having knowledge of the scheme and proclaimed her innocence from start to finish, including at the sentencing hearing and on appeal. Moreover, 75% of the bank victim’s losses remained unpaid. U.S. v. Yoon, 128 F.3d 515 (7th Cir. 1997).
7th Circuit denies acceptance credit where defendant minimized involvement in offense. (488) Defendant was convicted of drug charges. His substitute counsel filed a motion to withdraw and argued there were no non-frivolous grounds for appeal. The Seventh Circuit agreed. The district court’s denial of an acceptance of responsibility reduction was proper given that defendant engaged in a continued and deliberate pattern of refusing to admit the extent of his involvement in the offense or his relevant conduct. Given the court’s assessment that defendant was not forthcoming in describing the nature and extent of his involvement in the conspiracy, the court’s denial of safety valve protection was also proper. U.S. v. Whitaker, 127 F.3d 595 (7th Cir. 1997).
7th Circuit says no findings were necessary under § 3E1.1(b)(1) where defendant sought reduction under (b)(2). (488) The district court granted defendant a two level acceptance of responsibility reduction under § 3E1.1(a), but did not grant an additional one level reduction under § 3E1.1(b). Defendant noted that the court’s findings only went to subsection (b)(2), holding he did not timely notify the government of his intention to plead guilty. He contended that the court erred in refusing the reduction without addressing his eligibility under subsection (b)(1) for timely providing the government complete information regarding his involvement in the offense. The Seventh Circuit found the court was not required to make § 3E1.1(b)(1) findings because defendant only requested the district court make the reduction under subsection (b)(2). A court is not obliged to make explicit findings on issues not argued by the defendant. Moreover, the court adopted the findings of the PSR, which found that defendant did not timely provide complete information regarding his involvement in the offense. U.S. v. Underwood, 122 F.3d 389 (7th Cir. 1997).
7th Circuit denies § 3E1.1 reduction where defendant gave conflicting accounts of offense. (488) Defendant, a juror in a civil case, solicited a $2500 bribe from a litigant to sway the jury in the litigant’s favor. He claimed he accepted responsibility by admitting his conduct but denying legal guilt. The Seventh Circuit found this was not a rare situation in which a defendant who went to trial deserved the reduction. Defendant did not go to trial to assert and preserve issues unrelated to his factual guilt—he disputed various facts throughout the proceedings. When defendant was first arrested, he admitted that he went to the restaurant to meet the employee who was to pay him the bribe, but left because he could not find anyone there fitting the employee’s description. At trial, defendant challenged this evidence, arguing that the agent to whom he gave the statement lied and that he actually left the restaurant because he had abandoned his part in the plan. At sentencing, he claimed he went to the restaurant because he could not afford the breakfast places closer to the federal building. U.S. v. Muhammad, 120 F.3d 688 (7th Cir. 1997).
7th Circuit holds plea not timely where agreement not filed with court until the morning of trial. (488) The court granted a two level reduction for acceptance of responsibility, but denied the additional one level reduction under § 3E1.1(b). Defendant argued that he satisfied subsection (b)(2)’s requirement of timely notifying authorities of his intention to plead guilty. The Seventh Circuit held that defendant’s plea was not timely because the plea agreement was not filed with the district court until the morning of trial. At sentencing, the prosecutor stated that she had told the court clerk informally the week before trial that there would be a plea in defendant’s case and she did not expect it to go to trial. The judge noted that the well-established rule in his court was that only the filing of a plea agreement constituted sufficient notice to call off a trial. Defense counsel conceded at oral argument that he knew all along that the judge considered nothing less than a plea agreement to be sufficient notice, and stated that he had no quarrel with the rule. It was uncontroverted that the court was not given the clear and unequivocal notice that it required, and that as a result its resources were expended when it summoned a jury venire and cancelled scheduled civil cases to accommodate the anticipated criminal trial. U.S. v. Wallace, 114 F.3d 652 (7th Cir. 1997).
7th Circuit finds no remorse in tax evasion case where defendant disclaimed half of his income. (488) Defendant helped a telephone company obtain a government contract by bribing a friend at the VA. Between 1988 and 1990, defendant received over $800,000 from the company and he paid $27,859 in bribes to the VA employee. He pled guilty to tax evasion. The district court denied an acceptance of responsibility reduction under § 3E1.1 because at sentencing, defendant claimed that half the money in his Cayman Islands bank accounts belonged to his friend at the VA. On appeal, the Seventh Circuit affirmed. Although defendant pled guilty to tax evasion, he denied responsibility for half of the income that the court ultimately determined to be his. U.S. v. Whitson, 125 F.3d 1071 (7th Cir. 1997).
7th Circuit rejects acceptance credit for minimizing involvement in conspiracy. (488) Defendant pled guilty to a marijuana conspiracy. During his sentencing hearing, he testified that he personally received less than 100 pounds of marijuana from his brother, and that his total involvement in the conspiracy amounted to about 131 pounds. This testimony was flatly contradicted by an FBI agent, who testified that the brother told him that most of the 500 pounds involved in the conspiracy had been distributed by defendant. The Seventh Circuit affirmed the denial of an acceptance of responsibility reduction based on defendant’s attempt to minimize his involvement in the conspiracy. The district court found defendant’s testimony was less credible than the conflicting evidence. U.S. v. Schaefer, 107 F.3d 1280 (7th Cir. 1997).
7th Circuit finds effort to avoid enhancements for future convictions did not show acceptance of responsibility. (488) Defendant robbed four banks. He was willing to plead guilty to one robbery, and stipulate, but not plead guilty, to the other three robberies. The government refused to enter into a plea agreement unless he pled guilty to all four, so the case went to trial and defendant was convicted of all four robberies. The district court denied a § 3E1.1 reduction, finding defendant refused to plead guilty in an effort to avoid the multiple convictions that would trigger a significantly enhanced sentence if he were to commit a future firearms offense. The Seventh Circuit agreed that defendant’s efforts to avoid the application of the recidivist statute to future firearm possessions justified denying an acceptance of responsibility reduction. That defendant was so intent on minimizing the consequences of future criminal activity showed that he had not decided to change his ways. U.S. v. Cunningham, 103 F.3d 596 (7th Cir. 1996).
7th Circuit finds no acceptance of responsibility where defendant minimized conduct. (488) Defendant pled guilty to racketeering and fraud charges. He contended that he was entitled to a three level acceptance of responsibility reduction because he saved the government the expense of a trial estimated to last 10 to 12 weeks by extensively acknowledging his fraudulent dealings with multiple victims. The Seventh Circuit upheld the denial of the § 3E1.1 reduction because defendant lied about the extent of his fraudulent activities, minimized his conduct, and attempted to characterize his relationship with his victims as conduct similar to that engaged in by regular business people. Many of defendant’s assertions were contradicted by witnesses the district court found more credible. U.S. v. Bailey, 97 F.3d 982 (7th Cir. 1996).
7th Circuit says guilty plea not timely enough for § 3E1.1 reduction. (488) Defendant challenged the court’s finding that his guilty plea was not sufficiently timely to qualify for the additional one level acceptance of responsibility reduction under § 3E1.1(b)(2). The Seventh Circuit upheld the court’s determination that defendant was not entitled to the reduction. Defendant did not indicate an intent to plead guilty until eight months after his initial arraignment. His guilty plea was entered only five days before his trial was scheduled to begin. Although § 3E1.1(b)(2) defines timeliness in functional, rather than temporal terms, defendant failed to show that his guilty plea allowed the government to avoid preparing for trial. U.S. v. Wetwattana, 94 F.3d 280 (7th Cir. 1996).
7th Circuit holds that timeliness requirement does not violate 6th Amendment. (488) Defendant received a two level acceptance of responsibility reduction, but did not receive the additional one point reduction because he did not plead guilty until the day before trial. Defendant argued that to exercise his 6th Amendment right to counsel, he had to wait until he received and reviewed with his attorney all discovery materials from the government. Thus, the court’s finding that he did not timely notify authorities of his intent to plead guilty penalized him for exercising his right to counsel. The Seventh Circuit, relying on U.S. v. Tolson, 988 F.3d 1494 (7th Cir. 1993), held that the timeliness requirement does not violate the 6th Amendment. Defendant’s guilty plea on the eve of trial was not timely and resulted in unnecessary trial preparation. Although the government still had to proceed to trial against a co‑defendant, many more counts of the indictment applied to defendant. U.S. v. Altier, 91 F.3d 953 (7th Cir. 1996).
7th Circuit denies credit where plea came after two days of jury selection and defendants denied conspiracy. (488) Defendants operated sham businesses that obtained credit and other personal information which they used to fraudulently obtain credit cards, bank loans and checking accounts. The Seventh Circuit affirmed the denial of a § 3E1.1 credit for acceptance of responsibility because defendants did not plead guilty until after two days of jury selection, and they objected to characterizing their activities as a conspiracy. Timeliness of a defendant’s conduct is a factor in acceptance of responsibility. Although challenging the accuracy of relevant conduct is permissible, if a defendant denies the conduct the court determines to be true, he cannot claim to have accepted responsibility for his actions. U.S. v. Akindele, 84 F.3d 948 (7th Cir. 1996).
7th Circuit says actions before plea negotiations negated timeliness claim. (488) Defendant claimed that he timely notified authorities of his intention to enter a guilty plea under § 3E1.1(b)(2). The Seventh Circuit disagreed, based on his actions before entering plea negotiations. Defendant’s original conviction was vacated on appeal April 27, 1994. From June 1994 until February 9, 1995, defendant indicated that he wished to proceed to trial pro se. He also filed notice of his intent to rely on an insanity defense, causing the court to schedule a series of psychiatric examinations. In addition, he filed motions to modify bail and to dismiss the indictment. These actions did not serve the interests of judicial economy and contained no hint that the government could ignore trial preparation. U.S. v. Sandles, 80 F.3d 1145 (7th Cir. 1996).
7th Circuit denies reduction for defendant’s last-minute shift of blame to another. (488) Defendant was arrested carrying 600 grams of heroin. He was also carrying rental receipts for two storage units containing drug records. Without defense counsel knowledge, defendant wrote a letter to the court asserting that another man had asked him to bring heroin into the country, and that he was not otherwise involved in drug trafficking. During his allocution, defendant said this other man had exclusive access to the storage facility. The Seventh Circuit affirmed the denial of an acceptance of responsibility reduction based on the letter and defendant’s statements. Defendant was trying to convince the court he was an insignificant participant in the 600‑gram incident, and was not responsible for the heroin documented in the records. These suggestions were inconsistent with acceptance of responsibility. U.S. v. Morris, 76 F.3d 171 (7th Cir. 1996).
7th Circuit says guilty plea right after denial of suppression motion was untimely. (488) The district court denied defendant an additional one-point acceptance of responsibility reduction, concluding defendant’s guilty plea on the morning of trial was untimely. Defendant argued he was entitled to the reduction because the hearing on his suppression motion was held the morning of trial, and he pled guilty as soon as the motion was denied. The Seventh Circuit agreed that the plea was untimely. The hearing on the motion to suppress was originally scheduled for several weeks before trial. The district court continued the hearing until the morning of trial at defendant’s request. Defendant did not object to the new date on the ground that it would prevent him from receiving the additional § 3E1.1 reduction. He also did not inform the government that he would be pleading guilty if his suppression motion was denied. Had he done so, the government could have avoided preparing for trial because if the motion to suppress had been successful, it would have destroyed the government’s case. U.S. v. Covarrubias, 65 F.3d 1362 (7th Cir. 1995).
7th Circuit denies acceptance credit for lies to probation officer and lack of remorse. (488) The district court denied defendant a § 3E1.1 reduction because he did not acknowledge his substance and alcohol abuse to his probation officer, and maintained that he had not used drugs. The Seventh Circuit agreed that defendant failed to accept responsibility based on his “blatant untruthfulness” to the probation officer conducting the pre-sentence investigation and his lack of remorse for his involvement in the cocaine conspiracy. U.S. v. Sanchez-Estrada, 62 F.3d 981 (7th Cir. 1995).
7th Circuit denies reduction to defendant who claimed he was mere drug user accompanying supplier to transaction. (488) Defendant, who had been described as a co-defendant’s partner, was involved in an attempt to purchase drugs from confidential informants. He made no statements before trial about guilt or remorse, and contested the factual predicates of the charged offense. He submitted to his probation officer a statement denying his involvement in the conspiracy, but admitting that it was a mistake to accompany his supplier to a drug transaction, and contending that he was a drug user hoping to obtain drugs for free. The Seventh Circuit affirmed the denial of an acceptance of responsibility reduction. Defendant’s version of the facts demonstrated that he did not accept responsibility for his crimes. The only remorse he expressed was over using drugs and his “mistake” in accompanying his supplier to a drug deal. U.S. v. Jones, 55 F.3d 289 (7th Cir. 1995).
7th Circuit denies acceptance reduction for failing to admit extent of involvement. (488) Defendant pled guilty to a tax fraud scheme. She challenged the district court’s denial of an acceptance of responsibility reduction, claiming that on three separate occasions she accepted responsibility for the offense of conviction. The Seventh Circuit disagreed. Neither defendant’s guilty plea nor her bare statements to the court at sentencing that she accepted responsibility for her wrongdoing amounted to an acceptance of responsibility. The district court did not believe defendant was entirely truthful about the role she played in the scheme. Defendant admitted drafting only two of the false tax returns, yet the government offered evidence that she had written more, and had told runners how to submit their returns. These were all integral parts of the scheme to which defendant pled guilty. Defendant was not penalized for failing to admit conduct outside the count of conviction. Although the judge admonished her to cooperate by naming other individuals involved in the scheme, her failure to do so was not a basis for denying the reduction. U.S. v. Jones, 52 F.3d 697 (7th Cir. 1995).
7th Circuit denies acceptance of responsibility reduction to defendant who pled guilty but minimized role. (488) Defendant argued that he was entitled to an acceptance of responsibility reduction because he pled guilty and fully admitted his complicity in the crimes charged. The Seventh Circuit held that the guilty plea did not entitle defendant to the reduction, since in his written statement to the probation officer he attempted to minimize his role in the offense. He claimed he merely referred an associate to a “banker” to negotiate a stolen Treasury check, when in fact he actively participated in its attempted negotiation. He also was not honest about the extent to which he profited from the offense. U.S. v. Dillard, 43 F.3d 299 (7th Cir. 1994).
7th Circuit denies acceptance reduction to defendant who claimed bribes were gratuities. (488) Defendant, a public official, accepted the use of eight automobiles, free of charge, from individuals who wanted to ingratiate themselves with him. Defendant also accepted an $8,000 watch from a subordinate in return for job security. Defendant argued that the bribes were mere gratuities, and that he never promised to do anything for his donors. He stated that the donors would have received the identical treatment from him even if they had given him nothing. The Seventh Circuit upheld the denial of an acceptance of responsibility reduction based on defendant’s attempt to rationalize his crimes. A sentencing judge should not award an acceptance of responsibility reduction for “spin control.” U.S. v. Dvorak, 41 F.3d 1215 (7th Cir. 1994).
7th Circuit denies acceptance of responsibility reduction for falsely denying gun possession and supervisory role. (488) The district court denied defendant a reduction for acceptance of responsibility after finding that he attempted to minimize his role in a drug conspiracy. The 7th Circuit agreed, since defendant falsely denied possessing a gun while engaged in a drug offense and falsely denied that he had a supervisory role in the organization. U.S. v. Linnear, 40 F.3d 215 (7th Cir. 1994).
7th Circuit says plea a week before trial did not require additional one-level reduction. (488) Defendants argued that they were entitled to an additional one level acceptance of responsibility reduction because they timely notified authorities of their intent to plead guilty at their first pre-trial conference. However, they did not actually plead guilty until seven months later, one week before trial. The 7th Circuit held the plea was not sufficiently timely to warrant the additional one point reduction. Early notification does not entitle a defendant to a reduction under § 3E1.1(b)(2) unless it conserves government and court resources. The defendants pleaded guilty only after various pre-trial conferences were held, and after the trial was rescheduled several times. Although defendants claimed that the government was aware of their intent to plead guilty, this was belied by the government’s motion to sever one defendant from the remaining defendants and to compel handwriting exemplars. The district court could have concluded that defendants wasted enough government resources not to qualify for the additional reduction. U.S. v. Francis, 39 F.3d 803 (7th Cir. 1994).
7th Circuit says government’s recommendation for acceptance of responsibility reduction is not binding. (488) Defendant argued that he was entitled to an acceptance of responsibility reduction because the government stated in its version of the offense that the prosecutor was aware of no reason to deny the reduction. Defense counsel concluded that the argument was groundless and sought to withdraw from appellate representation. The 7th Circuit agreed that there were no valid grounds for appeal, and granted counsel’s motion. There is no case law supporting the view that a government’s recommendation is binding on the sentencing judge. Defendant was less than truthful in describing his role in the offense to the prosecutor and the probation officer. Not only was the denial of the reduction proper, but the court might have been justified in applying an obstruction of justice enhancement. U.S. v. Garcia, 35 F.3d 1125 (7th Cir. 1994).
7th Circuit agrees that defendant did not accept responsibility for money laundering offense. (488) Defendant was convicted of conspiring to launder money in connection with her prostitution business. She claimed that she accepted responsibility for an escort service, but not for the acts of prostitution that others committed. The 7th Circuit affirmed the denial of an acceptance of responsibility reduction, since defendant continued to deny that she knew that the proceeds which she deposited were the fruits of prostitution. U.S. v. Montague, 29 F.3d 317 (7th Cir. 1994).
7th Circuit denies reduction where defendant never admitted the offense. (488) The 7th Circuit upheld the denial of a reduction for acceptance of responsibility because defendant never admitted that he committed the charged conduct. At sentencing, defendant, through his counsel, argued that all he did was sell or help somebody buy some chemicals, and as a result he was not guilty. U.S. v. Hubbard, 22 F.3d 1410 (7th Cir. 1994).
7th Circuit denies reduction where defendant did not admit fraudulent intent until after conviction. (488) Defendant was convicted of counterfeiting. The offense required the government to prove that defendant intended to defraud someone with the bogus currency he produced. In his statements at trial and to agents when he was arrested, defendant denied that he intended to defraud anyone with the fake currency, arguing he was using it for a direct mail promotion. After he was convicted, defendant submitted a statement to the district court that implied that he intended to use the counterfeit money to defraud. The 7th Circuit affirmed the denial of a reduction for acceptance of responsibility. Application note 2 to section 3E1.1 states that the 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. U.S. v. Kenny, 5 F.3d 214 (7th Cir. 1993).
7th Circuit rejects acceptance of responsibility reductions for defendants who pled guilty but committed perjury and minimized roles. (488) The 7th Circuit upheld the denial of acceptance of responsibility reductions to defendants who pled guilty, but were less than truthful with the court about the extent of their involvement in the cocaine conspiracy and distribution scheme. Even if the court had not imposed the obstruction of justice enhancement, the defendants were not entitled to the reduction. The reduction does not automatically apply merely because a defendant pleads guilty. U.S. v. Pitz, 2 F.3d 723 (7th Cir. 1993).
7th Circuit remands to determine whether restitution before judgment showed acceptance of responsibility. (488) Defendant was convicted of fraudulently obtaining a bank loan. He argued that the district court erred in not considering the amount of money that he paid to the bank on a consolidated loan which included the fraudulent loan. The 7th Circuit remanded for the district court to consider whether defendant’s restitution prior to his adjudication of guilt, together with other evidence, showed acceptance of responsibility under §3E1.1. The district court made no findings with regard to the amounts defendant paid on the consolidated loan. U.S. v. Chevalier, 1 F.3d 581 (7th Cir. 1993).
7th Circuit denies reduction to defendants who lied in their proffer. (488) The 7th Circuit affirmed the denial of an acceptance of responsibility reduction to defendants who lied in their proffer regarding the amount of cocaine involved in the conspiracy. The denial of the reduction was not a penalty and therefore it was not a violation of their 5th Amendment right against self-incrimination to deny the adjustment based on their contention that the conspiracy involved less than five kilograms of cocaine. U.S. v. Wagner, 996 F.2d 906 (7th Cir. 1993).
7th Circuit upholds denial of reduction to defendant who maintained innocence. (488) Defendant was arrested after a large quantity of heroin was found in his suitcase upon his entry into the United States. He insisted to customs officials and at trial that he was unaware of the drugs, his luggage had been stolen, and his cousin had given him the suitcase to use. The 7th Circuit upheld the denial of a reduction for acceptance of responsibility. Defendant’s pretrial statements and conduct and the particular type of defense he presented at trial refuted his later attempt to accept responsibility for his criminal behavior. Even defendant’s statements to the probation officer continued to hedge. He still blamed his cousin for tricking him, and insisted that he had no idea there was such a large quantity of heroin in his suitcase. This was not one of the rare instances where a defendant who goes to trial demonstrates that he fully accepted responsibility for his criminal conduct. U.S. v. Osmani, 20 F.3d 266 (7th Cir. 1994).
7th Circuit holds guilty plea four days before trial was not timely for 3-level reduction. (488) Defendant pled guilty four days before trial. He claimed that he agreed to plead guilty at least a week before trial, and that therefore he deserved an additional one level reduction for acceptance of responsibility under section 3E1.1(b)(2). The 7th Circuit held that neither four days, nor seven days, nor seven plus a few days, constituted timely notice under section 3E1.1(b)(2). The notice did not allow the government to avoid preparing for the anticipated five to six week trial. The district court also found that the notice of defendant’s guilty plea was not sufficiently timely to allow it to allocate its resources effectively. U.S. v. Robinson, 14 F.3d 1200 (7th Cir. 1994).
7th Circuit denies acceptance of responsibility despite “impressive” oration before judge. (488) When defendant spoke to his probation officer, he denied involvement in narcotics. At sentencing, however, he read a long statement in which he accepted responsibility for his offense, expressed remorse, and promised to make amends in the future. The sentencing judge decided there was no acceptance of responsibility even though he was “impressed” with defendant’s oration. The 7th Circuit upheld the denial of credit for acceptance of responsibility. A defendant has the burden of proving acceptance of responsibility. The judge found that defendant’s statement was prompted by his co-conspirators’ guilty pleas, and not by any genuine remorse. Moreover, a defendant’s failure to demonstrate truthfulness and remorse prior to the “final hour” is a factor upon which a judge can rely in denying the reduction. U.S. v. Kerr, 13 F.3d 203 (7th Cir. 1993).
7th Circuit rejects reduction where defendant blamed his conduct on police. (488) Defendant argued that he was not barred from receiving an acceptance of responsibility reduction just because he went to trial and was convicted of three of the four charges brought against him. The 7th Circuit agreed, but still upheld the denial of the reduction. Even after trial, defendant continued to deny every facet of the charges against him. He claimed he was not guilty because he was working for the police when he committed the offense. However, defendant did not assist the police. On the contrary, he fled from the police and led them on a wild chase that resulted in an accident. Only after he was in trouble did he offer to assist police by giving them information about illicit drug activities of other drug dealers. U.S. v. Chandler, 12 F.3d 1427 (7th Cir. 1994).
7th Circuit denies reduction to defendant who blamed another for inducing him to commit crimes. (488) Defendant was convicted of filing false insurance forms with the U.S. Department of Agriculture. He claimed that an employee of the General Accounting Office asked him to do this as part of a covert effort to expose fraud and abuse in USDA programs. No such employee was ever found. The 7th Circuit affirmed the denial of credit for acceptance of responsibility. Although defendant admitted filing the false forms, he never accepted responsibility for his acts — he continued to blame the employee. Where a defendant persists in asserting entrapment, he or she cannot claim acceptance of responsibility. U.S. v. Simpson, 995 F.2d 109 (7th Cir. 1993).
7th Circuit denies acceptance of responsibility adjustment to defendant who pled insanity. (488) Defendant appealed the district court’s refusal to grant him an acceptance of responsibility adjustment. Though the government had argued that defendant’s insanity defense should preclude the adjustment, the district court disagreed, but the court nevertheless denied the adjustment because it found this particular defendant’s efforts to blame his illness for his problems as an effort not only to avoid legal responsibility for his crimes, but also moral responsibility for his crimes. The 7th Circuit held that the district court’s conclusion was not clearly erroneous. Nor did the court’s failure to tie its denial to the categories in application note 1 to 3E1.1 violate circuit law, in light of the court’s provision of an explicit reason for its denial. U.S. v. Reno, 992 F.2d 739 (7th Cir. 1993).
7th Circuit denies acceptance credit where defendant claimed he was feigning drug deal. (488) The 7th Circuit affirmed the denial of a reduction for acceptance of responsibility where the district court found defendant was untruthful regarding his involvement with a drug conspiracy. He inaccurately characterized his role in telephone conversation among himself and two other conspirators. He contended he was feigning negotiation of a drug deal in order to determine whether one co-conspirator had stolen from the other co-conspirator. However, an FBI agent testified that based upon numerous conversations, he was convinced that defendant was not “playing around,” but was actively engaged in drug distribution. U.S. v. Yanez, 985 F.2d 371 (7th Cir. 1993).
7th Circuit refuses to consider ineffective assistance claim because record reflected lack of acceptance of responsibility. (488) Defendant argued that the district court’s finding that he did not accept responsibility was tainted by the ineffective assistance he received from his counsel at sentencing. The 7th Circuit refused to review in detail defendant’s claim because defendant did not show that but for his attorney’s alleged mistakes the result would have been different. Almost the entire record supported the denial of the reduction. Defendant not only challenged his guilt at trial, but likely committed perjury in testifying that he never sold cocaine. After trial, defendant continued to deny his involvement until after the district court cited his denial as a reason for denying the acceptance of responsibility reduction. Although defendant admitted some involvement at sentencing, it was a grudging and incomplete admission, accompanied by an excuse to minimize his own culpability. U.S. v. Aquilla, 976 F.2d 1044 (7th Cir. 1992).
7th Circuit denies reduction to defendant who blamed victim for the crime. (488) The 7th Circuit affirmed the denial of a reduction for acceptance of responsibility. Neither defendant’s letter to his probation officer purporting to accept responsibility nor his written statement purporting to accept responsibility recognized that he was at fault and responsible for the kidnapping and resultant batteries. If anything, his statement sought to blame the victim for the crime. U.S. v. O’Neal, 969 F.2d 512 (7th Cir. 1992).
7th Circuit affirms that defendant’s remorse was “too little, too late.” (488) The probation officer recommended a reduction for acceptance of responsibility, based on defendant’s full confession to him after conviction. The 7th Circuit affirmed the denial of the reduction based on the district court’s determination that defendant did not show true remorse. Defendant did not turn himself in or voluntarily withdraw from criminal activity, and in fact told lies at the time of his arrest. Despite a clear opportunity to “come clean,” he chose to perpetuate the conspiracy. Defendant’s non-cooperation after his arrest, combined with his attempts to downplay his role in the conspiracy, led the district court to reasonably conclude that defendant’s remorse was “too little, too late.” U.S. v. Saunders, 973 F.2d 1354 (7th Cir. 1992).
7th Circuit affirms denial of acceptance of responsibility reduction to defendant who blamed alcohol and friends. (488) Defendant told the judge that when he committed the instant offense, he was drinking a lot, and the alcohol caused him to “pay attention” to the informant. The judge denied the reduction, regarding this as an effort to shift responsibility from the defendant to “the demon alcohol and evil companions.” The 7th Circuit affirmed, since there were no expiatory deeds by defendant in the record. The court acknowledged that the issue could be decided either way, and decided that the application note was on the right track in emphasizing deeds over words: “external, verifiable, expiatory acts over self-serving, unverifiable reports of interior mental states.” Deeds not only are better evidence than words, but have value to law enforcement authorities. U.S. v. Beserra, 967 F.2d 254 (7th Cir. 1992).
7th Circuit holds that defendant’s “admissions” were lies that justified obstruction enhancement. (488) The 7th Circuit affirmed an enhancement for obstruction of justice and the denial of a reduction for acceptance of responsibility based upon defendant’s explanation for his involvement in a murder for hire scheme. Defendant’s contentions that he was forced into the scheme by the undercover FBI agent, that the confidential informant threatened the safety of defendant and his family, and that he did not intend to have former in-laws killed, were properly labeled by the district court as lies and fabrications. Defendant’s trip to meet the FBI agent, the payment of $500 on account with a promise of another $1000, and his supplying pictures and addresses of the intended victims supported this determination. The lies not only were grounds for a denial of a reduction for acceptance of responsibility, but were grounds for the obstruction enhancement. U.S. v. Carr, 965 F.2d 408 (7th Cir. 1992).
7th Circuit denies acceptance of responsibility reduction to defendant who provided assistance after conviction but prior to sentencing. (488) The 7th Circuit rejected defendant’s claim that he was entitled to a reduction for acceptance of responsibility even though he provided information to the government regarding an uncharged co-conspirator in an interview conducted after conviction but prior to sentencing. The reduction is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilty, is convicted, and only then admits guilt and expresses remorse. Moreover, it was questionable whether defendant even expressed true remorse, for during the interview, law enforcement officers terminated the conference after defendant lied in response to a question. U.S. v. Agrell, 965 F.2d 222 (7th Cir. 1992).
7th Circuit agrees that defendant’s post-trial admission of guilt was untimely and insincere. (488) The 7th Circuit affirmed the district court’s denial of a reduction for acceptance of responsibility despite the fact that in his interview with his probation officer, defendant admitted participation in the offense and claimed that he deeply regretted his involvement. Defendant admitted his participation in the offense only after a full trial in which he claimed that he was entrapped by government agents. At trial, he relied upon testimony by a co-defendant which the district court found was perjurious. There was no error in the district court’s determination that defendant’s admission of guilt was “motivated more by [his] concern to improve his potential disposition than by true remorse.” U.S. v. Leiva, 959 F.2d 637 (7th Cir. 1992).
7th Circuit affirms denial of acceptance of responsibility reduction where defendant denied distributing cocaine. (488) The 7th Circuit affirmed the district court’s denial of an acceptance of responsibility reduction. The district court found that defendant persisted in denying that he had distributed six pounds of cocaine, and also noted defendant’s “belated remorse does not suggest the timeliness of conduct manifesting the acceptance of responsibility.” U.S. v. Levy, 955 F.2d 1098 (7th Cir. 1992).
7th Circuit rules misrepresentation of employment status did not justify obstruction enhancement. (488) Defendant told his probation officer and the court that he was employed at a particular brokerage firm as a broker-trainee for various times ranging from a few days to a few months prior to his arrest. In fact, defendant was never employed there. He had begun a training program at the firm which, if completed successfully, could lead to his employment as a sales representative on a commission basis. The 7th Circuit rejected defendant’s misrepresentation as a ground for an obstruction of justice enhancement because the misrepresentations were not material. However, the false information did support the district court’s decision to deny defendant a reduction for acceptance of responsibility. U.S. v. De Felippis, 950 F.2d 444 (7th Cir. 1991).
7th Circuit rejects reduction based on attempt to accept responsibility at end of sentencing hearing. (488) At the very end of the sentencing hearing, immediately prior to imposition of sentence, the defendant made a “feeble attempt” to accept responsibility. The 7th Circuit affirmed the denial of a reduction for acceptance of responsibility. “Waiting until the district judge has resolved the disputed facts at the critical moment of sentencing [was] inconsistent” with acceptance of responsibility. U.S. v. Blas, 947 F.2d 1320 (7th Cir. 1991).
7th Circuit denies acceptance of responsibility to defendant who raised entrapment defense. (488) The 7th Circuit affirmed that a defendant who admitted selling drugs to a confidential informant, but claimed entrapment, was not entitled to a reduction for acceptance of responsibility. “It is difficult for this Court to envision how the defendant argued that he affirmatively accepted responsibility for his criminal action when throughout the proceedings he maintained that his criminal action was not his fault, but rather, it was the result of government inducement.” U.S. v. Hansen, 964 F.2d 1017 (10th Cir. 1992).
7th Circuit denies acceptance of responsibility reduction to defendant who attempted to excuse himself. (488) The 7th Circuit affirmed the denial of a reduction for acceptance of responsibility to a defendant who sold cars to drug dealers in a manner which permitted the dealers to hide their drug proceeds. Defendant did not voluntarily withdraw from criminal conduct and did not plead guilty until the day of trial. More importantly, defendant sent a letter to the district court which the district court found “unbelievable.” In the letter defendant attempted to excuse his conduct by claiming he did not know what the dealers were doing. U.S. v. Antzoulatos, 962 F.2d 720 (7th Cir. 1992).
7th Circuit defers to district court’s finding that defendant failed to accept responsibility for conduct. (488) The 7th Circuit noted that defendant bore the burden of proving his entitlement to a reduction for acceptance of responsibility. Since the defendant gave no reason for the court to believe the district court erred, the 7th Circuit deferred to the district court’s finding that defendant’s apology was “a calculated simulation of remorse,” and upheld the district court’s decision not to reduce defendant’s base offense level. U.S. v. Camargo, 908 F.2d 179 (7th Cir. 1990).
7th Circuit denies acceptance of responsibility reduction where defendant was on probation after similar crime. (488) Defendant was convicted of trafficking in counterfeit goods, an offense for which she had also been convicted several years earlier. The 7th Circuit found that it was proper for district court to rely on defendant’s probationary status and her knowledge of the illegality of her conduct to deny her a reduction for acceptance of responsibility. These factors showed that she “willfully and knowingly” violated the applicable statute, and therefore were relevant to the determination of whether she accepted responsibility for her offense. U.S. v. Song, 934 F.2d 105 (7th Cir. 1991).
7th Circuit finds no acceptance of responsibility despite defendant’s cooperation. (488) Despite defendant’s cooperation with authorities in their investigation of drug trafficking, the district court denied defendant a reduction for acceptance of responsibility, and the 7th Circuit affirmed. Although defendant flew from Florida to Chicago with seven ounces of cocaine hidden in his pants, defendant stated that he never knew he was transporting cocaine and never willingly participated in drug trafficking. U.S. v. Osborne, 931 F.2d 1139 (7th Cir. 1991).
7th Circuit denies acceptance of responsibility reduction to defendant who told probation officer he was not a drug dealer. (488) In his presentence interview with the probation officer, defendant denied that he was a drug dealer or that there was any drug conspiracy. Based on this, the 7th Circuit affirmed the denial of a reduction for acceptance of responsibility. Although defendant “expressed some remorse and greater truthfulness at the final hour, the moment of sentencing,” it was proper for the district court to deny the reduction based upon his earlier conduct. U.S. v. Osborne, 931 F.2d 1139 (7th Cir. 1991).
7th Circuit rejects acceptance of responsibility reduction for defendant who stated he had made mistakes. (488) The 7th Circuit rejected defendant’s contention that he was entitled to a reduction for acceptance of responsibility. Defendant made no factual basis for the reduction other than a statement he made to the court at sentencing that he had “made mistakes” in life. The showing was insufficient to overcome the great deference to which this determination of the district court was entitled. U.S. v. McKenzie, 922 F.2d 1323 (7th Cir. 1991).
8th Circuit finds government did not breach plea agreement by failing to move for acceptance credit. (488) Defendant pled guilty to conspiracy to distribute 500 grams or more of methamphetamine. However, after reaching a plea agreement with the government, defendant wrote letters to the district court in which he denied having distributed 500 grams or more and asked to be convicted for a lower amount. At sentencing, the district court denied defendant an acceptance of responsibility reduction. Defendant appealed, arguing that the prosecution breached the plea agreement by failing to move for a three-level acceptance of responsibility reduction, and by agreeing with the district court’s calculation of a drug quantity amount higher than in the plea agreement. The Eighth Circuit disagreed. By writing letters to the district court, defendant exhibited conduct inconsistent with acceptance of responsibility and potentially in breach of his plea agreement. Defendant did not demonstrate that he was prejudiced by the government’s having agreed to the district court’s finding of a base offense level higher than that contained in defendant’s plea agreement. U.S. v. Rendon, 752 F.3d 1130 (8th Cir. 2014).
8th Circuit denies acceptance reduction to defendant who attempted to withdraw guilty plea. (488) Defendant pled guilty to methamphetamine conspiracy charges. The district court denied a § 3E1.1(a) reduction, finding that his attempt to withdraw his guilty plea showed that he had not accepted responsibility. The Eighth Circuit agreed. Defendant had acknowledged his criminal activity in the stipulation of facts attached to his plea agreement. Nevertheless, at the hearing on defendant’s motion to withdraw his guilty plea, defense counsel asserted defendant’s innocence and requested that a trial be scheduled. Defendant attempted to withdraw his guilty plea because he believed that the government should be forced to meet its burden of proving the facts set forth in the stipulation, even though the government’s evidence supported the stipulations and defendant confirmed the stipulations were true. That motive was inconsistent with acceptance of responsibility. Moreover, defendant testified that he had lied to agents during a debriefing session about whether he ever resided in Iowa. His residency in Iowa bore on the issue of his relationship with his co-conspirators. U.S. v. Rodriguez, 741 F.3d 905 (8th Cir. 2014).
8th Circuit denies acceptance reduction where defendant recanted guilt. (488) Defendant’s initial plea agreement provided him a full three-level reduction for acceptance of responsibility, unless “the government receives new evidence of statements or conduct by the defendant which it believes are inconsistent with the defendant’s eligibility for this deduction.” He claimed that he held true to his statements in the plea agreement, and was therefore improperly denied the three-level reduction. The Eighth Circuit disagreed. First, defendant retreated from his admission in the plea agreement that he had sent a threatening email to the victim. At the sentencing hearing, defendant advanced the false theory that he had “inadvertently and indirectly” caused the email to be sent, but it was principally sent by his enemies. Defendant also revived a false allegation of “torture” and “sexual abuse” by the arresting federal agents, telling the court his allegations were “not out-and-out false.” A defendant who admits but later recants guilt is not entitled to an acceptance of responsibility reduction. Moreover, defendant refused to express remorse or responsibility for his actions. U.S. v. Bakhtiari, 714 F.3d 1057 (8th Cir. 2013).
8th Circuit holds that court properly rejected acceptance reduction. (488) Defendant argued that the district court erred when it granted him only a one-level reduction for acceptance responsibility, and that he was entitled to a two-level reduction. The Eighth Circuit found that the defendant misunderstood the court’s actions. The court did not provide an acceptance of responsibility reduction at all. Instead, the court denied defendant the acceptance reduction, but then granted defendant a one-level downward variance for pleading guilty and saving the government the cost of trying the case. The panel further ruled that the court properly denied defendant the two-level acceptance reduction. After pleading guilty, defendant continued to deny, among other things, that (1) his was the voice on the recorded phone calls; (2) he continued to engage in the fraud scheme after being arrested; and (3) he opened credit cards, requested balance transfer checks, and wrote balance transfer checks payable to fictitious businesses. The record plainly contradicted defendant’s asserted non-involvement. U.S. v. Adetiloye, 716 F.3d 1030 (8th Cir. 2013).
8th Circuit denies additional acceptance credit where notice of guilty plea was filed two weeks before trial. (488) Defendant argued that the district court erred in refusing to deduct a third point from his offense level for “timely notifying authorities of his intention to enter a plea of guilty.” U.S.S.G. § 3E1.1(b). Defendant filed his intention to plead guilty two weeks before his trial was scheduled to begin, and about three months after his initial indictment. The Eighth Circuit found that the government was not irrational and the district court did not commit clear error in determining that the timing of defendant’s notice of intention to plead guilty did not permit the government and court to allocate its resources efficiently. There was no procedural error in the court’s refusal to award this point. U.S. v. Moore, 683 F.3d 927 (8th Cir. 2012).
8th Circuit denies acceptance reduction where defendant continued to deny conduct even after guilty plea. (488) Defendant challenged the district court’s denial of a reduction for acceptance of responsibility. The Eighth Circuit found no error. Although defendant eventually pled guilty to the firearm charges, he initially made false statements to the police about the gun and instructed his wife to lie to the grand jury about the origin and ownership of the gun. Moreover, even after his guilty plea, defendant continued to deny a connection between the gun and the drugs despite unobjected to statements in the PSR and testimony at the sentencing hearing establishing such a connection. This was not one of those extraordinary circumstances in which both an offense level increase for obstruction of justice and a decrease for acceptance of responsibility applies. U.S. v. Hull, 646 F.3d 583 (8th Cir. 2011).
8th Circuit denies acceptance reduction to defendant who posted online rant about his prosecution. (488) Defendant pled guilty to methamphetamine conspiracy charges. The PSR initially recommended a three-level acceptance of responsibility reduction. However, 20 days after the entry of his guilty plea, defendant posted online a rant about his prosecution. In addition, on the date of his original sentencing, he tested positive for drug use. The Eighth Circuit upheld the denial of an acceptance of responsibility reduction. The online rant was inconsistent with any acceptance of responsibility by defendant. In the rant, defendant placed responsibility for his offense on the “addicts” who bought his product, and on the unnamed officials who denied his disability benefits. His only regret seemed to be that law enforcement officers and informants had the temerity to disrupt the meth “service” he provided to his community. Moreover, his presentencing use of meth and his initial false statements to the probation officer, denying making the online rant, were inconsistent with acceptance of responsibility. U.S. v. Wineman, 625 F.3d 536 (8th Cir. 2010).
8th Circuit denies acceptance credit where defendant frivolously denied relevant conduct. (488) At sentencing, defendant argued he should receive a full three-point reduction for acceptance of responsibility, claiming that he assisted the government’s investigation and timely entered his guilty plea. The district court gave him no reduction, finding that he had frivolously contested relevant conduct at sentencing, and had falsely denied it in his allocution. The Eighth Circuit upheld the denial of the reduction. A finding based on the credibility of live witnesses can almost never be deemed clearly erroneous. U.S. v. Lee, 625 F.3d 1030 (8th Cir. 2010).
8th Circuit rejects acceptance reduction where defendant pleaded guilty on first day of trial. (488) The grand jury returned a one-count indictment charging defendant with being a felon in possession of a firearm. Although he admitted possessing the gun, he initially pled not guilty to the charge of the indictment, and did not change his plea until the first day of trial, when he entered an Alford plea. The Eighth Circuit upheld the denial of an acceptance of responsibility reduction. In addition to waiting until the first day of trial to change his plea, the district court found that defendant falsely denied relevant offense conduct. The court found that contrary to his denials, defendant possessed the gun with intent to use it to assault law enforcement officers. U.S. v. Woods, 596 F.3d 445 (8th Cir. 2010).
8th Circuit agrees defendant did not demonstrate acceptance of responsibility. (488) Defendant argued that the district court erred when it denied his request for a two-level reduction for acceptance of responsibility, noting that he pled guilty prior to trial and truthfully admitted his criminal conduct in his presentence investigation interview. The Eighth Circuit found no error. Defendant attempted to minimize his offense conduct. During his presentence interview, he admitted only limited facts and denied relevant conduct. He also submitted frivolous objections to his PSR. He later admitted to all of this conduct by withdrawing his objections at sentencing. He also did not notify the court of his intent to plead guilty until the morning of his jury trial. U.S. v. Fischer, 551 F.3d 751 (8th Cir. 2008).
8th Circuit denies acceptance reduction to defendant who minimized role. (488) Defendant and her boyfriend were convicted of possession of pseudoephedrine knowing it would be used to manufacture methamphetamine. She argued that she was entitled to an acceptance reduction because her attorney told the jury in opening statements that the only charges she denied were the firearm charge and the witness tampering charge. However, the government submitted a list of all the ways defendant tried to minimize or deny her involvement prior to sentencing. Despite the fact that the drug paraphernalia was located on her kitchen countertops, in her bedroom, and on top of her bed, defendant stated that she had no idea where the drug paraphernalia in her home came from and suggested that it must have been left by previous tenants. However, testimony from co-conspirators established that defendant was not only aware of the presence of the drug paraphernalia in her home, she was running the meth manufacturing operation. U.S. v. Canania, 532 F.3d 764 (8th Cir. 2008).
8th Circuit says court could not deny additional one-point reduction for reasons unrelated to § 3E1.1(b). (488) The district court applied a two-level acceptance of responsibility reduction under § 3E1.1(a), but then declined to decrease the offense level by an additional level under § 3E1.1(b) because defendant “greatly minimized his role in the case,” and had not sufficiently embraced his guilt. The Eighth Circuit ruled that this was error. Once the court found that defendant accepted responsibility for his offense, the court did not have discretion to decline to decrease the offense level by an additional level for reasons unrelated to the steps described in § 3E1.1(b). If defendant timely notified authorities of his intention to plead guilty, then he should have qualified for the three-level decrease. The error was harmless, since defendant had overlapping sentencing ranges, and the court specifically announced that it would have imposed the same sentence even if it had granted defendant a full three-level reduction. U.S. v. Mickle, 464 F.3d 804 (8th Cir. 2006).
8th Circuit denies acceptance reduction to defendant who pled guilty on last day of trial. (488) In denying defendant an acceptance of responsibility reduction, the district court noted that defendant pleaded guilty on the last day or trial, after the government had presented the majority of its evidence, including showing the pornographic videotapes he created. The district court found that defendant’s plea was not timely. Moreover, defendant only admitted to videotaping two victims after it was apparent from the tapes that there were more than two victims. The Eighth Circuit held that the district court’s denial of an acceptance of responsibility reduction was not clearly erroneous. U.S. v. Kiel, 454 F.3d 819 (8th Cir. 2006).
8th Circuit denies acceptance reduction for minimizing conduct in scalding toddler. (488) Defendant pled guilty to assault resulting in serious injury following the bathwater burning of his two-year old daughter. Upset with the child for soiling herself, defendant forcibly held her on her back in a bathtub filled with scalding water. He then left her trapped in the water for several minutes. The burns were so severe that she was hospitalized for three weeks and will have permanent scarring. The Eighth Circuit affirmed the denial of a reduction for acceptance of responsibility because defendant minimized his conduct and made excuses for his behavior. While defendant admitted he knew the water was hot, he also claimed that he did not mean to hurt the child. He made the incredible assertion that his daughter did not cry during the scalding or during transport to the hospital. At sentencing, he attributed the assault to the fact that he “jumped into fatherhood … too soon.” U.S. v. Little Hawk, 449 F.3d 837 (8th Cir. 2006).
8th Circuit rejects “all or nothing” approach but finds defendant still not eligible for acceptance reduction. (488) The government challenged the district court’s acceptance of responsibility reduction, advocating an “all or nothing” approach where a defendant can receive an acceptance reduction only by pleading guilty to all offenses of which he is convicted. The Eighth Circuit found this approach too general. In multiple count-indictments, court must group counts of closely-related conduct before determining the defendant’s base offense level of the grouped counts. Acceptance of responsibility is considered only after the base offense level is determined for the grouped offenses. Where a defendant pleads guilty to all counts that are grouped for sentencing, contesting guilt only on non-grouped offenses, the guidelines do permit a two-level acceptance reduction based on the totality of the circumstances. However, based on the totality of the circumstances, defendant was not entitled to the reduction. While defendant did plead guilty to the grouped drug offenses, his pleas were untimely, occurring only a week before trial and after the government prepared its case. More importantly, defendant refused to plead guilty to the offense of carrying a firearm “in furtherance of a drug-trafficking crime,” which would have been relevant conduct to the drug offenses had they not been grouped separately under the guidelines. U.S. v. Wattree, 431 F.3d 618 (8th Cir. 2005).
8th Circuit upholds refusal to grant additional acceptance reduction. (488) Defendant argued that the government and the district court unreasonably withheld the third-level acceptance of responsibility reduction. However, he did not articulate any reason for error except that the government and the court were being unreasonable. However, defendant’s conduct prior to sentencing was “arguably overly dilatory and certainly contrary to his admission of guilty.” Defendant filed a motion to suppress evidence less than a month before the scheduled trial date and a motion to continue the notification deadline on the date notification was due. He also entered a plea of guilty and then attempted to withdraw that plea. The Eighth Circuit ruled that the government’s decision to not bring a § 3E1.1(b) motion was not improper, and the court’s failure to grant the reduction was not clear error. U.S. v. Smith, 422 F.3d 715 (8th Cir. 2005).
8th Circuit holds that plea agreement required government to move for additional acceptance reduction. (488) The government agreed, as part of defendant’s plea agreement, to recommend that he receive an acceptance of responsibility reduction “unless there is significant evidence disclosed in the presentence investigation to the contrary.” If defendant met certain time constraints, the agreement further provided “and assuming U.S.S.G. § 3E1.1(b) applies, the United States will make a motion, pursuant to U.S.S.G. § 3E1.1(b) … to reduce defendant’s offense level by an additional level.” Defendant returned two days late to the community corrections facility where he was staying pending sentencing, and admitted to drinking alcohol and smoking marijuana over the course of the weekend. The court nonetheless found that the two-level acceptance reduction was warranted. However, it ruled that it could not make the additional one-level reduction under § 3E1.1(b) because the government did not make a motion. The Eighth Circuit held that the government breached the plea agreement by failing to move for the additional one-level acceptance reduction. The caveat in the first paragraph (“unless there is significant evidence disclosed in the presentence investigation to the contrary”) did not apply to the second paragraph. Once the district court granted the two-level reduction on its own motion, the government was obligated to move for the additional level reduction. However, defendant did not establish that the error affected his substantial rights (defendant did not raise the error below), and thus was not entitled to resentencing. Given the court’s treatment of the guidelines as advisory, and its extensive discussion of the myriad factors that went into sentencing determination, defendant did not demonstrate a reasonable probability that the court would have imposed a lesser sentence had the government moved for the additional reduction. U.S. v. Jensen, 423 F.3d 851 (8th Cir. 2005).
8th Circuit denies third-level acceptance reduction where court rejected earlier attempt to plead guilty. (488) Defendant pled guilty on the first day of trial after the jury was empanelled and received a two-level downward adjustment for acceptance of responsibility. He contended that he should have received a third-level adjustment because the district court should not have rejected his earlier attempt to plead guilty five days before trial. The Eighth Circuit found no error in the denial of the third-level reduction. Defendant was reticent to admit any wrongdoing when he first attempted to plead guilty. He shifted his version of events incrementally each time the court indicated that it was not satisfied that there was an adequate factual basis to accept a plea. On this record, the district court did not abuse its discretion in rejecting defendant’s plea. Since the government was then forced to prepare for trial, defendant’s later plea did not save it this task. U.S. v. Preciado, 336 F.3d 739 (8th Cir. 2003).
8th Circuit rejects acceptance reduction for defendant who denied knowledge of drugs found in his car. (488) Defendant repeatedly insisted during sentencing that he had no knowledge of the drugs found in the car he was driving, did not know who placed them there and was not paid or hired to transport them. The Eighth Circuit held that the district court did not err in finding that defendant’s conduct was inconsistent with acceptance of responsibility and in denying a reduction under § 3E1.1. U.S. v. Ortiz-Monroy, 332 F.3d 525 (8th Cir. 2003).
8th Circuit denies acceptance reduction where defendant lied to court at change of plea hearing. (488) Defendant argued that he should be granted an acceptance of responsibility reduction notwithstanding his motion to withdraw his guilty plea. He contended that he never denied that he was guilty of the offense, arguing that his motion to withdraw his plea was based upon his confusion about whether previous marijuana transactions outside the scope of the charged conspiracy would be attributed to him for sentencing. The district court found that defendant was not laboring under any confusion and that he had lied to the court at his change of plea hearing. The Eighth Circuit found that these findings were not clearly erroneous, and affirmed. U.S. v. Vaca, 289 F.3d 1046 (8th Cir. 2002).
8th Circuit denies reduction where defendant did not accept responsibility for full amount of drugs until second hearing. (488) The district court denied defendant an acceptance of responsibility reduction because he initially denied knowledge of and involvement with the drugs sold by Gonzalez and Magana, and denied that his co-defendants agreed to pay him $250 for the use of his apartment. It was not until his second sentencing hearing that defendant accepted responsibility for the full amount of drugs. Because a conscious attempt to mislead and minimize a defendant’s involvement is inconsistent with acceptance of responsibility, the Eighth Circuit affirmed the denial of the acceptance reduction. U.S. v. Carrasco, 271 F.3d 765 (8th Cir. 2001).
8th Circuit denies additional acceptance reduction because defendant caused government to prepare for trial. (488) Defendant challenged the district court’s decision to grant him only a two-level, as opposed to three-level, acceptance of responsibility reduction. The Eighth Circuit found no error. By communicating his intent to proceed to trial after petitioning to plead guilty, defendant caused the government to prepare for trial against him, even though he later changed his mind and pleaded guilty. U.S. v. Ortiz, 242 F.3d 1078 (8th Cir. 2001).
8th Circuit denies acceptance reduction for “brash” defendant who refused to assist in recovering jewelry. (488) Defendant submitted fraudulent credit applications under two different names with a jewelry store. Through the fraudulent accounts, defendant made eight separate purchases of jewelry with a total value of $109,180. Although defendant pled guilty and truthfully admitted his guilt to all relevant conduct, the Eighth Circuit ruled that he was not entitled to an acceptance of responsibility reduction. Defendant refused to assist in any way with the recovery of the jewelry that he obtained through his crimes. Furthermore, defendant’s statement at sentencing evidenced no remorse. His tone “was that of a spoiled child being refused something to which he believed he was entitled.” Following defendant’s “long and defiant statement” to the court, the district court found that defendant was “as brash and as arrogant as a defendant has ever appeared before me. He acts as if he ought to be given a medal for what he’s done here. He has absolutely no remorse for what he’s done, none.” U.S. v. Lim, 235 F.3d 382 (8th Cir. 2000).
8th Circuit finds plea not sufficiently timely to warrant additional acceptance reduction. (488) Defendant argued that he was entitled to a three-level acceptance of responsibility reduction because he immediately confessed the crime, admitted his culpability, and indicated his intent to plead guilty. However, the Eighth Circuit affirmed the denial of the reduction since defendant did not enter a timely guilty plea, and his plea agreement came too late to save the government or the court from preparing for trial. U.S. v. Searcy, 233 F.3d 1096 (8th Cir. 2000).
8th Circuit denies reduction where defendant did not complete court-ordered alcohol treatment program. (488) The government promised, as part of defendant’s plea agreement, to recommend an acceptance of responsibility reduction “unless there is significant evidence disclosed in the presentence investigation to the contrary.” At the time the government entered into the agreement, it was aware that defendant had not completed a court-ordered alcohol treatment program. The Eighth Circuit held that the government violated the terms of the plea bargain by failing to make the required recommendation. Nonetheless, remanding this case would be futile. The government’s failure to make an oral recommendation at sentencing had little if any effect on the court’s decision to deny the reduction. Because defendant’s crime of involuntary manslaughter involved intoxication, his failure to complete the alcohol treatment program amounted to evidence that he did not yet appreciate the gravity of his criminal conduct. His premature exit from the program violated a court order and served as grounds to terminate his conditional release. Given these circumstances, the court’s decision to deny the reduction was not “without foundation.” U.S. v. Goings, 200 F.3d 539 (8th Cir. 2000).
8th Circuit says court must grant additional acceptance reduction if timeliness requirements are met. (488) The probation officer testified that defendant denied ever manufacturing methamphetamine, and claimed that he was only holding chemicals and glassware in his storage shed for a friend. In light of this, the district court gave defendant only a two-level reduction for acceptance of responsibility, in order “to punish him a little bit” for not being candid with the probation officer. The Eighth Circuit held that the district court erred in applying § 3E1.1. A two-level reduction is available under § 3E1.1(a) if the court finds defendant accepted responsibility. No partial reduction is available for less than full acceptance. If a defendant received the two-level reduction and entered a timely guilty plea, then the defendant is automatically entitled to the additional one-point reduction under § 3E1.1(b)(2). A court cannot deny a defendant the additional one-point reduction because defendant did not fully accept responsibility. U.S. v. Rice, 184 F.3d 740 (8th Cir. 1999).
8th Circuit denies reduction where defendant attempted to blame crime on wife. (488) Defendant was convicted of 11 counts of bank fraud. The Eighth Circuit found no error in the district court’s denial of an acceptance of responsibility reduction. At sentencing, the defendant conceded that he had done the acts alleged, but attempted to blame his crimes on his wife. The district court could reasonably have determined that defendant did not truly accept his own responsibility for the crime. U.S. v. Ponec, 163 F.3d 486 (8th Cir. 1998).
8th Circuit denies reduction where defendant did not repay money owed. (488) Defendant originally was awarded more than $260,000 in life insurance proceeds paid on the death of her ex-husband. After the judgment was reversed on appeal, the district court ordered defendant to repay the proceeds to her ex-husband’s estate. Defendant did not comply and engaged in a series of transactions to conceal the remaining insurance proceeds from her stepson, a beneficiary of the estate. She pled guilty to bankruptcy fraud. The Eighth Circuit held that the district court did not err in refusing to award defendant an acceptance of responsibility reduction. Defendant refused to acknowledge that her stepson was the “victim” of her crime, and did not promptly reveal additional assets or offer to repay her ex-husband’s estate after judgment was entered against her more than four years earlier. U.S. v. Miller, 161 F.3d 977 (6th Cir. 1998).
8th Circuit finds entrapment defense inconsistent with acceptance of responsibility reduction. (488) Police seized eight ounces of methamphetamine and $5000 from defendant. As part of an effort to cooperate, defendant admitted he was carrying the methamphetamine and the cash at the time of his arrest. He later was convicted of drug charges despite his entrapment defense. He claimed that he should receive an acceptance of responsibility reduction solely because he admitted to the police that he engaged in the conduct underlying his conviction. The Eighth Circuit found that defendant’s entrapment defense was inconsistent with acceptance of responsibility. Because defendant claimed entrapment, he failed to demonstrate a recognition and affirmative responsibility for the offense and sincere remorse. U.S. v. Chevre, 146 F.3d 622 (8th Cir. 1998).
8th Circuit finds plea untimely even though government still had to prepare case against co-defendants. (488) Defendant pled guilty to drug charges the day of trial. He nonetheless claimed he was entitled to a three-level rather than a two-level acceptance of responsibility reduction for timely notifying authorities of his intent to plead guilty. He argued that because the government was also preparing similar cases involving substantially the same facts against his co-defendants, his lengthy delay in pleading did not cause the government to significantly squander its resources preparing for trial. The Eighth Circuit rejected this argument, reasoning that the presence of an additional defendant does not mean the government’s efforts to prepare for trial are duplicative, particular where, as here, the defendant is the purported leader of a criminal conspiracy. The charges against defendant were more numerous and substantial than those against his remaining co-defendants. His eleventh-hour plea did little to promote efficient allocation of the court’s resources because the court had to assume that defendant’s case would be tried and to schedule its docket accordingly. U.S. v. Brown, 148 F.3d 1003 (8th Cir. 1998).
8th Circuit denies acceptance reduction where defendant said misappropriated funds were loan. (488) Defendant, a county sheriff, took money collected by the sheriff’s department for local youth programs and spent it on personal items. Defendant also deposited business and personal funds to the account to replace the depleted funds. The Eighth Circuit held that defendant did not deserve an acceptance of responsibility reduction because had yet to acknowledge that he wrongfully appropriated the charity’s money. On appeal, he continued to characterize the misappropriated funds as a loan. U.S. v. Hawkey, 148 F.3d 920 (8th Cir. 1998).
8th Circuit denies additional point for acceptance of responsibility. (488) The district court granted defendant a two-level reduction under § 3E1.1 for acceptance of responsibility. Defendant argued that he was entitled to a three-level reduction under § 3E1.1(b). The Eighth Circuit approved the denial of the additional one point reduction. The district court noted that it was a “close question” whether to grant any § 3E1.1 reduction at all, since getting defendant’s cooperation was “like pulling teeth.” In order to receive the additional one-level reduction, defendant’s cooperation must have been offered in a timely manner, and the district court found that an offer to plead and cooperate on the morning of trial was not timely. U.S. v. Holt, 149 F.3d 760 (8th Cir. 1998).
8th Circuit holds denial of acceptance of responsibility reduction was not plain error. (488) Defendant argued for the first time on appeal that the district court erred by denying him a reduction for acceptance of responsibility. The Eighth Circuit held that the denial of the reduction was not plain error. While defendant initially confessed his involvement in the conspiracy, he later fought to suppress the confession and fled from custody during jury deliberations, remaining at large for almost six months and committing another felony during that time. After again admitting his involvement at the plea hearing upon returning, defendant attempted to minimize his role. U.S. v. Eads, 144 F.3d 1151 (8th Cir. 1998).
8th Circuit denies additional § 3E1.1(b) reduction where defendant did not plead guilty until morning of trial. (488) Defendant argued that the district court erred in failing to grant him a 3-level reduction for acceptance of responsibility. The Eighth Circuit held that defendant did not qualify for the § 3E1.1(b) reduction because he did not plead guilty until the morning of his first day of trial. By this time the government had prepared for trial, a jury was waiting to serve, and the district court had set aside two weeks on its docket for the trial. U.S. v. Ayers, 138 F.3d 360 (8th Cir. 1998).
8th Circuit upholds role increase and rejects § 3E1.1 reduction for minimizing role. (488) Defendant and others were arrested after one of the passengers in their car attempted to pass a counterfeit check. Police found twelve $100 bills in defendant’s pants and seventeen more in his shirt cuff. On the adjacent sidewalk, they found fifteen more counterfeit checks that contained defendant’s fingerprints. They also found a bank brochure with defendant’s fingerprints that listed the bank’s hours and branch locations. Defendant claimed he only joined the conspiracy that day after learning they had already passed three other checks, and that he agreed only to serve as a lookout. The Eighth Circuit upheld a § 3B1.1 leadership enhancement and denied a § 3E1.1 reduction for acceptance of responsibility. Transcripts of defendant’s phone conversations from jail with two co-conspirators showed his leadership role. During the conversations, defendant told the others how to tell their stories to the police to minimize his involvement. He also talked about killing an individual who had not done what he wanted and threatened prosecution witnesses if he ever got out of jail. Both co-conspirators appeared deferential to defendant. Moreover, the checks and proceeds were tied directly to defendant. U.S. v. Ngo, 132 F.3d 1231 (8th Cir. 1997).
8th Circuit finds plea not timely where defendant pled guilty only after conviction on related charges. (488) Defendant and his brother sought a HUD loan to establish a new business. To obtain the loan, HUD required defendants to obtain an additional $292,000 of private financing. Unable to obtain the funding, defendants entered into two different fraudulent schemes with two different bankers through which it would appear that they had obtained the necessary funding. The district court severed the counts and tried them separately. Defendant argued that he accepted responsibility by pleading guilty before the start of trial. The Eighth Circuit denied the reduction since defendant did not timely notify the government of his intention to plead guilty. Defendant went to trial on the counts arising from the other fraud. He denied the factual elements of his guilt, and did not plead guilty here until the jury found him guilty at the previous trial. U.S. v. Field, 110 F.3d 587 (8th Cir. 1997).
8th Circuit denies § 3E1.1 reduction where defendant claimed his actions were in best interests of city. (488) Defendant and his brother sought a HUD loan to establish a new business. To obtain the loan, HUD required defendants to obtain an additional $292,000 of private financing. Unable to obtain the funding, defendants entered into two different fraudulent schemes with two different bankers through which it would appear that defendants had obtained the necessary funding. The district court severed the counts and tried them separately. The Eighth Circuit affirmed the denial of a § 3E1.1 reduction since defendant went to trial on the counts relating to one fraud, did not agreed to plead guilty to the counts relating to the other fraud until the morning of the second trial, and continued to assert that his illegal acts were in the best interest of the city and that he broke the law “to satisfy the bureaucrats.” Although defendant’s voluntary payment of restitution before being found guilty might be evidence of acceptance of responsibility, the court did not abuse its discretion by denying the reduction. U.S. v. Field, 110 F.3d 592 (8th Cir. 1997).
8th Circuit rules defendant did not provide complete information about his offense. (488) Defendant asserted that he should have received a reduction of three levels rather than two levels for acceptance of responsibility because he timely provided complete information to the government concerning his own involvement in the offense. The Eighth Circuit upheld the court’s “implicit finding” that defendant did not provide the government with complete information about his involvement with the offense. At sentencing, defendant denied involvement in a particular cocaine transaction, even though the district court found defendant was involved with the sale. Defendant also refused to elaborate on other uncontested cocaine sales. U.S. v. Knight, 96 F.3d 307 (8th Cir. 1996).
8th Circuit rejects acceptance credit and affirms obstruction increase for denying connection to drugs. (488) A motel employee reported that several people had checked into the motel and appeared to be conducting drug transactions from their room and their auto. The car was registered to defendant. Defendant was apprehended in a traffic stop. Drugs were found on his person. A search of the motel room uncovered additional drugs and a gun. The Eighth Circuit upheld the denial of a § 3E1.1 reduction for acceptance of responsibility. Defendant did not satisfy any of the factors listed in § 3E1.1. Police discovered the gun and crack in the motel room without defendant’s assistance. Except for the crack police found hidden in defendant’s hat at his arrest, defendant continued to deny any connection to the drugs found in the hotel room. Defendant’s perjury at trial also warranted a § 3C1.1 obstruction of justice enhancement. The trial court found that several of defendant’s statements under oath were “outright fabrications.” U.S. v. Thomas, 93 F.3d 479 (8th Cir. 1996).
8th Circuit denies reduction where defendant distributed far more drugs than he admitted. (488) Defendant argued that he took responsibility for his offense by pleading guilty and admitting to the court that he distributed 3.5 kilograms of cocaine. The Eighth Circuit found no acceptance of responsibility because defendant distributed far more drugs than he admitted. An acceptance of responsibility reduction is properly denied where a defendant minimizes his role in drug activities. U.S. v. Campos, 87 F.3d 261 (8th Cir. 1996).
8th Circuit denies § 3E1.1 reduction where rape defendant claimed intercourse was consensual. (488) Defendant was convicted of aggravated sexual abuse and aiding and abetting aggravated sexual abuse. The Eighth Circuit upheld the denial of an acceptance of responsibility reduction because defendant consistently denied raping the victim and contended the intercourse was consensual. U.S. v. White Buffalo, 84 F.3d 1052 (8th Cir. 1996).
8th Circuit rejects § 3E1.1 reduction where defendant denied fraudulent intent. (488) Defendant was hired by General Mills to apply a pesticide to raw oats used in making cereal. Instead of purchasing an EPA‑approved pesticide, defendant purchased and used a cheaper product not approved by the EPA for use on raw oats. The Eighth Circuit denied an acceptance of responsibility reduction based on defendant’s refusal to admit that his actions were fraudulent. Defendant continued to contend that he believed the unapproved pesticide was a generic equivalent for the approved pesticide and that they could be freely substituted without effect. U.S. v. Roggy, 76 F.3d 189 (8th Cir. 1996).
8th Circuit denies § 3E1.1 reduction where defendant did not get immediate help for battered wife. (488) Defendant pled guilty to the voluntary manslaughter of his former wife. The Eighth Circuit denied a § 3E1.1 reduction based on evidence that defendant inflicted serious injury but did not seek immediate help for the victim, did not accompany the victim to the hospital, and had an extended history of domestic abuse against the victim. Moreover, the victim had previously been hospitalized due to defendant’s abuse, defendant had failed to attend domestic abuse classes as ordered by the court, defendant’s mother and sister did not get the victim to the hospital until the day after the beating, and defendant changed his story to police several times during the investigation. U.S. v. Keester, 70 F.3d 1026 (8th Cir. 1995).
8th Circuit says denial of § 3E1.1 reduction did not breach plea agreement. (488) Defendant pled guilty to sexual abuse of a minor. In the plea agreement, the government agreed to recommend a § 3E1.1 reduction, unless there was “significant evidence disclosed in the presentence investigation to the contrary.” The PSR disclosed that defendant told his probation office that he never touched the victim, and that he only agreed to plead guilty because his brother and sister would have testified against him. The Eighth Circuit affirmed the denial of the § 3E1.1 reduction, finding defendant was not entitled to specific performance of the plea agreement. The government was not required to recommend the reduction because of the contrary information revealed in the PSR. U.S. v. Janis, 71 F.3d 308 (8th Cir. 1995).
8th Circuit says plea after preliminary hearing and motion to dismiss was not timely. (488) Defendant challenged the district court’s refusal to grant him an additional one level acceptance of responsibility reduction. The Eighth Circuit upheld the district court’s finding that defendant’s plea was not timely. Defendant did not plead guilty until after the government participated in a preliminary hearing and a hearing on defendant’s motion to dismiss, and spent three months preparing for defendant’s trial. U.S. v. Toledo, 70 F.3d 988 (8th Cir. 1995).
8th Circuit denies role and acceptance reductions where jury rejected claim that defendant innocently possessed gun. (488) Defendant was a passenger in a car stopped by police. The officers found a gun protruding from underneath defendant’s left leg. Defendant testified that as the car was being pulled over, the driver pulled the gun from his pocket and shoved it toward defendant, telling defendant to hide it. Defendant further testified that he did not move, hide or even touch the gun, although he later admitted that the gun was touching his leg. He was convicted of being a felon in possession of a firearm. The Eighth Circuit upheld the denial of a mitigating role adjustment under § 3B1.2 and an acceptance of responsibility reduction under § 3E1.1. Defendant’s claims were based upon the assumption that the facts were as he claimed. The court’s findings were not clearly erroneous. U.S. v. Ali, 63 F.3d 710 (8th Cir. 1995).
8th Circuit says plea on morning of trial and providing information after receiving immunity was not timely. (488) Defendant argued that the district court erred by denying him an additional one-level reduction for acceptance of responsibility under § 3E1.1(b). The Eighth Circuit disagreed, finding defendant did not timely provide information to the government about his role in the offense or timely notify the government of his intent to plead guilty. Defendant did not provide the government with information regarding his role in the offense until after he had both pled guilty and received use immunity through his proffer agreement. At that time, both the investigation and defendant’s prosecution were effectively completed. Defendant pled guilty the morning of his scheduled trial date and did not notify the government of his intent to do so until the previous Friday. By then, the government had essentially completed its trial preparation. U.S. v. Thompson, 60 F.3d 514 (8th Cir. 1995).
8th Circuit rejects acceptance of responsibility reduction for defendant who denied conduct. (488) Defendant argued that he accepted responsibility by pleading guilty (although two weeks into trial) and stating in his PSR that he regretted being involved in illegal activities and accepted responsibility for his conduct. The Eighth Circuit upheld the denial of the reduction since defendant denied responsibility for certain relevant conduct making up his offense of conviction, and was not forthright regarding his role in the offense. U.S. v. Skorniak, 59 F.3d 750 (8th Cir. 1995).
8th Circuit says settling lawsuit before trial was not payment of restitution. (488) Defendant fraudulently received disability insurance benefits. He argued that he accepted responsibility by settling his civil lawsuit with the carrier before his criminal trial and making full restitution to the carrier under the settlement agreement. The Eighth Circuit held that paying restitution to settle a civil lawsuit does not constitute a voluntary payment of restitution under note 1(c) to § 3E1.1. Moreover, defendant put the government to their burden of proof at trial. He maintained throughout his trial that he did not stage the car collision that “caused” his disability, and that his disability was genuine. U.S. v. Irons, 53 F.3d 947 (8th Cir. 1995).
8th Circuit denies acceptance of responsibility reductions to three drug defendants. (488) The Eighth Circuit affirmed the denial of acceptance of responsibility reductions to three defendants in a drug operation. The district court doubted the truth of the first defendant’s account of her role in the offense and concluded that she knew more about her co-conspirator’s drug activities than she admitted. The second defendant failed to timely acknowledge past crimes he committed under an alias. The third defendant gave statements to the probation officer minimizing his role in the drug activities. There were also substantial discrepancies between the information this defendant supplied to the probation officer and the information contained in his plea agreement. U.S. v. Evans, 51 F.3d 764 (8th Cir. 1995).
8th Circuit denies reduction to defendant who admitted underlying facts but denied mens rea. (488) Defendant was convicted of second degree murder. He argued that he deserved an acceptance of responsibility reduction because he offered to plead guilty to assault and did not contest the underlying facts giving rise to his offense. The Eighth Circuit held that defendant did not deserve the reduction because he refused to admit that he acted with the required mens rea for second degree murder. Defendant never accepted responsibility for second degree murder. Acceptance of responsibility for assault was insufficient to warrant the decrease. U.S. v. Willard Makes Room for Them, 49 F.3d 410 (8th Cir. 1995).
8th Circuit holds that insanity defense is not inconsistent with acceptance of responsibility. (488) Defendant was convicted of threatening to kill the President of the United States. He requested a reduction for acceptance of responsibility, since he never denied making the statements, but went to trial to resolve matters relating to his competency and to raise an insanity defense. The district court concluded that the insanity defense is inconsistent with acceptance of responsibility. The Eighth Circuit disagreed, holding that an insanity defense does not preclude a defendant from receiving a reduction for acceptance of responsibility. Under note 2, in rare situations a defendant may clearly demonstrate acceptance of responsibility even though he exercises his right to trial, such as when he goes to trial to assert and preserve issues unrelated to factual guilt. In such a situation, a determination that the defendant has accepted responsibility will be based primarily on pre-trial statements and conduct. U.S. v. Barris, 46 F.3d 33 (8th Cir. 1995).
8th Circuit denies acceptance reduction where defendant never admitted his actions were wrong. (488) Defendant was convicted of 23 counts of mail fraud and one count of conspiracy. At trial, defendant maintained he had no involvement in the scheme masterminded by his partners. The 8th Circuit upheld the district court’s denial of a reduction for acceptance of responsibility. Defendant never admitted that any of his actions were wrong. U.S. v. Behr, 33 F.3d 1033 (8th Cir. 1994).
8th Circuit rejects additional reduction where defendants did not plead guilty until after first trial. (488) Defendants were originally convicted of three drug charges. The convictions were reversed because of prejudicial testimony about their ethnic background. On remand, each defendant pled guilty to one drug charge. They received a two level acceptance of responsibility reduction, but contended they were entitled to an additional one point reduction because they gave timely notice of their intent to plead guilty. The 8th Circuit disagreed that the notice was timely. It did not save the government much effort, since the bulk of the government’s preparation was for the initial trial. U.S. v. Vue, 38 F.3d 973 (8th Cir. 1994).
8th Circuit denies reduction where defendant admitted physical attack but denied sexual attack. (488) Defendant was convicted of assault with a dangerous weapon, aggravated sexual abuse and kidnapping. The 8th Circuit upheld the denial of an acceptance of responsibility reduction given that defendant admitted a physical assault on the victim but steadfastly denied the sexual attack. U.S. v. Farmer, 32 F.3d 369 (8th Cir. 1994).
8th Circuit upholds denial of reduction for not timely notifying authorities of guilty plea. (488) Defendant challenged the district court’s refusal to grant a reduction for acceptance of responsibility. The 8th Circuit found no error. The district court found that defendant did not timely provide complete information to the government concerning his own involvement in the offense and did not timely notify authorities of his intention to enter a guilty plea, which would have allowed the government to avoid trial preparation and the court to allocate its resources efficiently. There was ample foundation for the decision. U.S. v. Yell, 18 F.3d 581 (8th Cir. 1994) No. 93-1363.
8th Circuit denies 3-level reduction for defendant who pled guilty on eve of second trial. (488) Defendant argued that he deserved a three-level reduction for acceptance of responsibility because he timely provided information and timely notified the government of his intention to plead guilty. The 8th Circuit rejected defendant’s claim that he was timely under subsection (b)(1) of §3E1.1. He did not disclose information to authorities until the presentence interview. Requiring the self-incriminating information to be provided earlier did not violate his 5th Amendment right to remain silent. He also did not meet the timeliness requirements of subsection (b)(2). He did not notify the government of his intent to plead guilty until the day before the second trial. A previous trial had ended in mistrial. Although the court was able to substitute another trial at the last minute, defendant’s decision to plead did not contribute to efficient trial scheduling. U.S. v. McQuay, 7 F.3d 800 (8th Cir. 1993).
8th Circuit denies additional reduction where defendant lied about drug source and did not plead guilty until trial date. (488) The 8th Circuit held that defendant was not entitled to an additional one level reduction for acceptance of responsibility. She lied to the government about the source of crack cocaine found in her apartment and did not plead guilty or file her plea agreement until the scheduled trial date, after denial of her numerous pretrial motions. U.S. v. Patterson, 11 F.3d 824 (8th Cir. 1993).
8th Circuit rejects acceptance of responsibility reduction where defendant believed his conduct was justified. (488) Defendant pled guilt to concealing assets from a bankruptcy trustee. The 8th Circuit affirmed the denial of a reduction for acceptance of responsibility, even though defendant gave a voluntary statement to the FBI, pled guilty to his offense, and admitted his illegal conduct. Although defendant admitted to the acts of concealment, he apparently believed that because of his dispute with the trustee, his conduct was justified. U.S. v. Little, 990 F.2d 1090 (8th Cir. 1993).
8th Circuit denies reduction where defendant referred to prosecution as “witch hunt.” (488) The 8th Circuit found a sufficient basis for the district court’s denial of a reduction for acceptance of responsibility, where defendant referred to the government’s prosecution as “a witch hunt” and added that he “was forced into a position in which [he] had no choice but to go this long.” U.S. v. Ransom, 990 F.2d 1011 (8th Cir. 1993).
8th Circuit denies acceptance of responsibility reduction for defendants involved in fraud scheme. (488) Defendants fraudulently exchanged mislabeled computer parts for new parts as part of a computer company’s exchange program. The 8th Circuit affirmed that they did not accept responsibility for their conduct. One defendant continued to maintain his innocence. A second defendant failed to meet with the probation officer and denied criminal conduct, insisting he engaged only in a deceptive and sharp business practice. A third defendant continued to allege that he had an insignificant role in the scheme, despite his conviction. Defendants’ admission that they switched labels and made restitution to the company did not translate into a finding of acceptance of responsibility. U.S. v. Nelson, 988 F.2d 798 (8th Cir. 1993).
8th Circuit denies 3-level reduction to defendant who pled guilty on eve of trial. (488) The 8th Circuit found no error in the district court’s failure to consider whether defendant was entitled to a three-level reduction for acceptance of responsibility. To receive the reduction, a defendant must either timely provide complete information to the government concerning his involvement in the offense, or must quickly notify the government of his intent to plead guilty so it need not prepare for trial. Here, defendant did not plead guilty until the eve of trial, after his numerous pre-trial motions had been denied. In addition, there was no showing that he timely provided complete information as to his involvement in the offense. U.S. v. Nomeland, 7 F.3d 744 (8th Cir. 1993).
8th Circuit reverses because date of plea agreement was used to determine applicable guidelines. (488) Defendant sought a three-level reduction for acceptance of responsibility for notifying the government of his intent to plead guilty before the government began to prepare for trial. The district court granted a two-level reduction, but rejected the three-level reduction because defendant pled guilty before the effective date of the amendment which created that reduction. The 8th Circuit reversed, holding that the date of sentencing, not the date of the plea, determines the applicable guidelines. The three-level reduction in section 3E1.2(b)(2) was in full force and effect when defendant was sentenced, and therefore the district court should have considered whether defendant met the criteria for the additional reduction. U.S. v. Cassidy, 6 F.3d 554 (8th Cir. 1993).
8th Circuit rejects three level reduction because defendant did not timely assist authorities. (488) The 8th Circuit rejected defendant’s claim that he should have received a three-level rather than a two-level acceptance of responsibility reduction based on his confessions to the government. The record showed that the authorities had recovered the stolen money and had already prepared for trial before defendant confessed and pled guilty. Thus, defendant did not timely assist authorities in the investigation or prosecution of his own misconduct, as required by section 3E1.1(b). U.S. v. Schau, 1 F.3d 729 (8th Cir. 1993).
8th Circuit says prosecutor’s refusal to negotiate plea agreement did not entitle defendant to acceptance of responsibility reduction. (488) Defendant argued that he was entitled to a reduction for acceptance of responsibility because the prosecutor refused to negotiate a plea agreement in a “fair and reasonable manner.” The 8th Circuit rejected this argument, since a defendant has no right to a plea bargain. Defendant refused to accept responsibility for his crimes, telling an investigator that “I’m a small-time hustler, not this.” U.S. v. Mabry, 3 F.3d 244 (8th Cir. 1993), abrogation on other grounds recognized by U.S. v. Sheppard, 219 F.3d 766 (8th Cir. 2000).
8th Circuit denies acceptance of responsibility for defendant who pled guilty but minimized role in offense. (488) Defendant offered to cooperate with the government in future investigations, pled guilty to drug offenses, and “accepted responsibility” for dealing over 500 grams of cocaine, but he also stated that he personally delivered only a small quantity of cocaine, a position inconsistent with the presentence report. The district court found that defendant had not accepted responsibility for his offense. The 8th Circuit found no abuse of discretion. U.S. v. Hipolito-Sanchez, 997 F.2d 594 (8th Cir. 1993).
8th Circuit denies acceptance of responsibility where defendant refused to admit rape. (488) Defendant was convicted of forcibly raping a 15-year old girl. The 8th Circuit upheld the denial of a reduction for acceptance of responsibility, where defendant continued to maintain that he did not forcibly rape the victim. U.S. v. Yankton, 986 F.2d 1225 (8th Cir. 1993).
8th Circuit denies acceptance reduction where defendant denied guilt and said police lied at trial. (488) The 8th Circuit affirmed the denial of a reduction for acceptance of responsibility where during and after trial, defendant denied her guilt and asserted law enforcement officers lied at trial. U.S. v. Aldridge, 985 F.2d 960 (8th Cir. 1993).
8th Circuit notes defendant’s failure to assist in search. (488) The district court denied defendant an adjustment for acceptance of responsibility in part because the defendant did not voluntarily disclose the location of all the counterfeit currency in his home when police executed a search warrant. The 8th Circuit approved consideration of this factor. The district court also based its decision on the defendant’s efforts to obstruct justice and defendant’s failure to be “completely truthful” regarding his involvement in the crime. U.S. v. Armstrong, 992 F.2d 171 (8th Cir. 1993).
8th Circuit denies acceptance of responsibility reduction for untimely and limited admissions. (488) The 8th Circuit affirmed the denial of a reduction for acceptance of responsibility based upon (a) the timeliness of defendant’s admission of his involvement, (b) the fact that defendant admitted to the probation officer only the facts brought out at trial, and (c) the fact that defendant never volunteered any information relating to his involvement in the conspiracy. U.S. v. Adipietro, 983 F.2d 1468 (8th Cir. 1993).
8th Circuit denies reduction where defendant illegally reentered U.S. seven times. (488) Defendant pled guilty to illegally reentering the United States after being deported. In denying defendant a reduction for acceptance of responsibility, the district court credited the probation officer’s recommendation against such a reduction, and expressed concern about defendant’s long history of repeated illegal entries into the United States. (He was involved in at least seven prior immigration offenses.) The 8th Circuit affirmed, finding the district court properly considered defendant’s past conduct as well as his contemporaneous conduct, and judged his credibility and sincerity. A defendant’s past failure to accept responsibility as well as any “demonstrated propensity” to repeatedly commit the same crime can be considered by the court in evaluating a present claim of contrition. U.S. v. Rodriguez, 979 F.2d 138 (8th Cir. 1992).
8th Circuit affirms that defendant did not accept responsibility for lying during gun purchase. (488) Defendant was convicted of making a false statement in connection with the purchase of a firearm. At his plea hearing, he testified that while intoxicated, he and a friend entered a pawnshop so that his friend could purchase a gun, but that because his friend did not have a driver’s license, defendant purchased the gun for him. He said on the form that he was not a convicted felon, but he did not think that this lie would get him into trouble. He said that when his friend talked about shooting himself and others, defendant realized he had made a mistake and threw the gun in a trash can. He then called his friend’s mother and told her to come and get her son. The mother called the police, who retrieved the gun from the trash can. At sentencing, defendant testified to the same basic story, but was contradicted by the pawnshop owner. The 8th Circuit affirmed that defendant’s actions did not show acceptance of responsibility. U.S. v. Lewis, 978 F.2d 453 (8th Cir. 1992).
8th Circuit denies acceptance of responsibility reduction to defendant who denied involvement in conspiracy. (488) The district court denied defendant a reduction for acceptance of responsibility under section 3E1.1 since he continued to deny the existence of the conspiracy for which he was convicted. The 8th Circuit affirmed that this was not an abuse of discretion. U.S. v. Rowley, 975 F.2d 1357 (8th Cir. 1992).
8th Circuit denies acceptance of responsibility for refusal to admit violence in assault. (488) Defendant was convicted of assaulting an IRS agent. He challenged an enhancement under section 2A2.4(b)(1) for assaults involving physical contact, contending that although he had grabbed the agent’s clothes, he never struck the agent. The court, however, credited the agent’s testimony that defendant had struck the agent from behind. The 8th Circuit affirmed that defendant’s refusal to admit the degree of violence in his assault was grounds for denying him a reduction for acceptance of responsibility. Moreover, the trial judge stated that he would have imposed the same the same sentence even if defendant had received the acceptance of responsibility reduction. U.S. v. Wollenzien, 972 F.2d 890 (8th Cir. 1992).
8th Circuit denies credit for acceptance of responsibility where defendant denied guilt until convicted. (488) Defendant, an attorney, was found guilty of bankruptcy fraud and conspiracy to commit bankruptcy fraud. The 8th Circuit affirmed the district court’s decision to deny defendant a reduction for acceptance of responsibility. Prior to being found guilty by a jury, defendant denied any intent to defraud creditors. Only after the jury returned its guilty verdict did defendant voluntarily relinquish his license to practice law and state that he accepted the jury’s verdict and thought it correct. It was not error to deny the reduction based upon defendant’s refusal to admit an essential element of bankruptcy fraud before his conviction. U.S. v. Edgar, 971 F.2d 89 (8th Cir. 1992).
8th Circuit denies acceptance of responsibility reduction to defendant who only admitted partial involvement. (488) The 8th Circuit affirmed the district court’s denial of a reduction for acceptance of responsibility. Defendant only admitted partial involvement in the conspiracy and only to a limited portion of the methamphetamine manufactured. He initially declined to discuss his involvement in the case and later admitted cooking only seven pounds of methamphetamine. This was much less than the amount established at trial. Additionally, defendant denied being in Kansas City to negotiate the purchase of laboratory equipment. U.S. v. Stockton, 968 F.2d 715 (8th Cir. 1992).
8th Circuit denies acceptance of responsibility to defendant who admitted assault but claimed it was in self-defense. (488) The 8th Circuit rejected defendant’s claim that his admission that he assaulted his victim entitled him to a reduction for acceptance of responsibility. Defendant never admitted criminal responsibility, contending he committed the assault in self-defense. He never admitted his guilt or demonstrated sincere remorse for his conduct. Despite the jury’s rejection of the self-defense claim, he continued to press it on appeal. U.S. v. Waloke, 962 F.2d 824 (8th Cir. 1992).
8th Circuit affirms denial of acceptance of responsibility reduction for minimizing role at sentencing. (488) The district court found that defendant lied at sentencing by minimizing his role and because his testimony varied from the testimony of government witnesses in several material respects. The court then imposed an enhancement for obstruction of justice and denied defendant a reduction for acceptance of responsibility. The 8th Circuit affirmed. In denying the reduction, the district court stated it was not relying upon the fact that defendant testified untruthfully, but that it was convinced, based on the sentencing hearing, that defendant did not accept responsibility for his criminal conduct. U.S. v. Flores, 959 F.2d 83 (8th Cir. 1992).
8th Circuit denies acceptance of responsibility reduction to defendant who minimized his guilt. (488) Defendant pled guilty to four counts of suborning perjury. The 8th Circuit upheld the denial of a reduction for acceptance of responsibility since when he initially pled guilty, he minimized his guilt to such an extent that the district court initially refused to accept his plea. Defendant denied having provided the name of a lying witness to his lawyer, stated that he was unsure how the lawyer came to know of the witness, and denied that he told the witness to perjure herself. When the district court refused to accept defendant’s guilty plea, defendant conferred with his attorney, and then admitted that he and the witness combined their efforts to present false testimony. The combination of defendant’s initial evasiveness and the absence of any expression of remorse or admission of responsibility supported the denial of the reduction. U.S. v. Lincoln, 956 F.2d 1465 (8th Cir. 1992).
8th Circuit denies acceptance of responsibility reduction to marijuana grower. (488) The 8th Circuit affirmed the district court’s denial of a reduction for acceptance of responsibility where the district court stated “I believe you stand before me today believing that the whole world is wrong, that you have a right to grow on your land marijuana if you wish to.” U.S. v. Ulrich, 953 F.2d 1082 (8th Cir. 1991).
8th Circuit denies acceptance of responsibility reduction to defendant who provided excuses for his crime. (488) The 8th Circuit found no error in the district court’s denial of a reduction for acceptance of responsibility. Defendant had provided a number of excuses for his failure to appear offense, including fear of prison, car problems, death threats, temporary insanity and misinformation from his attorney. Although defendant submitted a letter to the district court asserting that “nobody is responsible for me not showing up, but me,” this did not entitle him to the reduction. U.S. v. Burnett, 952 F.2d 187 (8th Cir. 1991).
8th Circuit rejects acceptance of responsibility reduction for defendant who did not recall committing the offense. (488) Defendant pled guilty to sexual abuse, but told the probation officer that he was intoxicated at the time of the offense, did not recall what actually happened, and had difficulty believing that had committed the offense. Defendant told the court, “[i]f I did anything, I’m sorry . . . [b]ut I can’t change the past.” The 8th Circuit affirmed the denial of credit for acceptance of responsibility, finding defendant did not meet his burden of proving facts supporting such a reduction. U.S. v. Drapeau, 943 F.2d 27 (8th Cir. 1991).
8th Circuit holds that defendant’s lack of assistance may be used in evaluating acceptance of responsibility. (488) At the hearing, defendant testified that he did not plan to cooperate with law enforcement officials. The then-effective Commentary to guideline § 5K1.2 established that a defendant’s lack of assistance may be used in evaluating the defendant’s sincerity in claiming acceptance of responsibility. Accordingly, the 8th Circuit found no error in the district court’s denial of a reduction for acceptance of responsibility. U.S. v. Streeter, 907 F.2d 781 (8th Cir. 1990), overruled on other grounds by U.S. v. Wise, 976 F.2d 393 (8th Cir. 1992).
8th Circuit finds no acceptance of responsibility where defendant tried to justify her drug dealing. (488) Defendant claimed that the trial court erred in failing to reduce her offense level by two points for acceptance of responsibility under § 3E1.1. The 8th Circuit disagreed, finding that the defendant’s refusal to supply information about others and the failure to acknowledge the sizable quantity of drugs justified the enhancement. The court also found that the defendant attempted to justify her drug dealing by stating it was her only means of supporting her children. The court found that these statements did not indicate sincere remorse for her actions. U.S. v. Baker, 907 F. 2d 53 (8th Cir. 1990).
8th Circuit holds that defendant’s past failure to accept responsibility and his propensity for flight were properly considered. (488) Defendant argued that his flight from Guam 7 years earlier after using his position to steal $350,000 in food stamps was irrelevant to the court’s assessment of his present acceptance of responsibility. The 8th Circuit disagreed, ruling that his “past failure to accept responsibility for his criminal conduct, and his demonstrated propensity for flight, properly could be considered by the sentencing court in evaluating [his] present claim of contrition.” Moreover, the court properly considered his conduct during the commission of the escape even though it was part of the offense. U.S. v. Evidente, 894 F.2d 1000 (8th Cir. 1990).
8th Circuit rejects acceptance of responsibility reduction because defendant refused to admit extent of his involvement in drug scheme. (488) Although defendant pled guilty, the 8th Circuit found that he was not entitled to a reduction for acceptance of responsibility. Despite evidence to the contrary, defendant “steadfastly” refused to admit the extent of his involvement in a drug distribution scheme or the volume of drugs involved. U.S. v. Contreras, 927 F.2d 1058 (8th Cir. 1991).
8th Circuit finds that defendant who admitted crime was a mistake did not accept responsibility. (488) Defendant struck and killed a pedestrian, and was convicted of involuntary manslaughter. The 8th Circuit upheld the district court’s determination that defendant was not entitled to a sentence reduction based on acceptance of responsibility, since the district court found that defendant admitted only that his behavior was a “mistake.” U.S. v. Cree, 915 F.2d 352 (8th Cir. 1990).
8th Circuit finds that defendant who committed offense at insistence of husband not entitled to reduction for acceptance of responsibility. (488) Defendant, who assisted her husband in escaping federal custody, claimed she was entitled to a reduction for acceptance of responsibility. Defendant pled guilty and did express some remorse. She also claimed that her crime was the result of the domination of her husband. The 8th Circuit upheld the district court’s finding that defendant had not accepted responsibility, noting that her guilty plea was also the product of her husband’s wishes. U.S. v. Dugan, 912 F.2d 942 (8th Cir. 1990).
8th Circuit holds acceptance of responsibility was properly denied despite professed regret. (488) The 8th Circuit held that it was not clearly erroneous for the district court to deny a drug defendant an acceptance of responsibility reduction despite his professed regret. The defendant had stated “I stand before this court a broken man. Cocaine took over my life. I’m ashamed of what I’ve done. I want to get on with this and get back to my family.” U.S. v. Smitherman, 889 F.2d 189 (8th Cir. 1989).
9th Circuit upholds denial of acceptance based on cross-examination of government witness at trial. (488) Defendant was convicted at trial of reentering the U.S. after deportation, in violation of 8 U.S.C. § 1326. At sentencing, he sought a two-point adjustment in offense level for acceptance of responsibility on the ground that prior to trial he had admitted that he was a Mexican citizen who had previously been deported from the U.S. The district court declined to grant this reduction. On appeal, the Ninth Circuit held that the district court had not committed clear error because it had considered defendant’s cross-examination of the government agent who witnessed his prior removal and thereby made a “frivolous challenge to the evidence supporting an element of the offense.” U.S. v. Rojas-Pedroza, 716 F.3d 1253 (9th Cir. 2013).
9th Circuit says pretrial admission of elements not enough for acceptance credit. (488) When arrested crossing the border, defendant admitted that he was guilty of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. Defendant later decided to go to trial, and he was convicted of violating § 1326. After trial, defendant sought a two-level reduction in offense level under § 3E1.1 for acceptance of responsibility. The district court declined to grant the reduction because defendant vigorously contested his guilt at trial by arguing that his prior deportation was invalid. The Ninth Circuit held that the district court properly denied the reduction despite defendant’s admission of the elements of the offense when he was arrested. U.S. v. Ramos-Medina, 682 F.3d 852 (9th Cir. 2012), opinion amended and superseded on denial of rehearing en banc by U.S. v. Ramos-Medina, 706 F.3d 932 (9th Cir. 2013).
9th Circuit upholds denial of acceptance adjustment after plea withdrawal and trial. (488) Defendant pleaded guilty to alien smuggling. At sentencing, defendant successfully withdrew his plea when he learned of the sentence that the district court intended to impose. At trial, defendant asserted a duress defense, but the jury convicted him. At his renewed sentencing hearing, the district court declined to award defendant a two-level adjustment for acceptance of responsibility. The Ninth Circuit found that the district court had not erred in denying the adjustment to a defendant who withdrew his plea only after learning the sentence that he would have received and asserting a duress defense at trial. U.S. v. Molina, 596 F.3d 1166 (9th Cir. 2010).
9th Circuit rejects acceptance adjustment for admission that house contained child porn. (488) When police officers arrived with a warrant to search defendant’s home for child pornography, they asked defendant whether they would find child pornography in the house. Defendant replied, “yeah.” After a trial, he was convicted of offenses related to his possession of child pornography. At sentencing, he argued that he should receive a downward adjustment for acceptance of responsibility because of his answer to the police when they came to search his house. The Ninth Circuit upheld the district court’s decision because defendant failed to accept responsibility for any of his conduct. U.S. v. Schales, 546 F.3d 965 (9th Cir. 2008).
9th Circuit says presenting duress defense at trial does not foreclose acceptance reduction. (488) Defendant was one of four men found on a boat containing 1,300 kilograms of cocaine. Prior to trial, defendant gave extensive statements to the government concerning his presence on the boat. At defendant’s trial for possession of cocaine on a vessel subject to the jurisdiction of the United States, in violation of 26 U.S.C. App. § 1903, defendant presented a duress defense. The jury rejected this defense and convicted defendant. At sentencing, the district court gave defendant a two-point reduction for acceptance of responsibility under § 3E1.1 on the ground that defendant accepted responsibility by giving pretrial statements to the government and had not denied the “essential factual elements” of the offense by presenting a duress defense at trial. The Ninth Circuit agreed that a duress defense does not foreclose a defendant who goes to trial from receiving an acceptance-of-responsibility reduction in offense level. U.S. v. Gamboa-Cardenas, 508 F.3d 491 (9th Cir. 2007).
9th Circuit says timely guilty plea requirement does not deprive defendant of effective assistance. (488) 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 says that contrite defendant who goes to trial may get acceptance reduction. (488) The acceptance-of-responsibility guideline, § 3E1.1, states that in “rare situations a defendant may clearly demonstrate an acceptance of responsibility…even though he exercises his constitutional right to a trial.” The district court denied an acceptance reduction to a defendant because he went to trial and contested his guilt. The Ninth Circuit held that the acceptance reduction is available to a defendant who manifests genuine contrition for his acts but nonetheless contests his factual guilt at trial. The court upheld the denial of the acceptance adjustment, however, because defendant had not truthfully admitted his conduct. U.S. v. Cantrell, 433 F.3d 1269 (9th Cir. 2006).
9th Circuit finds plain error in failure to give third acceptance point to alien who admitted illegal reentry at arrest. (488) When arrested for illegal re-entry after deportation, defendant admitted to an immigration officer that he was a Mexican citizen, that he had previously been deported, and that he did not have permission to be in the U.S. Despite these admissions, defendant went to trial and was convicted of violating 8 U.S.C. § 1326. At sentencing, the district court gave defendant a two-point reduction for acceptance of responsibility, but declined to give a third point because his acceptance was not timely. The Ninth Circuit held that defendant was entitled to the third point and that the district court’s failure to award it to defendant was plain error. U.S. v. Rodriguez-Lara, 421 F.3d 932 (9th Cir. 2005).
9th Circuit says offer to enter conditional guilty plea did not show acceptance of responsibility. (488) Prior to trial, defendant offered to enter a conditional guilty plea preserving his challenge to a search warrant. The government apparently rejected that offer, and defendant was convicted after trial. At sentencing, defendant argued that he was entitled to an acceptance-of-responsibility adjustment because he had offered to enter the conditional plea. The district court denied the adjustment, and the Ninth Circuit affirmed, finding that defendant had never admitted that he committed the crime or expressed remorse. U.S. v. Nielsen, 371 F.3d 574 (9th Cir. 2004).
9th Circuit holds that post-trial acceptance cannot form basis for acceptance adjustment. (488) Defendant argued at trial that he lacked the specific intent to commit the charged offense. He nevertheless sought an adjustment under § 3E1.1 for acceptance of responsibility on the ground that his decision to contest his factual guilt at trial did not preclude him from showing acceptance of responsibility after trial. The Ninth Circuit held that acceptance of responsibility during sentencing following a trial “may not properly form the basis for a downward adjustment under § 3E1.1.” U.S. v. Martinez-Martinez, 369 F.3d 1076 (9th Cir. 2004).
9th Circuit finds that contesting factual guilt at trial does not preclude acceptance reduction. (488) Defendant moved to dismiss the carjacking indictment against him on the ground that the carjacking statute violated the Commerce Clause. The district court denied this motion, defendant proceeded to trial, and the jury convicted him. At sentencing, the court denied defendant an acceptance reduction, finding that defendant had not gone to trial merely to preserve his constitutional issue and instead had contested the government’s showing of intent at trial. The Ninth Circuit held that a defendant could not be denied an acceptance reduction merely because he put the government to its burden of proof at trial. It remanded for a determination whether defendant had accepted responsibility notwithstanding his decision to go to trial. U.S. v. Cortes, 299 F.3d 1030 (9th Cir. 2002).
9th Circuit holds acceptance credit cannot be denied for moving to suppress statement and going to trial. (488) 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, en banc, requires third level for acceptance despite backtracking on confession. (488) Defendant argued that the district court erred by failing to award him a third point for acceptance of responsibility under § 3E1.1(b)(1) because he confessed on the day of his arrest. The government argued that defendant was not entitled to the third point because he backtracked by the time of the trial. The Ninth Circuit held that this argument was foreclosed by its recent decision in U.S. v. Blanco-Gallegos, 188 F.3d 1072 (9th Cir. 1999). In that case, on similar facts, the Ninth Circuit indicated that regardless of recanting and forcing the government to prepare for trial (which go to the question of whether a two point reduction is appropriate under § 3E1.1(a)), the only question with respect to the third point is timeliness and completeness of defendant’s statement. Accordingly, the panel reversed the district court’s denial of the additional one point reduction, and on rehearing, the en banc court adopted this portion of the panel’s opinion, reported at 192 F.3d 926 (9th Cir. 1999). U.S. v. Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir. 2000) (en banc).
9th Circuit requires third level for acceptance where confession was timely and complete. (488) Defendant was arrested for reentering the United States after deportation in violation of 8 U.S.C. § 1326. At the time of his arrest, defendant made a complete confession. However, he did not plead guilty, and was convicted after a jury trial. At sentencing, the judge reduced his sentence by two levels for acceptance of responsibility but refused to give him the third level under § 3E1.1(b), even though that additional reduction depends only on “whether the confession was complete and timely.” On appeal, the government conceded that the district court erred in denying the third level. Because the district court plainly found that defendant’s confession was both timely and complete, the court reversed the district court’s denial of the additional one level reduction. U.S. v. Mateo-Mendez, 215 F.3d 1039 (9th Cir. 2000).
9th Circuit finds no acceptance of responsibility where defendant presented a complex and elaborate defense. (488) Defendant presented a “complex and elaborate defense, challenging both the legal validity of the government’s theory of the case and his factual guilt.” Although a defendant who goes to trial in order to challenge the legal validity of the government’s theory may, in some cases, be eligible for a reduction of the offense level based on acceptance of responsibility, the Ninth Circuit ruled that “the district court did not clearly err in concluding that this was not such a case.” U.S. v. Hicks, 217 F.3d 1038 (9th Cir. 2000).
9th Circuit denies acceptance credit where defendant claimed he acted “with an empty head but a pure heart.” (488) Defendant was convicted of endeavoring to influence a federal district judge, in violation of 18 U.S.C. § 1503. At sentencing he said he was sorry that he didn’t “use wisdom” and that he had no intention of impeding justice or attempting to influence the judge by his conduct. The district court denied credit for acceptance of responsibility and on appeal, the Ninth Circuit affirmed. The court noted that even after his conviction, defendant “maintained that he acted with an empty head but a pure heart.” In stating that he did not intend to influence the judge, defendant “denied an element of the offense of which he was convicted.” Thus, the district court did not clearly err in concluding that he did not accept responsibility for his offense. U.S. v. Fleming, 215 F.3d 930 (9th Cir. 2000).
9th Circuit requires third level acceptance credit for confession even though defendant went to trial. (488) Section 3E1.1(b) provides two ways in which a defendant can obtain the third level reduction for acceptance of responsibility: (1) by “timely providing complete information to the government concerning his own involvement in the offense,” or (2) by timely pleading guilty. In this case, the district court gave only a two-level reduction because defendant went to trial and put the government to its burden of proof. The Ninth Circuit held he was entitled to the third level because, at the time of his arrest, he confessed twice to illegally re-entering the United States after deportation. His confession established all of the necessary elements of a 8 U.S.C. § 1326 violation. Therefore, under U.S. v. Blanco-Gallegos, 188 F.3d 1072, 1077 (9th Cir. 1999) he was entitled to the additional one-level reduction under § 3E1.1(b) (1). On remand the district court was “directed to grant a three-level reduction.” U.S. v. Corona-Garcia, 210 F.3d 973 (9th Cir. 2000).
9th Circuit upholds denial of acceptance credit where defendant minimized his involvement. (488) Defendant pled guilty to participating with his son in an advance-fee telemarketing scheme. At sentencing he tried to minimize his involvement, portraying himself as a passive participant. The district judge found that this portrayal was “incredible.” Nothing requires a district court to credit a defendant’s cursory expressions of contrition. Defendant made no effort to explain away or accept responsibility for the damaging evidence against him. Accordingly, the Ninth Circuit held that the district court did not “clearly err” in denying him a two-level reduction for acceptance of responsibility. U.S. v. Scrivener, 189 F.3d 944 (9th Cir. 1999).
9th Circuit requires third acceptance credit despite defendant’s recantation and trial. (488) At the time of his arrest for re-entering the United States after deportation, defendant gave a statement admitting all of the elements of the charged crime. Accordingly, the Ninth Circuit held that the district court erred in giving him only a two-level reduction for acceptance of responsibility. He qualified for the third level under § 3E1.1(b)(1) because he “timely provide[d] complete information,” even though he later recanted his statement and disputed his guilt at trial. The panel observed that defendant’s recantation and trial were “relevant to the initial two point reduction under § 3E1.1(a), but that issue was not appealed.” “Once the two point reduction under § 3E1.1 has been awarded, the only question is timeliness and completeness, and [defendant’s] statement was complete and timely.” U.S. v. Blanco-Gallegos, 188 F.3d 1072 (9th Cir. 1999).
9th Circuit rejects additional reduction because defendant did not provide complete information. (488) The district court gave defendant two levels off for acceptance of responsibility but refused to give the third level under § 3E1.1(b)(1) because he did not provide timely and complete information about the offense. Defendant argued that his February 1994 interview with authorities was sufficient to assist law enforcement officials in the investigation of his misconduct, despite the fact that he later decided to go to trial. The Ninth Circuit rejected the argument, noting that he did not confess after his arrest, did not admit the charges at trial, and claimed at trial that the drugs and guns did not belong to him. U.S. v. Hock, 172 F.3d 676 (9th Cir. 1999).
9th Circuit denies acceptance credit where defendant denied knowing drugs were in her underwear. (488) Defendant claimed that some men invited her to spend two weeks in Mexico and two weeks in Africa and took her shopping for underwear. While on a side trip to Amsterdam, she was told to put on the clothing the men had bought for her and travel to Mexico. She was warned not to call home or there would be “trouble.” She was arrested in Mexico, and heroin was found sewn into her bra and girdle and in the soles of her shoes. She was convicted in Mexico, and transferred to the U.S. to serve her sentence. At a sentencing hearing before the U.S. Parole Commission, she denied knowledge of the heroin, and the Commission found that she had not accepted responsibility. On appeal, the Ninth Circuit agreed, because of her “stonewalling” behavior, her claimed lack of knowledge that she was carrying drugs, and her unsatisfactory explanation for her receipt of the airline tickets and clothes. James v. U.S. Parole Commission, 159 F.3d 1200 (9th Cir. 1998).
9th Circuit denies credit where actions and statements belied claim of remorse. (488) The sentencing judge was acutely aware of defendant’s dubious credibility because defendant had asked the judge for leniency in his earlier conviction for receiving child pornography. The judge apparently believed him at that time because he departed downward and sentenced him to five years of probation. One year into his probation, defendant sexually molested a thirteen-year old boy. While awaiting trial for the molestation charge, defendant made contact with what he believed was a fifteen-year old boy for sexual purposes. He was arrested and police seized his computer and collection of child pornography. In pleading guilty in state court to the child molestation offense, defendant refused to admit guilt and said he was pleading guilty only to take advantage of the prosecutor’s recommendation. Under these circumstances, the Ninth Circuit said it was “hardly surprising” that the district judge looked for affirmative evidence that defendant had accepted responsibility for the present child pornography conviction. Defendant’s “late and very limited letter” was “something, but not much.” The district court properly denied the reduction for acceptance of responsibility. U.S. v. Fellows, 157 F.3d 1197 (9th Cir. 1998).
9th Circuit denies acceptance of responsibility where defendant showed neither contrition nor remorse. (488) Implicit in acceptance of responsibility is an admission of moral wrongdoing. Lying about offense conduct or relevant conduct weighs against a finding of acceptance of responsibility. In this case, the district court denied the adjustment because defendant stated that “it’s always somebody else’s fault” and “laid out a pretty good story about what appeared to be a Robin Hood theory of what he was doing.” The Ninth Circuit found no error, holding that defendant demonstrated neither contrition nor remorse, and his statements at sentencing were “sufficiently inconsistent with acceptance of responsibility to warrant denial of a downward adjustment.” U.S. v. Connelly, 156 F.3d 978 (9th Cir. 1998).
9th Circuit says “regret” was not sufficient to show acceptance of responsibility. (488) Defendant argued that he was entitled to a reduction for acceptance of responsibility under § 3E1.1 because he readily admitted his part in the crime and said that he was sorry for shooting the deputy. The district court found that defendant did not show remorse or recognize any moral wrongdoing. He regretted being caught and he regretted the way things had gone. However, he said of his shooting of the deputy, “I had to do it,” meaning that if he was going to carry out the planned escape he had to use his gun on the guard. The Ninth Circuit held that “[h]is regret was not sufficient to constitute the acceptance of responsibility required by U.S.S.G. § 3E1.1(a).” U.S. v. Gallant, 136 F.3d 1246 (9th Cir. 1998).
9th Circuit finds no acceptance despite letter saying “I am truly sorry for the present offense.” (488) Defendant argued that he was entitled to a reduction for acceptance of responsibility under guideline § 3E1.1 because after he was convicted in a jury trial, he wrote a letter to the court saying “I am truly sorry for the present offense.” The Ninth Circuit found no abuse of discretion in denying the adjustment. U.S. v. Otis, 127 F.3d 829 (9th Cir. 1997).
9th Circuit finds no error in refusing to permit additional allocution after denial of acceptance credit. (488) In explaining that there would be no reduction in points for acceptance of responsibility, the district court said that defendant had not made a clear statement of her guilt. Defense counsel offered to have the defendant questioned by the court, but the court refused, saying it was not appropriate “after she’s had a chance to talk at so many stages,” and “we are at the end of sentencing.” On appeal, the Ninth Circuit found no error. Defendant had a clear and unrestricted opportunity to make any statement she wished earlier in the proceedings, so she was not denied her right to make statements of allocution. U.S. v. Leasure, 122 F.3d 837 (9th Cir. 1997).
9th Circuit denies third level credit where defendant did not notify of intent to plead guilty. (488) Defendant agreed to a court trial, but moved to dismiss the indictment. On the day set for trial, the court first considered an underlying discovery dispute and then took up the motion to dismiss the indictment. The court ultimately denied the motion and then found defendant guilty based on facts stipulated by both parties. At sentencing, the court found that defendant was not eligible for the third level decrease for acceptance of responsibility because he did not notify authorities of an intent to plead guilty before trial. On appeal, the Ninth Circuit affirmed, holding that a defendant cannot qualify for the third level adjustment under § 3E1.1(b)(2) “if the defendant does not notify authorities of an intent to plead guilty.” The court noted that under U.S. v. Narramore, 36 F.3d 845 (9th Cir. 1994), “[i]ncentives for plea bargaining are not unconstitutional merely because they are intended to encourage a defendant to forego constitutionally protected conduct.” U.S. v. Villasenor-Cesar, 114 F.3d 970 (9th Cir. 1997).
9th Circuit denies third level credit even though defendant was willing to plead to one count. (488) Defendant was charged with kidnapping and assaulting his girlfriend. He admitted the assault, but was unwilling to plead to kidnapping. On the eve of trial, the girlfriend reconciled with him and recanted her earlier statements. After the jury was picked, the government agreed to dismiss the kidnapping charge in return for defendant’s plea to assault. At sentencing, the district court gave defendant two levels off for accepting responsibility for the assault. But it refused to give him the third level, finding that defendant still minimized his conduct, and noted that the government had fully prepared for trial before defendant pled guilty. On appeal, the Ninth Circuit affirmed in a 2-1 decision. The majority found that defendant provided inconsistent statements and attempted to minimize the extent of his physical abuse of the victim. Moreover, his “eleventh-hour” cooperation came too late. Judge Fernandez dissented, arguing that defendant’s consistent acceptance of responsibility for the assault qualified him for the third level. U.S. v. Chee, 110 F.3d 1489 (9th Cir. 1997).
9th Circuit denies credit despite defendant’s claim he was willing to plead guilty. (488) Defendant was convicted of re-entry after deportation following conviction for an aggravated felony. He argued that he was entitled to a reduction for acceptance of responsibility because he stipulated to all but one of the elements of the offense, attempted to enter into a plea agreement, waived his Miranda rights after arrest, did not challenge the validity of the waiver, and presented a minimal defense by calling only one witness. He also argued that he only went to trial because he felt the government treated him unfairly by not offering him a two year sentence which the government allegedly offers to many other defendants charged under 8 U.S.C. § 1326. The Ninth Circuit found no clear error. Even on appeal, defendant continued to argue that the prosecution did not present sufficient proof that he was not a United States citizen. He argument was therefore “without merit.” U.S. v. Sotelo, 109 F.3d 1446 (9th Cir. 1997).
9th Circuit denies acceptance credit where defendant denied guilt and lied. (488) Defendant did nothing prior to trial to indicate acceptance of responsibility. He denied guilt and put the government to its proof. Even after his conviction he continued to maintain that he kicked the victim only once in the stomach, despite eyewitness testimony to the contrary. He also falsely stated in his letter to the district court that he did not know the person whom he was kicking. The Ninth Circuit upheld the denial of credit for acceptance of responsibility noting that lying about offense conduct weighs heavily against a finding of acceptance of responsibility, and that the adjustment is usually inconsistent with an enhancement for obstruction of justice. U.S. v. Sayetsitty, 107 F.3d 1405 (9th Cir. 1997).
9th Circuit finds defendant did not go to trial simply to test legal issue. (488) Defendant argued that he went to trial just to test the interstate commerce issue under U.S. v. Lopez, 115 S.Ct. 1624 (1995). Thus, he argued that this was one of the “rare situations [in which] a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to trial.” USSG § 3E.1.1, Application Note 2. The Ninth Circuit observed that defense counsel may have felt this was the purpose of trial, but there was no evidence that defendant himself had shown acceptance of responsibility in any way. His presentence report portrayed him as a man “strikingly unwilling” to accept responsibility for his conduct and he did nothing to show the contrary. His post-conviction letter to the judge saying he was sorry was “something, but not much.” Thus the trial judge was within her discretion in deciding that defendant did not manifest acceptance of responsibility. U.S. v. Casterline, 103 F.3d 76 (9th Cir. 1996).
9th Circuit reverses denial of credit for acceptance of responsibility. (488) Defendant did not discuss the offense at his presentence interview. Instead, he submitted a short statement a few weeks later. The officer found this statement was “generic” and did not merit credit for acceptance of responsibility under § 3E1.1 Later defendant submitted a more detailed letter, but the probation officer found this statement untimely. At the sentencing hearing, defendant expressed his acceptance of responsibility stating, “I accept that I was wrong . . . I accept that everything has been my fault.” The government recommended a two level reduction for acceptance of responsibility, but the district court found that defendant’s statements were inadequate and therefore refused the reduction. On appeal, the Ninth Circuit reversed, holding that the district court clearly erred. Defendant pled guilty only two months after the indictment, thereby saving the government the expense of preparing for trial. The Ninth Circuit said the district court “cannot consider [defendant’s] refusal to talk to the probation officer as evidence of not accepting responsibility.” The court was “unable to discern” what more defendant could have done to demonstrate acceptance of responsibility. U.S. v. Flores, 93 F.3d 587 (9th Cir. 1996).
9th Circuit says acceptance of responsibility came too late and was insufficient. (488) One defendant testified at trial and argued through counsel that he was not guilty. In his first presentence interview, he continued to deny everything. Before resentencing, he acknowledged that there were drugs in his car, but denied knowing the quantity. The second defendant did not allege that he went to trial for any purpose other than to establish his innocence. Even in his first presentence interview he continued to claim that he had nothing to do with the drug deal. In a re-interview concerning sentencing, he asserted that he was “present only because he drove there” and that “he was waiting in the living room” while the drug deal was discussed. The district court properly denied credit for acceptance of responsibility to both defendants. U.S. v. Felix, 87 F.3d 1057 (9th Cir. 1996).
9th Circuit says entrapment defense is not incompatible with acceptance of responsibility. (488) The Ninth Circuit found that the district court erroneously based its denial of an adjustment for acceptance of responsibility on defendant’s decision to assert an entrapment defense. “The assertion of an entrapment defense is not necessarily incompatible with an acceptance of responsibility.” The court acknowledged that a defendant whose only defense is entrapment is not automatically entitled to credit for acceptance of responsibility. But in this case, defendant admitted his criminal conduct and his intent throughout, and at sentencing plainly acknowledged that what he did was wrong and expressed remorse for his actions. The appellate court expressed no view as to whether defendant would be entitled to a two-level or a three-level downward adjustment on remand, noting that entitlement to the third level “largely involves the question of the timeliness of the defendant’s acceptance of responsibility.” U.S. v. Ing, 70 F.3d 553 (9th Cir. 1995).
9th Circuit says remorse for first time on remand after appeal was too late. (488) Defendant denied all wrongdoing, pled not guilty, and continued to maintain his innocence even after conviction. Not until two and one-half years later, when his case was remanded for resentencing, did he accept any responsibility and claim remorse. The Ninth Circuit held that this was too late, and accordingly the district court did not err in denying credit for acceptance of responsibility. The court distinguished U.S. v. McKinney, 15 F.3d 849 (9th Cir. 1994) on its facts, noting that in addition, the guidelines were amended in 1992 to emphasize that the adjustment for acceptance of responsibility under § 3E1.1 “is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt.” U.S. v. Dia, 69 F.3d 291 (9th Cir. 1995).
9th Circuit orders third level off where defendant was acquitted on only charge he contested. (488) From the beginning, defendant admitted he was involved in the illegal weapons offenses but denied involvement in his co-defendant’s drug trafficking. He offered to plead guilty to the firearms charges, and at trial, he fully admitted ownership and unlawful possession of the weapons. He was convicted of the firearms charges but acquitted of all drug charges. Under guideline § 3E1.1(b) a defendant is entitled to a reduction in his offense level by two points for acceptance of responsibility and by a third point if he timely provides complete information concerning his own involvement in the offense. The district court refused to give defendant the third level off, but on appeal the Ninth Circuit reversed because defendant had timely provided complete information about the offenses for which he was convicted. The court said he could not be punished for failing to provide information about offenses for which he had been acquitted. Nor did it matter that the district court found that defendant’s information was not “complete,” because the incomplete information did not affect defendant’s criminal liability. U.S. v. Eyler, 67 F.3d 1386 (9th Cir. 1995).
9th Circuit denies acceptance credit where defendant put government to its proof at trial. (488) Application note 2 to guideline § 3E1.1 states that the adjustment for acceptance of responsibility is “not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential elements of guilt, is convicted, and only then admits guilt and expresses remorse.” The note goes on to acknowledge that in “rare situations” a defendant will be able to demonstrate acceptance of responsibility even though he exercises his constitutional right to a trial. But in this case, defendant produced no proof whatsoever that he showed an acceptance of responsibility at any time before sentencing. Only after being interviewed by a probation office and after a draft of the presentence report was prepared, did defendant write a letter acknowledging his guilt and apologizing for his actions. U.S. v. Easter, 66 F.3d 1018 (9th Cir. 1995).
9th Circuit says factual basis for plea was sufficient admission of guilt for acceptance credit. (488) Although the district court found a sufficient factual basis to accept the plea, it ruled at sentencing that defendant did not sufficiently admit the offense conduct to justify a reduction for acceptance of responsibility. On appeal, the Ninth Circuit reversed, holding that the district court was bound by its finding in accordance with Fed. R. Crim. P. 11(f), that the plea was “supported by an independent basis in fact containing each of the essential elements of the offense.” The finding at the time the plea was accepted therefore compelled the inference that defendant had “truthfully admitt[ed] the conduct comprising the offense of conviction,” for purposes of USSG §3E1.1, application note 3. U.S. v. Vance, 62 F.3d 1152 (9th Cir. 1995).
9th Circuit denies credit despite offer to plead guilty to only charge of which defendant was convicted. (488) Defendant argued he should have been given credit for acceptance of responsibility because, at the time of arrest, he told the officers that he suspected the money was “dirty,” and because he offered to plead guilty to 18 U.S.C. § 2113(c), the only count of which he was convicted. The Ninth Circuit upheld the denial of credit, noting that § 2113(c) requires that defendant know the money was stolen from a bank—a fact that the defendant never acknowledged. U.S. v. McLaurin, 57 F.3d 823 (9th Cir. 1995).
9th Circuit requires 3-level reduction where defendant pled guilty at the earliest possible date. (488). Defendant’s base offense level was 32 and he entered his plea of guilty at the earliest possible date. The Ninth Circuit held that he satisfied all the requirements for a three-level reduction under 3E1.1(b)(2), and the district court erred in refusing to grant the reduction. U.S. v. Huckins, 53 F.3d. 276 (9th Cir. 1995).
9th Circuit finds no acceptance of responsibility despite confession. (488) Defendant argued that even though he went to trial, he had confessed tot he crime immediately after arrest, and he neither denied his guilt at trial nor presented a defense of any sort. The Ninth Circuit upheld the denial of credit for acceptance of responsibility, noting that defendant declined to discuss the offense with the probation officer and indicated that the statements he made to the officers were made under duress. “These are not the actions of a person who acknowledges his complicity in a crime and accepts responsibility.” U.S. v. Alexander, 48 F.3d 1477 (9th Cir. 1995).
9th Circuit says confession merited three level reduction even if notice of intent to plead guilty was untimely. (488) On the day he was arrested for the bank robbery, defendant confessed three times. Nevertheless, the government argued that he did not qualify for the additional one level reduction under §3E1.1(b) because he challenged the admissibility of his confessions and because he was so late in notifying the government of his intent to plead guilty that the government had to prepare for trial. The district court adopted the government’s reasoning, but on appeal the 9th Circuit reversed. Subsection (b) does not require that the defendant’s confession actually assist the government in its investigation and prosecution. Nor does the fact that defendant challenged the confessions affect the defendant’s eligibility for the additional one level decrease under subsection (b)(1). The government’s argument that defendant failed to notify the government of his intent to plead guilty until very shortly before trial, was relevant only to subsection (b)(2), which is entirely independent. U.S. v. Stoops, 25 F.3d 820 (9th Cir. 1994).
9th Circuit reverses three-level adjustment where defendant did not plead until night before trial. (488) Defendant did not advise the prosecution of his intention to plead guilty until 7:20 p.m. the night before trial. Nevertheless, the district judge decreased his sentence by three levels for acceptance of responsibility, so he could be imprisoned for the same length of time as his brother, who had notified the prosecution weeks before trial of his intention to plead guilty. The government appealed, and the 9th Circuit reversed, holding that defendant’s plea was not “timely” under §3E1.1(b) and the judge’s desire to equalize sentences was not a basis for applying the adjustment. U.S. v. Khang, 36 F.3d 77 (9th Cir. 1994).
9th Circuit denies additional reduction for acceptance despite plea after motion was denied. (488) Defendant argued that his guilty plea should have been deemed timely even though he did not enter it until a week before the scheduled trial date, because he pled guilty immediately after the district court denied his motion to dismiss the indictment on double jeopardy grounds. He claimed that the denial of the additional level for acceptance of responsibility under §3E1.1(b) was impermissibly based on the exercise of his constitutional rights. The 9th Circuit rejected the argument, noting that nothing prevented defendant from notifying the government that if his motion to dismiss was denied, he would plead guilty. If his motion had been granted, it would have completely obviated the trial, and therefore if defendant had communicated his willingness to enter a plea, the government would have had no reason to prepare for trial. U.S. v. Narramore, 36 F.3d 845 (9th Cir. 1994).
9th Circuit says three level acceptance credit cannot be based on attempt to cooperate or rehabilitation. (488) Defendant argued that he was entitled to a three level reduction for acceptance of responsibility because (1) his guilty plea allowed the government to secure the guilty pleas of his co-defendants, (2) he had rehabilitated himself since his incarceration, and (3) he was not permitted to render assistance to the government in other cases, even though he was willing to do so. The 9th Circuit rejected each of these arguments, stating that nothing in §3E1.1 suggests that a three level reduction for acceptance of responsibility can be based on substantial assistance or rehabilitation. U.S. v. Narramore, 36 F.3d 845 (9th Cir. 1994).
9th Circuit says plea 11 days before trial did not qualify for 3-level adjustment. (488) On December 15, defense counsel notified the prosecutor that he wanted to discuss a possible plea agreement. The parties scheduled a meeting for January 5. In the interim, defendant continued to litigate the case. On January 8 the parties informed the court that plea discussions were underway and the court rescheduled the trial for February 2. On January 15, defendant continued to pursue his pretrial motion. By the time he entered his plea on January 22, the prosecutor had prepared and served seven subpoenas, and planned her trial exhibits. Since the defendant delayed entering the plea until eleven days before trial while continuing to litigate the case, he was not entitled to a 3-level adjustment for acceptance of responsibility under §3E1.1(b)(2). U.S. v. McClain, 30 F.3d 1172 (9th Cir. 1994).
9th Circuit says extra 1-level cannot be denied just because defendant filed pretrial motions. (488) The district court denied an additional one-level reduction for acceptance of responsibility under §3E1.1(b)(2) because over a year had passed before defendant entered his plea and during that time he had filed a motion to suppress. The 9th Circuit reversed, stating that “where the record reflects only the Government’s efforts in responding to such motions, . . . the trial court may not deny the additional reduction for timely acceptance simply because a given length of time has elapsed prior to the defendant noticing his intent to plead guilty.” U.S. v. Kimple, 27 F.3d 1409 (9th Cir. 1994).
9th Circuit denies additional 1 level reduction for untimeliness. (488) Subsection (b) to § 3E1.1 provides for an additional 1-level decrease if the offense level is 16 or greater and the defendant “timely” provides information concerning his own involvement in the offense or notifies authorities of his intention to enter a guilty plea in time to permit the government to avoid preparing for trial. Here, defendant entered a guilty plea three weeks before the trial date, after the prosecution had spent considerable time and effort preparing for trial. Moreover, defendant did not make a complete disclosure of information until five days before the trial date. Accordingly, the district court did not clearly err in concluding that defendant’s acceptance of responsibility was untimely. U.S. v. Hopper, 27 F.3d 378 (9th Cir. 1994).
9th Circuit finds no acceptance where defendant blamed victims of fraud. (488) Defendant was convicted of bankruptcy fraud. The district court denied an acceptance of responsibility reduction commenting that defendant felt he was innocent even though he had been convicted. The 9th Circuit found no clear error. At trial, defendant attempted to fix blame on the victims he defrauded. In addition, the central issue at trial was defendant’s fraudulent intent which was resolved against defendant. U.S. v. Lindholm, 24 F.3d 1078 (9th Cir. 1994).
9th Circuit finds no error in denying reduction for defendant who minimized involvement. (488) Defendant objected to the district court’s decision not to grant a two level reduction for acceptance of responsibility. The Ninth Circuit found the district court’s determination was not clearly erroneous. Even though defendant pled guilty to some charges and regretted the harm to his family, he strung out his guilty pleas, forced members of his family to endure a difficult trial and continued to minimize his involvement in the case. U.S. v. Morales, 11 F.3d 915 (9th Cir. 1993).
9th Circuit finds limited acceptance of responsibility insufficient to qualify for the reduction. (488) While admitting to some involvement in the conspiracy, defendant did not admit that his role was of the magnitude proved at trial, i.e. that he was involved in the plan to murder Elias, and in the Texas heroin distribution, or that he was Orantes-Ariaga’s close advisor. The 9th Circuit held that such a limited acceptance of responsibility was not sufficient to qualify him for the reduction. U.S. v. Arias-Villanueva, 998 F.2d 1491 (9th Cir. 1993), implied overruling recognized by U.S. v. Jimenez-Ortega, 472 F.3d 1102 (9th Cir. 2007).
9th Circuit denies acceptance of responsibility where defendant’s story was “truly incredible.” (488) The district court found defendant’s version of the facts to the probation officer to be “truly incredible.” First, the appellant only admitted to smuggling aliens between January and March of 1990. She also stated that she only became involved because of a favor to a friend and the undercover agents’ encouragement. The court found that this contradicted her earlier statements to the agents that she had been involved in alien smuggling for twelve years. Moreover, the district court found it difficult to believe that she could have organized a large load of aliens to transport within twenty-four hours of the agents’ first contact with her. The 9th Circuit held that because the sentencing judge is “in a unique position to evaluate a defendant’s acceptance of responsibility,” her determination is entitled to “great deference.” U.S. v. Martinez-Gonzalez, 962 F.2d 874 (9th Cir. 1992).
9th Circuit says defendant was not punished for being mentally ill because his explanations were irrational. (488) Defendant argued that because he had a history of mental illness, his motive for, and explanations about the crimes were bound to be irrational and “[t]o withhold the reduction because of this irrationality would be to improperly punish him for being mentally ill.” The 9th Circuit rejected the argument, stating that defendant was not denied the acceptance of responsibility reduction because of his “status” as a mentally ill person, but because his statements were not credible. The court also rejected the argument that the discrepancies were immaterial because they did not concern his “own involvement” but his explanations about the involvement of others. U.S. v. Hall, 952 F.2d 1170 (9th Cir. 1991).
9th Circuit denies acceptance of responsibility reduction to defendant who sent one-paragraph letter to judge. (488) The 9th Circuit affirmed the district court’s denial of a reduction for acceptance of responsibility where defendant’s proof of acceptance of responsibility consisted of a one-paragraph letter sent to the judge nine days before the sentencing hearing. The district court found the letter perfunctory and unconvincing. Moreover, defendant not only remained silent when questioned by the FBI after his arrest, but lied about his involvement in the robbery. U.S. v. Johnson, 953 F.2d 1167 (9th Cir. 1992).
9th Circuit denies acceptance of responsibility despite defendant’s belated expression of remorse and repentance. (488) Defendant argued that the district court improperly denied acceptance of responsibility because he did not provide assistance to the government. The defendant made no statements to the arresting officers, and gave a false name until confronted with his driver’s license. He pleaded not guilty and put the government to its burden of proof at trial. Although the defendant apologized to the court at the time of sentencing, the 9th Circuit held that the district court “was free to discount Restrepo’s belated expression of remorse and repentance.” The district court’s denial of credit for acceptance of responsibility was not clearly erroneous. U.S. v. Restrepo, 930 F.2d 705 (9th Cir. 1991).
9th Circuit upholds finding of no acceptance of responsibility where defendants unsuccessfully argued that they were mere couriers. (488) Defendants attempted to persuade the court that they were mere couriers in cocaine-smuggling operation, despite extensive evidence of their role in the preparation and planning of the offense. Based on this argument, the sentencing court denied defendants’ request for an acceptance-of-responsibility adjustment to their offense level. The 9th Circuit found that defendants’ post-verdict attempt to understate their roles adequately supported the district court’s conclusion that defendants’ had not accepted responsibility for their criminal conduct. U.S. v. Sanchez, 908 F.2d 1443 (9th Cir. 1990).
10th Circuit reverses government’s refusal to move for one-level acceptance reduction. (488) At defendant’s plea hearing, the government agreed that defendant should receive a full three-level acceptance of responsibility reduction. However, after defendant challenged the government’s loss calculation methodology, the government insisted that that defendant not should receive any acceptance reduction, and did not file a request for a one-level reduction under § 3E1.1(b). On appeal, the Tenth Circuit reversed, holding that the government’s decision to reverse its stated course was not rationally related to any legitimate government end. The government had acknowledged defendant’s right to challenge loss, and had expressly agreed to request a third level reduction The government had argued only that defendant had not truly accepted responsibility. The district court necessarily rejected that argument in finding that a two-level reduction under § 3E1.1(a) was appropriate. U.S. v. Evans, 744 F.3d 1192 (10th Cir. 2014).
10th Circuit reverses court’s denial of third-level acceptance reduction. (488) The district court applied the two-level acceptance reduction under § 3E1.1(a), but denied the additional one-level reduction under § 3E1.1(b) despite the government’s motion. The judge did not “agree that avoidance of trial is a more efficient or appropriate allocation of resources…. I do not think that saving the Government the task of preparing for trial is a benefit that’s entitled to any weight, nor do I think that saving the Court the trouble of presiding over a trial is a positive that is entitled to any credit at all.” The Tenth Circuit held that the court relied on impermissible reasons to deny the one-level reduction. The court did not base its denial on the specific criteria outlined in § 3E1.1(b). Instead, it merely articulated its own personal belief that a defendant should not be rewarded for avoiding trial by pleading guilty, and that trials are the better or intended way to resolve cases in our judicial system. The judge’s personal view was an impermissible reason for denying a § 3E1.1(b) reduction. U.S. v. Haggerty, 731 F.3d 1094 (10th Cir. 2013).
10th Circuit upholds withdrawal of motion for additional one-level acceptance reduction. (488) Defendant pled guilty to mailing a threatening letter to a state trial judge. The government initially moved for a one-level reduction for acceptance of responsibility under § 3E1.1(b). However, six days after the plea hearing, the sentencing judge received a threatening letter from defendant. A forensic psychologist concluded that defendant was “currently suffering from a mental disease or defect rendering him mentally incompetent.” Seven months defendant regained competency. At sentencing, the district court applied the two-level acceptance of responsibility reduction, but allowed the government to withdraw its request for the additional one-point reduction. The Tenth Circuit rejected defendant’s claim that that the government violated his right to due process by withdrawing the motion. Defendant did not identify any impermissible factor animating the government’s decision. Although the district court apparently believed that defendant was not criminally responsible when he wrote the letter, the government could reasonably believe that his writing a new threatening letter to a judge evinced a failure to accept responsibility for the very similar crime for which he had pleaded guilty. U.S. v. Naramor, 726 F.3d 1160 (10th Cir. 2013).
10th Circuit denies acceptance credit even though jury did not find intent to distribute. (488) State troopers stopped defendant’s vehicle, but found no contraband. However, after reviewing a recording of defendant and his passenger speaking to one another while in the patrol car, the troopers stopped defendant a second time, and found cocaine and marijuana hidden in some dog food. Defendant attempted to flee, but the troopers apprehended him. He was charged with possession of five grams or more of cocaine base with intent to distribute and possession of marijuana with intent to distribute. At trial, defendant admitted that he possessed the drugs, but persuaded the jury not to convict of intent to distribute. At sentencing, defendant argued that he deserved a § 3E1.1 acceptance of responsibility reduction, because he went to trial solely to contest whether he had the intent to distribute. The district court denied the reduction, and on appeal, the Tenth Circuit affirmed, noting that, after being stopped a second time and specifically asked about the statements in the recorded conversation, defendant continued to deny any knowledge of the drugs, and when the drugs were discovered, defendant attempted to flee, rather than surrendering voluntarily. After he was caught, defendant accused the troopers of planting the drugs. Despite his later offer to plead guilty to simple possession, the “timeliness” of this admission was suspect. U.S. v. Collins, 511 F.3d 1276 (10th Cir. 2008).
10th Circuit says prosecutors may refuse to file § 3E1.1 motion based on request to reweigh drugs. (488) Under § 3E1.1(b) prosecutors have the authority to recommend a one-level downward departure reduction when certain conditions are met, including timely notification of the intention to plead guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently. Here, the government expended resources to accommodate defendant’s request to have an independent lab reweigh the drug evidence against him. Due to these costs, it refused to move for a § 3E1.1(b) reduction. The Tenth Circuit affirmed, holding that efficient resource allocation is a legitimate government end to which the prosecutor’s decision not to file a § 3E1.1 motion was rationally related. U.S. v. Blanco, 466 F.3d 916 (10th Cir. 2006).
10th Circuit upholds denial of untimely motion for third-level acceptance reduction. (488) On the day of sentencing, defendant filed an unopposed application to file a motion out of time – he sought to file a motion seeking a third-level reduction for acceptance of responsibility. The district court denied defendant’s motion as untimely and did not reach the merits of the underlying motion. The Tenth Circuit found no error. Defendant’s application to file a motion out of time was best characterized as an untimely objection to his PSR. A defendant must raise objections to a PSR within 14 days of receiving it. A district court may, however, entertain a new objection at any time before sentencing if the defendant shows good cause. Defendant could not meet this burden. Although he argued that he did not learn of the government’s intention not to file a third-level reduction for acceptance of responsibility under after the 14 days had passed, a review of the record revealed otherwise. The PSR stated that the government indicated it would not be requesting the third-level reduction, and defendant acknowledged receiving and reading the PSR. U.S. v. Eastteam, 426 F.3d 1301 (10th Cir. 2005).
10th Circuit says defendant who admitted wrongfulness of actions after conviction did not earn acceptance reduction. (488) Defendant was convicted of kidnapping and assaulting his ex-wife. A doctor testified that since defendant’s conviction, he had admitted to having serious problems, realized he did not know how to manage them, admitted he needed help, was now more stabilized by virtue of taking lithium, was suffering from post-traumatic stress disorder, and was remorseful. The court nonetheless found that defendant had not accepted responsibility, reasoning that acceptance of responsibility must be exhibited in some manner even though it is not in a guilty plea. Defendant had refused to discuss the case with his probation officer, failed to provide his written version of events, and refused to sign releases for his Social Security records, tax records and credit report. The Tenth Circuit upheld the denial of the acceptance reduction. The record reflected that defendant acknowledged the wrongfulness of his actions after he was convicted, nothing more, and that is insufficient to warrant the § 3E1.1 reduction. U.S. v. Wooten, 377 F.3d 1134 (10th Cir. 2004).
10th Circuit rejects three-level acceptance reduction given “in the spirit of leniency.” (488) In sentencing defendant, the court stated: “The factual basis that was given in this matter was vague and incomplete. Nevertheless, the Court, in the spirit of leniency, … will grant an adjustment for responsibility of the full three levels.” The Tenth Circuit remanded for the district court to determine whether defendant was entitled to an acceptance of responsibility reduction. The court did not make any findings in support of the reduction, and incorrectly interpreted § 3E1.1 as permitting a reduction in the “spirit of leniency.” The guidelines limit a court’s ability to fashion a sentence based on mere sympathy or commiseration, especially when the guidelines prescribe a particular range. An acceptance of responsibility reduction cannot be used as a departure mechanism based solely on the court’s leniency. U.S. v. Topete-Plascencia, 351 F.3d 454 (10th Cir. 2003).
10th Circuit holds that notifying court of intent to plead guilty on same day suppression motion was denied was timely. (488) Under § 3E1.1(b)(2), a defendant can earn a one-point acceptance of responsibility reduction by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial. The Tenth Circuit ruled that the district court erred in relying on the fact that defendant did not enter a guilty plea until after a “lengthy suppression hearing” in ruling that defendant did not timely provide notice of his intent to plead guilty. Where a defendant has filed a non-frivolous motion to suppress, and there is no evidence that the government engaged in preparation beyond that which was required for the motion, a district court may not rely on the fact that the defendant filed a motion to suppress to justify a denial of the third-level reduction. Defendant’s notification of his intent to plead guilty occurred promptly after the court orally denied his motion to suppress. Although this was only eight days before trial, a defendant is not required to give conditional notification of intent to plead guilty in order to preserve his eligibility for the § 3E1.1(b)(2) reduction. U.S. v. Marquez, 337 F.3d 1203 (10th Cir. 2003).
10th Circuit holds that failure to grant additional one-level reduction was not plain error. (488) Defendant argued for the first time on appeal that he was entitled to an additional one-level acceptance of responsibility reduction because the court granted him a two-level reduction under § 3E1.1(a), his offense level was 16 or greater before that reduction, and he told law enforcement officials that he had unlawfully reentered the country. The Tenth Circuit held that the district court did not commit plain error by failing to grant the additional one-level reduction sua sponte. Defendant admitted to authorities that he was a Mexican national and had unlawfully re-entered the U.S. after being convicted of a felony. At trial, however, his attorney challenged the sufficiency and validity of the government’s evidence, his cross-examination of the government’s witnesses, and argued during closing that the government failed to carry its burden of proof. To resolve the inconsistency between defendant’s pre-trial admissions and the positions he took at trial, the district court needed a factual record to determine whether he timely provided complete information to the government so as to entitle him to an additional one-level reduction under § 3E1.1(b)(1). However, defendant’s failure to properly raise the issue before the district court precluded it from making the proper factual inquiries necessary to decide that issue. The court’s failure to grant an additional reduction did not rise to the level of plain error. U.S. v. Heredia-Cruz, 328 F.3d 1283 (10th Cir. 2003).
10th Circuit denies acceptance reduction where defendant denied intent to defraud. (488) The district court believed that “[t]he overall tenor of this case at trial was that, although defendant committed the acts, he actively denied any intent to defraud.” Defendant repeatedly asserted that he may have made some mistakes, failed to keep accurate records, was sloppy, and continued to claim that at least some of his partners actually encouraged him to invest in futures. Defendant never admitted that he had any intent to defraud, nor did he acknowledge that his actions were criminal. Therefore, the Tenth Circuit affirmed the district court’s finding that defendant did not deserve an acceptance of responsibility reduction. U.S. v. Bailey, 327 F.3d 1131 (10th Cir. 2003).
10th Circuit holds that factual dispute as to entitlement to acceptance reduction was not plain error. (488) The district court granted defendant a two-level acceptance of responsibility reduction, but defendant argued for the first time on appeal that the court erred in refusing to grant him an additional one-point reduction. At sentencing, the government had opposed an acceptance reduction because defendant did not provide complete information concerning his involvement in the offense. Defendant told the FBI that he shot Lee, a robbery victim, in self-defense, and that Lee advanced toward him and appeared to be reaching for a weapon. However, the government presented witnesses who testified that Lee obeyed defendant’s commands and did not advance towards him or make any threatening gestures. Thus, whether defendant provided complete information to the government entitling him to a three-level reduction under § 3E1.1(b)(1) was a sharply disputed issue of fact at the sentencing hearing. Under the law of this circuit, a factual dispute as to whether a particular guideline applies does not rise to the level of plain error. Therefore, the Tenth Circuit did not address defendant’s contention that he was entitled to an additional reduction for acceptance of responsibility. U.S. v. Battle, 289 F.3d 661 (10th Cir. 2002).
10th Circuit upholds denial of acceptance reduction to defendant who raised entrapment defense at trial. (488) At trial, defendant raised an entrapment defense. Although the assertion of an entrapment defense does not bar a defendant from receiving a reduction for acceptance of responsibility, the defendant bears the burden of demonstrating an “affirmative acceptance of personal responsibility for his criminal conduct.” When a defendant is convicted at trial, a sentencing court’s determination that he has accepted responsibility is based primarily on pre-trial statements and conduct. See Note 2 to § 3E1.1. Here, the district court indicated that it was not aware of any pretrial statements or conduct by defendant that would support a determination that he accepted responsibility, and defendant did not claim that he ever made such statements or engaged in such conduct. Defendant claimed only that he deserved the reduction because he testified truthfully at trial about making devices that, when taken apart and put back together with gun powder, were pipe bombs. Accordingly, the Tenth Circuit upheld the district court’s refusal to grant defendant an acceptance of responsibility reduction. U.S. v. Eaton, 260 F.3d 1232 (10th Cir. 2001).
10th Circuit denies acceptance reduction to defendant who raised entrapment defense. (488) At trial, defendant admitted his involvement in the underlying drug possession and distribution charges, but claimed the government entrapped him into committing those crimes in a school zone. In U.S. v. Garcia, 182 F.3d 1165 (10th Cir. 1999), the court held that an entrapment defense may present one of those “rare situations” in which a defendant may go to trial and still receive the acceptance of responsibility reduction. However, the simple assertion of the entrapment defense coupled with acknowledgement of the underlying criminal activity does not automatically entitle a defendant to the reduction. The defendant must still demonstrate acceptance of responsibility, primarily through pre-trial statements and conduct. Here, the district court found that defendant was not entitled to the reduction in part because “he did not confess, cooperate with the police, or engage in conduct that would otherwise demonstrate an acceptance of responsibility prior to trial.” Moreover, defendant only admitted his involvement after the government presented its case in chief, during which defendant refused to stipulate to anything and made the government prove “every element, every fact, every videotape and audiotape, every chemical composition, and every geographic detail.” Accordingly, the Tenth Circuit affirmed the denial of the acceptance reduction. U.S. v. James, 257 F.3d 1173 (10th Cir. 2001).
10th Circuit denies acceptance reduction where defendant testified falsely at sentencing. (488) The district court found that defendant’s testimony regarding the involvement of minors in the conspiracy was not truthful and thus refused to decrease his offense level for acceptance of responsibility. The Tenth Circuit upheld the denial of the reduction. At the hearing, defendant continually denied that he used the minors in the commission of the offense. However, the district court’s conclusion to the contrary was not clearly erroneous. Consequently, the court’s conclusion that defendant acted in a manner inconsistent with acceptance of responsibility by continually denying relevant conduct was not clearly erroneous. See USSG § 3E1.1, Note 1(a) (“[A] defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility.”) U.S. v. Suitor, 253 F.3d 1206 (10th Cir. 2001).
10th Circuit rejects acceptance reduction for defendant who minimized role in child’s death. (488) Defendant’s boyfriend was convicted of the second-degree murder of her 16-month old child, and defendant was convicted of aiding and abetting the murder. The evidence showed that the child had been the victim of abuse—he had subdural hemorrhaging on both sides and the back of his brain that could not have been caused by falling from a stroller into some rocks. In addition, he had 13 bruises and abrasions on his head and neck, three on his chest and abdomen, seven on his arms, and 17 on his legs. Defendant contended that she accepted responsibility by admitting that she had pushed her child off a chair, and she never tried to minimize her actions. The Tenth Circuit held that the district court did not err in denying her the reduction. The court found defendant’s admission did not constitute acceptance of responsibility for what happened to her son or for conduct that resulted in his death. U.S. v. Vallo, 238 F.3d 1242 (10th Cir. 2001).
10th Circuit holds that entrapment defense does not necessarily bar acceptance reduction. (488) The district court granted defendant an acceptance of responsibility reduction because he admitted his involvement, gave the government all the information he knew about the offense, and went to trial only to raise an entrapment defense. The Tenth Circuit held that asserting an entrapment defense at trial does not, as a matter of law, bar receipt of an acceptance of responsibility reduction. As a long line of Supreme Court cases show, the entrapment defense is just a “challenge to the applicability of a statute” to the defendant’s conduct. See note to § 3E1.1 (reduction may apply where defendant goes to trial to assert issues unrelated to factual guilt). The defendant is essentially says: “I am factually guilty, but it was the government that induced commission of the crime and planted the criminal intent.” Some courts have incorrectly suggested that the entrapment defense and § 3E1.1 are incompatible because the entrapment defense challenges the factual element of intent. However, a defendant who raises the entrapment defense concedes that he had the requisite criminal intent when the crime was committed, but claims that the criminal intent was planted by the government. U.S. v. Garcia, 182 F.3d 1165 (10th Cir. 1999).
10th Circuit says three-level acceptance of responsibility reduction applies to resentencing. (488) Defendant was originally convicted of drug and firearms charges. In 1997, upon his habeas petition, the district court vacated his § 924(c)(1) conviction, and resentenced him on the drug count. At resentencing, defendant requested a three-level acceptance of responsibility reduction under § 3E1.1(b)(2), even though that section did not become effective until after he was originally sentenced. The district court ruled that defendant was subject to the guidelines in effect when he was originally sentenced, but on appeal, the Tenth Circuit reversed. It is well-settled that when a district court vacates a sentence and resentences a defendant, the court is governed by the guidelines in effect at the time of resentencing, subject to ex post facto considerations. The district court’s decision was not based on the government’s secondary argument that defendant’s information was not timely. The judge’s statement showed he believed he lacked legal authority to apply the newer guideline. U.S. v. Easterling, 157 F.3d 1220 (10th Cir. 1998).
10th Circuit denies § 3E1.1 reduction where defendant did not truthfully admit full involvement. (488) Defendant and two friends drove around one morning looking for psychedelic mushrooms. When they were unsuccessful, they smoked marijuana and drove to a nearby bank. Defendant took a gun from one of his friends, but returned five minutes later, returned the gun and said he “couldn’t do it.” Another took the gun, returned to the bank and robbed it. The three men then divided up the $5,034 in proceeds. Defendant argued he was entitled to a three-level acceptance of responsibility reduction because he told the truth about his involvement in the crimes, raised only a technical defense at trial (lack of intent), and voluntarily withdrew from criminal conduct when he returned the gun to his friend. The Tenth Circuit held defendant was not entitled to the § 3E1.1 reduction because he did not truthfully admit his involvement in the charged crimes. A cohort testified that defendant was sober on the morning of the robbery, knew what he was doing, helped plan the robbery, purchased a compact disc to get a bag for the robbery proceeds, helped plan the escape route, helped put the money away while the three escaped after the robbery, and shared in the robbery proceeds. U.S. v. Bindley, 157 F.3d 1235 (10th Cir. 1998).
10th Circuit denies reduction where defendant admitted perjury plot only after it was discovered. (488) Defendant was convicted of being a felon in possession of a firearm. He argued that his admissions at trial demonstrated acceptance of responsibility. At trial he admitted suborning perjury and possessing a firearm. The Tenth Circuit affirmed the denial of the reduction because defendant’s admissions were untimely and incomplete. Defendant only admitted the perjury plot after the government discovered it. He also provided only partially true testimony at trial. This was not a rare case in which a defendant acts in good faith in putting the government to its burden of proof for legitimate reasons other than contesting guilt. U.S. v. McMahon, 91 F.3d 1394 (10th Cir. 1996).
10th Circuit denies reduction where defendant claimed he mistakenly filed draft of tax return. (488) Defendant improperly claimed a tax refund of $6,091 on taxable income of $20,969, rather than a balance owed of $17,565 on taxable income of $92,776. The Tenth Circuit rejected his claim for a § 3E1.1 reduction, since throughout the trial defendant never admitted that his conduct was willful or that he intended to commit a crime. Instead, he claimed that he mistakenly filed a working draft of his tax return. Although he now admitted his conduct, his late conversion did not amount to acceptance of responsibility. U.S. v. Gassaway, 81 F.3d 920 (10th Cir. 1996).
10th Circuit rejects § 3E1.1 reduction because defendant denied fraudulent intent. (488) Defendant negotiated and deposited in her own account 64 U.S. Treasury checks payable to her deceased grandmother. The Tenth Circuit affirmed the denial of a § 3E1.1 reduction because defendant steadfastly denied any intent to defraud the government—an essential factual element of guilt. Thus, although defendant admitted the conduct constituting the forgeries, she did not admit that she committed the crime, which was inconsistent with acceptance of responsibility. U.S. v. Jaynes, 75 F.3d 1493 (10th Cir. 1996).
10th Circuit says 3-level § 3E1.1(b) requirements are disjunctive. (488) Defendant argued that he was entitled to a three rather than a two level reduction for acceptance of responsibility under § 3E1.1(b)(1). The Tenth Circuit remanded because the district court only examined the timeliness of defendant’s plea under § 3E1.1(b)(2). The court did not consider defendant’s claim that he had timely provided complete information to the government under § 3E1.1(b)(1). The two sections are disjunctive, and the language referencing the start of trial applies only to § 3E1.1(b)(2). U.S. v. Ortiz, 63 F.3d 952 (10th Cir. 1995).
10th Circuit denies acceptance of responsibility reduction because defendant did not believe his conduct was wrong. (488) Defendant argued that he deserved an acceptance of responsibility reduction because the only reason he went to trial was to argue that the drug paraphernalia statute under which he was prosecuted was unconstitutional. The Tenth Circuit found that defendant had not preserved this issue for appeal, but that even if he had, he did not deserve the reduction. The district judge did not believe that defendant went to trial only to preserve the constitutional point. Defendant’s statement at sentencing suggested a continued belief that he did nothing wrong and that his main regret was getting caught. U.S. v. Janus Industries, 48 F.3d 1548 (10th Cir. 1995).
10th Circuit relies on unsworn statement to probation officer to deny acceptance reduction. (488) The 10th Circuit approved the district court’s reliance on defendant’s unsworn statement to the probation officer to deny defendant a reduction for acceptance of responsibility. The court concluded that instead of admitting guilt, the statement contained excuses by defendant, and attempts to shift blame from himself. U.S. v. McAlpine, 32 F.3d 484 (10th Cir. 1994).
10th Circuit denies reduction to felon who admitted owning but not possessing gun. (488) Defendant was convicted of being a felon in possession of a firearm. The district court denied him a reduction for acceptance of responsibility after finding that defendant did not admit possession of the firearm, denied his true identity to the arresting officer prior to and after being taken into custody, and, and quibbled with respect to his gun’s location and his possession of it. U.S. v. Lloyd, 13 F.3d 1450 (10th Cir. 1994).
10th Circuit denies reduction where defendant continued to proclaim innocence. (488) Defendant was convicted of forcible rape. He admitted the intercourse, but contended it was consensual. The 10th Circuit upheld the denial of a reduction for acceptance of responsibility. At sentencing, defendant said “I feel sorry for what she said I did, but I still believe I’m innocent.” This was not a clear recognition and affirmative acceptance of responsibility. U.S. v. Talk, 13 F.3d 369 (10th Cir. 1993).
10th Circuit refuses reduction to defendant who denied he knew possession of guns was illegal. (488) Defendant was convicted of possessing four homemade machine guns and two sawed-off shotguns, and of being a felon in possession of a firearm. He admitted that he possessed the firearms and that he was a felon, but denied knowing that possession of those firearms was illegal or that he intended to violate the law. The 10th Circuit upheld the denial of a reduction for acceptance of responsibility. Defendant’s denial conflicted with prior statements he had made, and necessitated the government’s presentation of evidence relating to these statements. U.S. v. McCollom, 12 F.3d 968 (10th Cir. 1993).
10th Circuit holds that defendant’s other conduct outweighed his admission of firearm possession. (488) Defendant claimed he had accepted responsibility for his offense of being a felon in possession of a firearm by pleading guilty and admitting that he possessed the firearm. The 10th Circuit upheld the denial of the reduction. Pleading guilty and truthfully admitting the offense of conviction may be outweighed by conduct that is inconsistent with an acceptance of responsibility. Although defendant admitted that he had purchased a firearm, that he had possessed it on the night of his arrest, and that he had been convicted of a prior felony, he denied knowing or being informed that he was prohibited from possessing a firearm. He also could not recall placing the firearm in his van, denied owning the backpack containing the gun, and considered the firearm offense to be part of a conspiracy against him. U.S. v. Vaughn, 7 F.3d 1533 (10th Cir. 1993).
10th Circuit denies reduction to defendant who put government to burden of proof at trial. (488) Defendant argued that he accepted responsibility by beginning restitution and discontinuing fraudulent stock sales prior to the government’s investigation. The 10th Circuit rejected this, since defendant did not stop his fraudulent activities until after Oklahoma Department of Securities began an investigation. Furthermore, the reduction was not intended to apply to a defendant who put the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. U.S. v. Lowder, 5 F.3d 467 (10th Cir. 1993).
10th Circuit affirms that defendants did not make “voluntary” restitution evidencing acceptance of responsibility. (488) Defendants argued that their “voluntary payment of restitution” and their willingness to enter into settlement negotiations evidenced their acceptance of responsibility. The 10th Circuit upheld the denial of the reduction. Note 1(b) to section 3E1.1 refers to “voluntary payment of restitution prior to adjudication of guilt.” Defendants signed a consent judgment as to $35,000 that had been seized, but this was done only after they had been found guilty. Likewise, they placed $55,000 in escrow prior to trial, but this would only be turned over if they were found guilty. Finally, defendants’ willingness to settle prior to trial was not evidence of acceptance of responsibility. They offered to pay $90,000 in restitution in an attempt to avoid an indictment altogether. They also rejected proposals advanced by the government. Thus, they showed a willingness to concede responsibility only to the extent they could avoid the consequences of their criminal conduct. U.S. v. Hollis, 971 F.2d 1441 (10th Cir. 1992).
10th Circuit denies acceptance of responsibility reduction to defendant who went to trial. (488) Defendant was convicted by a jury of drug charges. He maintained his innocence throughout the trial and immediately after his conviction, but ultimately wrote a letter to the trial judge admitting his guilt. The 10th Circuit affirmed the district court’s decision to deny defendant a reduction for acceptance of responsibility, noting that the district court has “substantial discretion on the issue of timeliness of the acceptance of responsibility.” “The Sentencing Commission recognized that this guideline was not intended to apply to a defendant that puts the prosecution to its burden of proof at trial by denying the essential elements of the offense, is convicted, and post-trial admits guilt and expresses remorse.” U.S. v. Ochoa-Fabian, 935 F.2d 1139 (10th Cir. 1991).
10th Circuit holds that defendant’s expression of remorse was untimely. (488) In his interview with a probation officer, the defendant claimed that he had been unaware that there was marijuana in his van and that he pleaded guilty upon the advice of his lawyer because he believed that there was no possibility of winning at trial. However, at the sentencing hearing he expressed sorrow for what he had done and promised that it would not happen again. The 10th Circuit upheld the district court’s denial of acceptance of responsibility adjustment as not clearly erroneous. The district court could not be faulted for finding that the defendant’s professed acceptance of responsibility was untimely. Under these circumstances, it was proper to decline to grant the defendant an adjustment. U.S. v. Pelayo-Munoz, 905 F.2d 1429 (10th Cir. 1990).
10th Circuit finds that defendant who felt no remorse for cheating large companies did not accept responsibility. (488) Defendant expressed remorse for cheating small businesses and individuals, but admitted that he felt no remorse for cheating large businesses. The 10th Circuit upheld the district court’s finding that defendant did not accept fully that his actions were morally and legally improper, and was therefore not entitled to a reduction for acceptance of responsibility. U.S. v. Whitehead, 912 F.2d 448 (10th Cir. 1990).
10th Circuit rejects reduction to defendant who waited until sentencing to accept responsibility. (488) The 10th Circuit affirmed the district court’s decision to deny defendant a reduction for acceptance of responsibility. Defendant did not accept responsibility for the crime charged before or during trial or in his presentence report. His first acknowledgement of responsibility came at the sentencing hearing, which the district court found to be untimely. U.S. v. Dennison, 937 F.2d 559 (10th Cir. 1991).
10th Circuit upholds refusal to find acceptance of responsibility when defendant did no more than express regret. (488) Defendant pled guilty to transporting a minor in interstate commerce with intent that she engage in prostitution and sexual activity. He claimed that the district court erred in failing to grant him a reduction for acceptance of responsibility because he expressed remorse just prior to sentencing. The 10th Circuit disagreed, finding that the district court’s determination was not clearly erroneous. The presentence report had indicated that the defendant was unable to honestly acknowledge his role in the offense and recommended against the reduction. “When a defendant fails to acknowledge personal responsibility during the presentence investigation, such failure cannot be overcome merely by a perfunctory expression before the district court at sentencing.” The defendant’s 11th hour expression of remorse brought into question sincere contrition over his criminal conduct, and the denial of the benefit was not clearly erroneous. U.S. v. Wach, 907 F.2d 1038 (10th Cir. 1990).
11th Circuit reverses acceptance reduction for defendant who “made it clear” that he thought he was innocent. (488) Defendant, a private health care consultant, several others, and ten home healthcare agencies were convicted of multiple counts of Medicare fraud. The Eleventh Circuit held that the district court clearly erred when it reduced defendant’s sentence for acceptance of responsibility. Defendant put the government to its burden at trial, contested two essential elements of his guilt, moved to vacate his conviction, and then appealed the reinstatement of the jury verdict. Defendant could not have made it clearer than he thought he was innocent. Nothing in the record supported an adjustment for acceptance of responsibility. U.S. v. Gupta, 572 F.3d 878 (11th Cir. 2009).
11th Circuit rejects acceptance reduction for defendant who stipulated to elements of offense on the eve of bench trial. (488) Although defendant stipulated to the elements of his crime, he did so on the eve of a bench trial and after unsuccessfully moving to suppress the evidence against him. The Eleventh Circuit held that the district court was entitled to find that defendant had not accepted responsibility. By challenging the admissibility of the evidence against him, defendant attempted to avoid a determination of factual guilt and to escape responsibility for his crime. U.S. v. Knight, 562 F.3d 1314 (11th Cir. 2009).
11th Circuit holds that defendant should not be denied acceptance reduction based on pre-indictment conduct. (488) The district court found that defendant had not accepted responsibility because after his initial arrest for possession of a firearm (December 2003), he committed the same offense several months later (May 2004). Defendant argued that the focus should be on his conduct after federal charges were brought, which did not happen until July 2004. There was no dispute that after the federal charges were brought, defendant “did everything right.” The Eleventh Circuit held that the court should not have denied defendant the acceptance reduction. A defendant’s conduct following earlier state charges, at least where that conduct occurred before he knows that federal charges were forthcoming, ought not to vitiate the effect of his otherwise exemplary acceptance of responsibility once the federal charges are filed. The commencement of federal charges against the defendant should have been the starting point for measuring his acceptance of responsibility. U.S. v. Wade, 458 F.3d 1273 (11th Cir. 2006).
11th Circuit holds that court was not obligated to consider new request for reduction at resentencing. (488) On defendant’s first appeal, the Eleventh Circuit vacated a leadership increase and remanded for the district court to make more detailed findings of fact. At resentencing, in addition to arguing that defendant was not a leader, defense counsel requested a one-level acceptance of responsibility reduction for timely notifying authorities of his intention to plead guilty. The Eleventh Circuit held that the district court was not required to consider this argument, which defendant should have raised earlier. Requiring the district court to consider the argument at the resentencing would give defendants incentive to introduce sentencing objections in a piecemeal fashion and allow them to avoid the difficult burden of plain error review. U.S. v. Mesa, 247 F.3d 1165 (11th Cir. 2001).
11th Circuit rules that defendant must accept responsibility for all of his crimes. (488) Defendant pled guilty to two drug counts, but not to a firearms count. He sought an acceptance of responsibility reduction based on his guilty plea to the drug crimes. The Eleventh Circuit held that in order to receive a § 3E1.1 reduction, a defendant must accept responsibility for all of the crimes for which he is being sentenced. This is in accord with the decisions of other circuits. See, e.g. U.S. v. Chambers, 195 F.3d 274 (6th Cir. 1999); U.S. v. Ginn, 87 F.3d 367 (9th Cir. 1996); U.S. v. Kleinebreil, 966 F.2d 945 (5th Cir. 1992); U.S. v. McDowell, 888 F.2d 285 (3d Cir. 1989). U.S. v. Thomas, 242 F.3d 1028 (11th Cir. 2001).
11th Circuit rejects acceptance reduction. (488) At defendant’s first sentencing hearing, the judge cautioned defendant that he would not automatically receive an acceptance of responsibility reduction simply because the probation officer recommended it. The judge gave defendant ample time to present evidence of his acceptance of responsibility, but defendant did not do so. After the case was remanded for resentencing because of an improper enhancement, defendant asked to address the court. He stated “I’d like to apologize to [the bank tellers]. I realize that … what I did was wrong. I was under the influence at the time. And I do apologize to the victims and this Court.” The Eleventh Circuit found no error in the district court’s denial of the acceptance reduction at the second sentencing hearing. Defendant did not plead guilty until three months after his arrest. In addition, the record was devoid of facts sufficient to clearly establish that defendant accepted personal responsibility for his actions. Without them, the district court’s finding that defendant was not entitled to an acceptance of responsibility reduction would not be overturned. U.S. v. Sawyer, 180 F.3d 1319 (11th Cir. 1999).
11th Circuit holds that guilty plea after denial of motion to suppress was not timely. (488) Defendant pled guilty to drug crimes and received a two-level acceptance of responsibility reduction. The Eleventh Circuit rejected defendant’s claim that he was entitled to a three-level reduction where there was no evidence that he provided information to the government, and he did not plead guilty until after the denial of his motion to suppress. Defendant was indicted December 1, 1995, and arraigned January 18, 1996. On February 13, he moved to suppress evidence. The court denied this motion March 1, and on March 4, the day of trial, defendant pled guilty. As a general rule, pleas on the eve of trial are not timely. Defendant was not improperly penalized for exercising his right to seek suppression of evidence. U.S. v. Gilbert, 138 F.3d 1371 (11th Cir. 1998).
11th Circuit says denial of acceptance credit can be based on assertion of a constitutional right. (488) 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, en banc, considers nature of challenges to PSR in rejecting acceptance credit. (488) Defendant pled guilty to check kiting. After he objected to several paragraphs of the PSR, the probation officer withdrew her recommendation that he receive an acceptance of responsibility reduction. In U.S. v. Smith, 106 F.3d 350 (11th Cir. 1996), rehearing en banc granted, opinion vacated by U.S. v. Smith, 112 F.3d 473 (11th Cir. 1997), the court ruled that a defendant may not be denied an acceptance of responsibility reduction “solely for exercising the right to challenge the legal propriety of his punishment under the criminal code and/or sentencing guidelines.” The Eleventh Circuit, en banc, held that this language went too far. A district court may deny an acceptance of responsibility reduction even when that conduct includes the assertion of a constitutional right. Frivolous legal challenges can suggest that the defendant has not accepted responsibility for his conduct. Therefore, when determining whether a defendant should receive an acceptance of responsibility reduction, a district court may consider the nature of such challenges along with the other circumstances in the case. Although defendant characterized his objections to the PSR as legal, he was claiming he did not possess fraudulent intent with respect to both offense conduct and relevant conduct. This amounted to a denial of factual guilt. U.S. v. Smith, 127 F.3d 987 (11th Cir. 1997) (en banc).
11th Circuit says decision to grant 3-level acceptance reduction is a matter of timeliness. (488) Defendant argued that the court misapplied the guidelines by granting him only a two level reduction, instead of a three level reduction, after it found that he had accepted responsibility under § 3E1.1. The Eleventh Circuit, relying on U.S. v. McPhee, 108 F.3d 287 (11th Cir. 1997) found that the additional one level reduction may have been denied on improper grounds. Once a defendant is awarded a two-level reduction for acceptance of responsibility, the question of whether to grant the additional one-level reduction is only a matter of deciding whether defendant timely provided information and notified authorities of his intention to enter a guilty plea. U.S. v. Johnson, 132 F.3d 628 (11th Cir. 1998).
11th Circuit denies 3rd level credit for untimely plea in one of two consolidated cases. (488) Defendant committed two bank robberies in Alabama and one in Florida. He first pled guilty in federal court to the Alabama robberies. Under a plea agreement, the Florida case was later transferred to the Alabama district court for a guilty plea and sentencing. Sentencing for all 3 robberies was consolidated. The district court granted defendant a two level acceptance of responsibility reduction but found that since his guilty plea to the Alabama robberies was not timely, he did not deserve a further one point reduction. Defendant argued that his timely plea in the Florida robbery merited the additional one level reduction. The Eleventh Circuit held that the court properly denied the reduction based upon defendant’s failure to timely plead guilty in the Florida case. When there are multiple counts of conviction, the acceptance of responsibility reduction is made after all the offenses have been aggregated pursuant to § 1B1.1. A defendant must accept responsibility for each crime on which he is being sentenced. U.S. v. Bourne, 130 F.3d 1444 (11th Cir. 1997).
11th Circuit refuses to review § 3E1.1 claim raised for first time on appeal where other factors were clearly proper. (488) Defendant argued that he was entitled to an acceptance of responsibility reduction because he pled guilty in a timely fashion before trial and told the truth about his offense conduct. However, defendant tested positive for drug use during his pretrial release and associated with people smoking marijuana. The district court held that those factors outweighed the evidence of acceptance of responsibility. Defendant argued for the first time on appeal that the court also improperly considered defendant’s prior criminal conviction. The Eleventh Circuit refused to consider defendant’s argument because it was raised for the first time on appeal. Because the properly considered factors were sufficient to deny the § 3E1.1 reduction, the court would not hear defendant’s argument about the erroneous consideration of an additional factor that was not presented to the district court. U.S. v. Gonsalves, 121 F.3d 1416 (11th Cir. 1997).
11th Circuit denies § 3E1.1 reduction where defendant denied factual guilt. (488) Defendant was convicted of drug offenses. At trial, he had defended on the basis of the statute of limitations. He admitted that he had dealt marijuana previously, but argued that there was no evidence of a criminal act past the limitation period. The Eleventh Circuit affirmed the denial of an acceptance of responsibility reduction because defendant continued to deny his factual guilt. U.S. v. Dodd, 111 F.3d 867 (11th Cir. 1997).
11th Circuit says § 3E1.1(b) reduction can only be denied for untimeliness. (488) Defendant pled guilty to drug charges. While on pretrial supervision at a halfway house, the government learned defendant planned to escape and successfully moved to revoke his conditional release. At sentencing, the district court found that defendant had accepted responsibility but denied him the third level reduction under § 3E1.1(b) because of the attempted escape. On appeal, the Eleventh Circuit reversed, holding that once a court determines that a defendant qualifies for a § 3E1.1(a) reduction, the court cannot withhold the additional one point § 3E1.1(b) reduction for reasons unrelated to the timeliness of the cooperation. Any obstructionist conduct following the guilty plea is irrelevant to the additional one level reduction in § 3E1.1(b). U.S. v. McPhee, 108 F.3d 287 (11th Cir. 1997).
11th Circuit denies reduction where defendant did not admit conduct was improper. (488) Defendant argued that the district court’s refusal to grant him a § 3E1.1 acceptance of responsibility reduction amounted to a penalty for exercising his 6th Amendment right to trial by jury. The Eleventh Circuit disagreed. A defendant bears the burden of proving that he should be given credit for acceptance of responsibility. Defendant claimed he cooperated fully with authorities and had not denied any of the alleged overt acts. However, the court denied defendant the reduction because defendant did not accept responsibility at all. At sentencing, defendant maintained that the acts underlying his conviction were not improper. U.S. v. Calhoon, 97 F.3d 518 (11th Cir. 1996).
11th Circuit finds no acceptance of responsibility for giving old address on ATF forms. (488) Defendant purchased and then illegally resold more than 150 handguns. He was convicted of making false statements on the ATF forms. He had not lived at the address that he used on the forms for about eight months, but explained that he had given that address because it was the address on his ID and because he had not yet established another permanent address. The Eleventh Circuit upheld the denial of an acceptance of responsibility reduction. The district court adopted the government’s reasoning that defendant did not deserve the reduction because he had not admitted that he knew he was acting illegally. Defendant put the government to its burden of proof at trial. He maintained throughout his trial that he had never intentionally lied on the ATF forms, and that his use of an address where he no longer lived was due to the form’s vagueness. U.S. v. Sanchez‑Corcino, 85 F.3d 549 (11th Cir. 1996), abrogated on other grounds by Bryan v. U.S., 524 U.S. 194, 118 S.Ct. 1939 (1998).
11th Circuit denies reduction where defendant did not assist in finding missing $7.4 million. (488) Defendant ran a Ponzi scheme. The government was able to trace all but $7.4 million of the $27 million he collected from investors. The Eleventh Circuit affirmed the denial of an acceptance of responsibility reduction, since defendant did not offer an explanation for or assistance in recovering the $7.4 million. Furthermore, he told the probation officer that the company did not begin as a fraudulent business and later testified in bankruptcy court as to his real intent. Despite substantial evidence to the contrary, defendant testified at sentencing that he never meant to hurt anyone. U.S. v. Mullens, 65 F.3d 1560 (11th Cir. 1995).
11th Circuit denies reduction where defendant claimed that substance seized was baking powder. (488) Defendant argued that he accepted responsibility because he was prepared to plead guilty to the drug offenses but did because the government would not dismiss the firearm charge for which he was eventually acquitted. The 11th Circuit ruled the reduction was properly denied because defendant argued that the cocaine base introduced at trial was not the substance seized on the night of his arrest. He alleged that the substance found under the dashboard of his car on the night of his arrest was merely baking powder, not cocaine. U.S. v. Stanley, 24 F.3d 1314 (11th Cir. 1994).
11th Circuit denies reduction where defendant did not act timely and falsely denied participation in conspiracy. (488) Defendant argued that the district court denied him a reduction for acceptance of responsibility because he exercised his right to object to an enhancement. The 11th Circuit held that the denial of the reduction was properly based on defendant’s failure to timely provide information regarding his involvement in the offense, his failure to plead guilty until he had been jailed for three months, and his false denial of participation in the conspiracy. U.S. v. Anderson, 23 F.3d 368 (11th Cir. 1994).
11th Circuit denies reduction to defendant who continued to deny involvement in conspiracy. (488) Defendant argued that he should have been granted a two point reduction for acceptance of responsibility because he admitted his “limited involvement” in the cocaine conspiracy. The 11th Circuit upheld the denial of the reduction, since defendant never admitted that he had any part in the conspiracy, despite the jury’s verdict finding him guilty. U.S. v. Saget, 991 F.2d 702 (11th Cir. 1993).
11th Circuit denies acceptance of responsibility reduction where defendant did not admit all drugs. (488) Defendant told the probation officer he transported one and one-half kilograms of cocaine base on four occasions. At sentencing, he only admitted to transporting a total of one and one-half kilograms of cocaine base. The 11th Circuit upheld the denial of a reduction for acceptance of responsibility, based on defendant’s limited admission. U.S. v. Charo, 996 F.2d 1169 (11th Cir. 1993).
11th Circuit defers to lower court’s determination that defendant did not accept responsibility. (488) Defendant challenged the district court’s refusal to grant him a reduction for acceptance of responsibility. Although acknowledging it was a “close question,” the 11th Circuit deferred to the district court’s decision. Defendant pled guilty and cooperated with authorities. However, his probation officer testified that defendant did not seem at all remorseful. In addition, the lower court found that although defendant expressed regret, this expression was late in coming. U.S. v. Paslay, 971 F.2d 667 (11th Cir. 1992).
11th Circuit upholds denial of reduction to defendant who blamed others for his involvement. (488) Defendant argued that it was error to deny him a reduction for acceptance of responsibility since there was no factual basis in the record for the denial of his request. The 11th Circuit rejected this contention, since the defendant has the burden of proving his entitlement to such a reduction. Defendant’s admission of involvement in the crime did not necessarily amount to an affirmative acceptance of personal responsibility for his criminal conduct. Defendant continued to blame his involvement on others, and did not point to anything else in the record indicating his acceptance of responsibility. U.S. v. Shores, 966 F.2d 1383 (11th Cir. 1992).
11th Circuit affirms that defendant who submitted statement after trial did not accept responsibility. (488) The 11th Circuit affirmed the district court’s determination that a defendant convicted of possessing homemade pipe bombs and grenades in his house did not accept responsibility for the offense. He was not denied the reduction simply because he pled not guilty and chose to go to trial. After his trial and prior to sentencing, defendant submitted a signed statement to the court stating that he took responsibility for committing the charged crimes. Prior to this, he gave no indication of acceptance of responsibility. Even at sentencing, defendant showed no regret for his acts. When asked by the court what he would like to say in mitigation of punishment, defendant merely stated, “The only thing I can say, I take responsibility for the devices.” U.S. v. Dempsey, 957 F.2d 831 (11th Cir. 1992).
11th Circuit affirms reduction for acceptance of responsibility even though defendant’s statement was subject to interpretation. (488) The district court granted defendant a reduction for acceptance of responsibility based upon a statement written by defendant but read at sentencing by defense counsel because defendant was “overcome by emotion.” The government appealed, claiming that defendant never admitted culpability in the statement. The closest she came was “I am guilty with being involved with the wrong people. I realize how foolish I was. My mistakes resulted in my being here.” Nevertheless, the government contended that defendant continued to maintain her innocence and denied ever being involved with drugs. The 11th Circuit refused to reverse the acceptance of responsibility reduction, noting that since defendant’s statement was capable of varying interpretations, deference should be granted to the trial judge who can weigh the credibility of such statements. U.S. v. Stubbs, 944 F.2d 828 (11th Cir. 1991).
11th Circuit rejects acceptance of responsibility reduction despite defendant’s cooperation. (488) The 11th Circuit rejected defendant’s contention that he was entitled to a reduction for acceptance of responsibility based on his voluntary assistance to authorities. “It is clear that a court can recognize a defendant’s cooperation with the government yet still deny the two-point reduction under this guideline.” In this case, defendant pled not guilty and went to trial, denied any responsibility for assaulting an informant and claimed to have acted in self-defense. U.S. v. Bennett, 928 F.2d 1548 (11th Cir. 1991), superseded on other grounds by guideline as stated in U.S. v. Smith, 127 F.3d 1388 (11th Cir. 1997).
11th Circuit denies acceptance of responsibility reduction to defendant who did not discuss offense until sentencing. (488) The 11th Circuit affirmed the district court’s denial of a reduction for acceptance of responsibility. The district court had held a hearing to consider defendant’s request and denied it after finding that defendant allowed the case to proceed to trial and did not wish to comment on his involvement in the offense until he was actually sentenced. U.S. v. Graham, 931 F.2d 1442 (11th Cir. 1991).
11th Circuit rejects acceptance of responsibility reduction despite defendant’s cooperation. (488) The 11th Circuit rejected defendant’s contention that he was entitled to a reduction for acceptance of responsibility based on his voluntary assistance to authorities. “It is clear that a court can recognize a defendant’s cooperation with the government yet still deny the two-point reduction under this guideline.” In this case, defendant pled not guilty and went to trial, denied any responsibility for assaulting an informant and claimed to have acted in self-defense. U.S. v. Bennett, 928 F.2d 1548 (11th Cir. 1991), superseded on other grounds by guideline as stated in U.S. v. Smith, 127 F.3d 1388 (11th Cir. 1997).
11th Circuit denies acceptance of responsibility reduction to defendant who did not discuss offense until sentencing. (488) The 11th Circuit affirmed the district court’s denial of a reduction for acceptance of responsibility. The district court had held a hearing to consider defendant’s request and denied it after finding that defendant allowed the case to proceed to trial and did not wish to comment on his involvement in the offense until he was actually sentenced. U.S. v. Graham, 931 F.2d 1442 (11th Cir. 1991).
11th Circuit finds no acceptance of responsibility by defendant who hid assets and made limited admission of guilt. (488) Defendant argued that his guilty plea, his admission to distributing cocaine between 1980 and 1984, and his consent to the forfeiture of various assets entitled him to a two level reduction for acceptance of responsibility. The 11th Circuit rejected this argument, noting that defendant had continued to hide his assets after his indictment and arrest, and denied his involvement in the conspiracy after 1984. U.S. v. Pritchett, 908 F.2d 816 (11th Cir. 1990).
11th Circuit holds that defendant did not accept responsibility even though he admitted the offense at trial. (488) After the bank robbery, defendant took flight and was apprehended and subdued only after a several block chase and a several minute struggle with law enforcement officers. He made no admissions, first refusing to give any name at all and then giving a false name. The demand note had to be “pried from his fingers.” At his bank robbery trial he conceded that he was guilty of the less serious offense of bank larceny, and the jury acquitted him of the more serious bank robbery offense. The 11th Circuit agreed with the district court that his admission to bank larceny was simply a “trial tactic” that did not entitle him to credit for acceptance of responsibility. U.S. v. Jones, 899 F.2d 1097 (11th Cir. 1990), overruled on other grounds by U.S. v. Morrill, 984 F.2d 1136 (11th Cir. 1993).
11th Circuit finds no acceptance of responsibility where defendant said bank robbery was an “accident” resulting from “joking around.” (488) In an interview with the probation officer, the defendant denigrated the seriousness of the crime, saying it was an “accident” or and “incident” which resulted from “joking around.” The district court ruled that the defendant had not accepted responsibility and on appeal the 11th Circuit agreed. U.S. v. Campbell, 888 F.2d 76 (11th Cir. 1989).
D.C. Circuit denies third-level reduction to fugitive who did not accept responsibility until he was re-arrested. (488) Defendant failed to appear for his arraignment, and remained a fugitive for 11 months, until he was arrested for a new drug offense. The district court granted him a two-level acceptance of responsibility reduction, but denied him the additional third-level reduction. The D.C. Circuit affirmed. The district court properly held defendant’s acceptance of responsibility, which did not occur until after he was re-arrested for another crime, was insufficiently timely to warrant a reduction under § 3E1.1(b). U.S. v. Reeves, 586 F.3d 20 (D.C. Cir. 2009).
D.C. Circuit denies third-level reduction to fugitive who did not accept responsibility until he was re-arrested. (488) Defendant failed to appear for his arraignment, and remained a fugitive for 11 months, until he was arrested for a new drug offense. The district court granted him a two-level acceptance of responsibility reduction, but denied him the additional third-level reduction. The D.C. Circuit affirmed. The district court properly held defendant’s acceptance of responsibility, which did not occur until after he was re-arrested for another crime, was insufficiently timely to warrant a reduction under § 3E1.1(b). U.S. v. Reeves, 586 F.3d 20 (D.C. Cir. 2009).
D.C. Circuit denies § 3E1.1 reduction where defendant denied early involvement in drug conspiracy. (488) Defendant asserted that he accepted responsibility for transferring a drug shipment on November 10 to an undercover agent in exchange for $7,000. The D.C. Circuit affirmed the denial of the § 3E1.1 reduction because defendant denied any involvement in the conspiracy before November 10 and claimed that his delivery of the seven kilograms was coerced. Defendant only admitted to a limited role. U.S. v. Gaviria, 116 F.3d 1498 (D.C. Cir. 1997).
D.C. Circuit finds entrapment defense inconsistent with acceptance of responsibility. (488) Defendant sold crack to an undercover agent. At trial, he raised an entrapment defense, claiming he was induced to sell crack by a threat on his life from an informant. At sentencing, defense counsel argued that the entrapment defense did not show a lack of acceptance of responsibility under § 3E1.1. The D.C. Circuit held that defendant’s entrapment claim was inconsistent with acceptance of responsibility. Defendant was in effect claiming that he accepted responsibility even though he was not responsible for his acts. Unlike some Circuits, the court said it was unable to hypothesize a case in which a plea of entrapment would not be inconsistent with acceptance of responsibility. But even if such a case existed, this was not it. Defendant’s claim was that the acceptance of responsibility reduction should rest only on his admission that he performed the acts in question. U.S. v. Kirkland, 104 F.3d 1403 (D.C. Cir. 1997).
D.C. Circuit finds no acceptance where defendant blamed crime on “military conditioning.” (488) Defendant was one of several car salesmen caught in a sting operation in which an undercover officer posed as a drug dealer seeking to buys cars with the cash proceeds of cocaine sales. The D.C. Circuit upheld the district court’s rejection of the PSR’s recommendation that defendant receive an acceptance of responsibility reduction. Although defendant expressed regret to both his probation officer and the court, he blamed his misconduct on his six years of military “conditioning” to follow orders and his 13 years of conditioning to sell cars. U.S. v. Spriggs, 102 F.3d 1245 (D.C. Cir. 1996).
D.C. Circuit finds decision to plead came too late to conserve judicial resources. (488) In May 1992 defendant was indicted and charged with bank robbery. During a June 12 discovery conference, the government tendered a formal plea offer. Defendant declined. The court then scheduled trial for September 29, and on June 19 defendant absconded from the halfway house in which he was staying. He was later apprehended, and on September 8, defendant told counsel he wanted to plead guilty. The same day counsel notified the prosecutor that he wanted to negotiate a plea agreement. The district court accepted his plea on October 5. The D.C. Circuit rejected defendant’s claim that his counsel was ineffective in not requesting a one level acceptance of responsibility reduction under § 3E1.1(b)(2). The district court properly determined that defendant’s decision to plead guilty came too late to conserve judicial resources. The court was not informed of defendant’s decision to plead guilty until three months after setting a trial date, and the case was not removed from the court’s trial calendar until six days before the scheduled trial date. Although the record did not show when the prosecutor notified the court of defendant’s plea change, defendant bore the blame for any deficiencies in the record. U.S. v. Williams, 86 F.3d 1203 (D.C. Cir. 1996).
D.C. Circuit considers timeliness in deciding whether defendant qualifies for two-point reduction. (488) The district court denied defendant an acceptance of responsibility reduction because he did not provide timely information to the government, and put the government to its burden of proof at trial. Defendant argued that timeliness is only relevant to whether an additional one-point reduction is warranted under § 3E1.1(b). The D.C. Circuit disagreed, finding that timeliness is also a consideration in determining whether the defendant qualifies for the initial two-point reduction. However, it was possible that the district court incorrectly applied a per se rule that the decision to go to trial automatically precludes an acceptance of responsibility reduction. This would be plain error. However, defendant could not show that this plain error prejudiced him, since it was unlikely that this was a rare situation in which a defendant who goes to trial also accepts responsibility. U.S. v. Mitchell, 49 F.3d 769 (D.C. Cir. 1995).
D.C. Circuit denies adjustment for defendant who admitted only some crimes. (488) Defendant admitted under oath that she sold narcotics to a police officer, but she claimed that a police officer was mistaken in thinking she agreed to help him buy more. Based on her denial, the district court denied her request for a downward adjustment for acceptance of responsibility. The D.C. Circuit noted that denial of the adjustment is warranted when a defendant fails to accept responsibility for all conduct related to the offense of conviction. It accordingly held that the district court did not abuse its “wide discretion” in denying the adjustment. U.S. v. Monroe, 990 F.2d 1370 (D.C. Cir. 1993).
D.C. Circuit denies acceptance of responsibility reduction to defendant who pled guilty to protect co-defendant. (488) The district court believed that defendant pled guilty for reasons other than a sincere acceptance of responsibility, i.e., he pled guilty to protect his co-defendant, who defendant claimed was not involved in the drug transaction. The D.C. Circuit affirmed that the denial of a reduction for acceptance of responsibility was not clearly erroneous, since the judge was in the best position to make that credibility determination. U.S. v. Washington, 969 F.2d 1073 (D.C. Cir. 1992).
D.C. Circuit denies acceptance of responsibility reduction to defendant who made excuses for his conduct. (488) Defendant was convicted of being a felon in possession of a firearm, and complained that he should have received a reduction for acceptance of responsibility. The D.C. Circuit affirmed the denial of the reduction based upon defendant’s excuses for his conduct (he claimed he was merely returning the guns to his brother). There is a difference between admitting the acts and accepting responsibility for the crimes. U.S. v. Cutchin, 956 F.2d 1216 (D.C. Cir. 1992).
D.C. Circuit denies acceptance of responsibility reduction where defendants lied about circumstances of crime. (488) Defendants were arrested driving a car with loaded firearms and wearing bullet-proof vests. They were convicted of being felons in possession of a firearm. Although defendants admitted possessing the weapons, they claimed that two of them were purchasing the weapons and vests from the third defendant, and that they were on their way to test them. The district court found this story incredible and denied them a reduction for acceptance of responsibility. The D.C. Circuit agreed, rejecting the argument that this violated their 5th Amendment rights by coercing an explanation of their “related conduct.” “The district court properly interpreted the guideline to require a truthful and complete explanation of, and a genuine acceptance of responsibility for, all of the circumstances surrounding the defendants’ firearm possession offense. It was not error for the district court to require an acceptance of responsibility that extended beyond the narrow elements of the offense.” U.S. v. Taylor, 937 F.2d 676 (D.C. Cir. 1991).
D.C. Circuit denies acceptance of responsibility reduction to defendant who claimed drugs were for his personal use. (488) Defendant was convicted of possession of cocaine with intent to distribute. The D.C. Circuit upheld the district court’s denial of a reduction for acceptance of responsibility. Defendant disputed throughout trial that he intended to distribute the drugs, contending that the drugs were for his personal use, denied that the ziplock bags were his, and claimed that the cash found with the drugs was savings to repay a student loan. U.S. v. Bruce, 939 F.2d 1053 (D.C. Cir. 1991).
Commission limits government’s ability to withhold third level credit for acceptance of responsibility. (488) The Commission amended Application Note 6 to §3E1.1 to bar the government from refusing to file a motion for the third level reduction for acceptance of responsibility based on interests not identified in § 3E1.1, such as whether the defendant agrees to waive his or her right to appeal. This amendment follows U.S. v. Divens, 650 F.3d 343, 348 (4th Cir. 2011), and U.S. v. Lee, 653 F.3d 170, 175 (2d Cir. 2011). See also U.S. v. Davis, 714 F.3d 474 (7th Cir. 2013) (Rovner, J., concurring). The amendment abrogates rulings in several circuits that a defendant’s refusal to sign an appellate waiver is a legitimate reason for the government to withhold a § 3E1.1(b) motion. See, e.g., U.S. v. Johnson, 581 F.3d 994, 1002 (9th Cir. 2009); U.S. v. Deberry, 576 F.3d 708, 711 (7th Cir. 2009); U.S. v. Newson, 515 F.3d 374, 378 (5th Cir. 2008). The Commission also added that if the government files such a motion and the court finds that the conditions have been met, it should grant the motion, thus affirming U.S. v. Mount, 675 F.3d 1052 (7th Cir. 2012), and abrogating U.S. v. Williamson, 598 F.3d 227, 230 (5th Cir. 2010), which held that the court retained discretion to deny the motion. Amendment 775, effective Nov. 1, 2013.