§490 Acceptance of Responsibility: Effect of Guilty Plea
8th Circuit denies acceptance credit despite guilty plea to some counts before trial. (490) Three days before trial, defendant pleaded guilty to drug trafficking, and he was convicted at trial of possessing a firearm during the drug-trafficking At sentencing for both offenses, the district court denied a reduction for acceptance of responsibility under § 3E1.1. On appeal, the Eighth Circuit affirmed, because defendant’s plea to the drug-trafficking charge was untimely and he contested the firearms charge at trial. U.S. v. Vang, __ F.3d __ (8th Cir. July 7, 29021) No. 20-2005.
8th Circuit allows consideration of pre-guilty plea conduct in deciding acceptance of responsibility. (490) Defendant pleaded guilty to being a felon in possession of a firearm. Prior to his plea, he participated in stabbing another inmate. At sentencing, the district court denied credit for acceptance of responsibility because defendant had continued to associate with known felons during the assault. The Eighth Circuit affirmed, ruling that a defendant’s pre-plea conduct can be considered in determining whether defendant has accepted responsibility for the offense. U.S. v. Cooper, __ F.3d __ (8th Cir. May 25, 2021) No. 20-1183.
5th Circuit affirms denying acceptance reduction to defendant who denied evidence against him. (490) Defendant pleaded guilty to sex trafficking a minor. He later tried to withdraw his plea, arguing that most of the evidence against him was inauthentic. At sentencing, the district court denied a reduction for acceptance of responsibility under § 3E1.1 because he had disputed the evidence against him. The Fifth Circuit affirmed, finding no abuse of discretion. U.S. v. Smith, __ F.3d __ (5th Cir. Oct. 8, 2020) No. 19-30711.
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.
1st Circuit finds no error in court’s comments that defendant was unwise not to have pled guilty. (490) (742) Defendant and three family members ran an illicit, indoor marijuana farm, and were convicted of marijuana conspiracy charges. She argued that her 78-month sentence was unreasonable because the court said, at sentencing, that defendant would have received a lower sentence if she had pled guilty. Defendant claimed that she could not have avoided a trial because the government never offered her a plea deal. The First Circuit held that defendant’s sentence was substantively reasonable. She plainly had the option of a straight plea of guilty under Federal Rule of Criminal Procedure 11(a). Had she done so, she might have had a shot at a §3E1.1 reduction for acceptance of responsibility, and she would have had no occasion to “appall the trial judge with testimony that he found to contain repeated lying,” which resulted in an §3C1.1 enhancement for obstruction of justice. The court’s comment that defendant was unwise to not have pled guilty was a fair comment, and not an abuse of discretion. U.S. v. Ford, __ F.3d __ (1st Cir. Apr. 13, 2016) No. 15-1303.
8th Circuit denies acceptance reduction to defendant who went to trial. (490) Defendant was convicted of abusive sexual contact of a child under 12 years of age. The district court adopted the PSR’s recommendation to deny a reduction for acceptance of responsibility under §3E1.1 because defendant put the government to its burden of proof at trial. At sentencing and on appeal, defendant argued he deserved the reduction because he admitted the act and only went to trial on the legal question of whether he could formulate the requisite criminal mens rea, given his level of intoxication. The Eighth Circuit held that the district court did not abuse its discretion or clearly err in denying the acceptance reduction. Although defendant confessed to sexual contact with the victim, he did not stipulate to his conduct at trial, thereby requiring the government to call both an FBI agent who interviewed defendant and the victim to testify to the events. Defendant was not the rare defendant who “goes to trial to assert and preserve issues that do not relate to factual guilt.” U.S. v. Thunderhawk, __ F.3d __ (8th Cir. Aug. 27, 2015), as amended Sept. 15, 2015, No. 14-3136.
7th Circuit denies acceptance reduction where defendant repeatedly attempted to withdraw plea. (490) The district court denied defendant an acceptance of responsibility reduction based on his “ill-fated attempts” to withdraw his guilty plea. The Seventh Circuit noted that “longstanding precedent” allowed the court “to withhold the adjustment for that reason alone.” See. e.g., U.S. v. Price, 988 F.2d 712 (7th Cir. 1993) and U.S. v. Trussel, 961 F.2d 685 (7th Cir. 1992). Defendant’s late effort to escape from his guilty plea (the second motion filed two days before sentencing) was “discordant” with his claim of acceptance of responsibility. The sentencing judge’s decision was bolstered by a finding of defendant’s disingenuous behavior: he had a “demonstrated lack of credibility.” Moreover, defendant “point[ed] to no actual instances of his acceptance of responsibility.” U.S. v. Collins, __ F.3d __ (7th Cir. Aug. 11, 2015) No. 14-3427.
1st Circuit says court should have resolved claim that government improperly refused to move for acceptance reduction. (480)(490) Defendant requested a one-level acceptance of responsibility reduction without a government motion under §3E1.1(b), claiming that the government improperly withheld the motion because it wanted to punish him for spurning a plea agreement. The district court did not resolve this claim, concluding that it lacked discretion to grant the reduction without a government motion. However, in U.S. v. Beatty, 538 F.3d 8 (1st Cir. 2008), the First Circuit held that a district court may still grant the additional level when the government’s withholding of the predicate motion “was based on an unconstitutional motive” or “was not rationally related to any legitimate government end.” The First Circuit found the district court here overlooked the Beatty exception and, thus, erred as a matter of law. Once the appellant raised a claim that the government withheld its §3E1.1(b) motion for an improper reason, he was entitled to have the district court resolve this point. U.S. v. Melendez-Rivera, __ F.3d __ (1st Cir. Apr. 1, 2015) No. 13-2136.
9th Circuit finds error in withholding third acceptance point in return for appeal waiver. (480)(490) Defendant pleaded guilty to illegal reentry after deportation, in violation of 8 U.S.C. §1326, without a plea agreement. He received a two-level reduction for acceptance of responsibility, but because defendant would not waive his right to an appeal, the government declined to award the defendant a third acceptance-of-responsibility point. The Ninth Circuit held that the government erred in withholding the third point in return for a waiver of defendant’s right to appeal. U.S. v. Sahagun-Gallegos, __ F.3d __ (9th Cir. April 10, 2015) No. 13-10095.
7th Circuit says court did not rely solely on defendant’s nolo contendere plea to reject acceptance reduction. (490) Defendant was convicted of charges based on his involvement in the Outlaws Motorcycle Club. He argued that the district court erred by relying on his plea of nolo contendere to a RICO charge to deny him a sentencing reduction for acceptance of responsibility. Defendant had pleaded guilty to ten underlying offenses, and argued that in order to deny the acceptance reduction, the court should have addressed the factors listed in Note 1 to §3E1.1. The Seventh Circuit found no error. The court did not rely solely on the nature of defendant’s plea, but cited specific facts, such as defendant’s refusal to acknowledge the Outlaws as a criminal organization and his refusal to identify his co-conspirators. Because the district court evaluated the facts surrounding defendant’s plea and made specific observations about his refusal to acknowledge his association with a criminal organization, the district court did not commit reversible error in denying defendant the acceptance reduction. U.S. v. Miller, __ F.3d __ (7th Cir. Mar. 31, 2015) No. 14-1237.
8th Circuit denies acceptance reduction to defendant who attempted to withdraw plea. (490) Defendant argued that the court erred when it refused to give him a two-level sentence acceptance of responsibility reduction under §3E1.1(a). The Eighth Circuit upheld the denial of the reduction. Defendant’s guilty plea by itself did not entitle him to a reduction as a matter of right; defendant had the burden of establishing acceptance of responsibility. The district court did not clearly err in finding that defendant had not met his burden. Defendant’s attempt to withdraw his guilty plea “was inconsistent with the Guidelines’ requirement that the defendant clearly demonstrate[] a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” The district court’s decision was not “without foundation.” U.S. v. Gonzalez, __ F.3d __ (8th Cir. Mar. 23, 2015) No. 14-1422.
8th Circuit denies acceptance reduction despite claim that defendant went to trial for limited purpose. (490) Defendant was a leader of a large conspiracy that created counterfeit identification documents and checks to defraud banks and retailers. He argued on appeal that the district court clearly erred by declining to grant him an acceptance of responsibility reduction, because he admitted to the jury that he defrauded retailers, and went to trial only to argue that he did not violate the federal bank fraud statute because he lacked specific intent to defraud a bank. The Eighth Circuit found no error. This was not one of those “rare situations” where “a defendant who puts the government to its proof at trial and denies factual elements of guilt warrant[s] this adjustment.” Defendant received the specific intent instruction he requested, and the jury still convicted him of bank fraud. U.S. v. Maxwell, __ F.3d __ (8th Cir. Feb. 20, 2015) No. 13-2670.
5th Circuit denies acceptance reduction where defendant continued to assert innocence. (490) Defendant, a former member of the local school board, pledged his support to an applicant for the position of school board superintendent in exchange for $5,000. The Fifth Circuit upheld the denial of an acceptance of responsibility reduction. Defendant put the government to its burden of proof at trial, filed a post-verdict motion for acquittal challenging the sufficiency of the evidence, and continued to assert that he was innocent as late as his factual objections to the PSR. The district court did not err in declining defendant’s request for a § 3E1.1 reduction. U.S. v. Richard, __ F.3d __ (5th Cir. Dec. 29, 2014) No. 13-31044.
Supreme Court vacates Eleventh Circuit case and remands for reconsideration in light of Apprendi. (490) The Eleventh Circuit’s opinion in U.S. v. Garcia, 208 F.3d 1258 (11th Cir. 2000), held that the use of relevant conduct did not violate the extradition statute, that the obstruction enhancement was properly applied for destruction of evidence, and that defendant did not accept responsibility despite his guilty plea. On January 8, 2001, the Supreme Court granted certiorari, vacated the judgment and remanded the case for reconsideration in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Garcia v. U.S., 121 S.Ct. 750 (2001).
1st Circuit rejects acceptance credit where defendant denied at trial conduct he previously admitted. (490) Defendant argued that the court erred in denying him an acceptance of responsibility reduction, pointing out that he detailed his role in the drug scheme in a series of interviews with authorities and even offered to cooperate in the investigation of others. He claimed that he rejected an offered plea agreement because he felt he was being treated unfairly compared to co-conspirators in the scheme. The First Circuit found no error, ruling this was not one of the “rare situations” in which going to trial was compatible with a § 3E1.1(a) reduction. While defendant initially acknowledged his conduct to investigators, he did not do so at trial. At trial, he contested his factual guilt, disputed every aspect of the government’s case and denied his role in the conspiracy. Given this conduct, his reasons for rejecting the government’s offered plea agreement were immaterial. U.S. v. Landron-Class, 696 F.3d 62 (1st Cir. 2012).
1st Circuit denies acceptance reduction to defendant who went to trial only to contest drug weight. (490) Defendant pled guilty to several counts of distributing cocaine base and conspiracy to distribute cocaine base. The issue of the drug weights involved in the offenses was reserved and tried by a jury. During trial, defendant did nothing more than cross-examine witnesses, and the defense rested at the close of the government’s case. He argued that he was entitled to an acceptance of responsibility reduction, despite having gone to trial regarding drug weight, because he pled guilty to the rest of the indictment. The First Circuit upheld the district court’s decision to deny defendant a reduction for acceptance of responsibility. The district court relied on the fact that defendant did not spare the government from the time and expense of a trial. Defendant did not provide any evidence to rebut the presumption that his trial with respect to drug weight made him ineligible for the acceptance reduction. Further, his request for a trial on drug weight was not consistent with acceptance of responsibility for relevant conduct. U.S. v. Garrasteguy, 559 F.3d 34 (1st Cir. 2009).
1st Circuit denies acceptance reduction to defendant who raised “weak” entrapment claim. (490) Defendant argued that he deserved an acceptance of responsibility reduction because he went to trial only to establish a defense of entrapment, not to contest his factual guilt. The First Circuit disagreed. Defendant’s claim of entrapment was so weak that it did not even reach the jury. “Given his election to put the government to its proof at trial in order to explore so asthenic a defense, there [was] no principled way that we can set aside the trial court’s discretionary refusal to discount his sentence for acceptance of responsibility.” U.S. v. Sanchez-Berrios, 424 F.3d 65 (1st Cir. 2005).
1st Circuit denies acceptance reduction to defendant who raised entrapment defense at trial. (490) Defendant claimed that since he never contested his factual guilt, he should qualify for an acceptance of responsibility reduction. Although a defendant who uses an entrapment defense does not always forfeit his chance for the § 3E1.1 adjustment, an adjustment in such a situation will be “rare.” U.S. v. Baltas, 236 F.3d 27, 37 (1st Cir. 2001). The First Circuit ruled that this case did not qualify as one of those exceptions where a defendant who goes to trial deserves the acceptance reduction. Defendant was caught on video and audio selling cocaine to an undercover agent. At trial, he adopted what the judge termed “a very, very weak entrapment defense” and forced the government to bear the burden of proving its case against him. Given all the evidence that the government marshaled against him, it would have been futile for defendant to contest his factual guilt at trial. Given “his continuous refusal to accept responsibility,” the denial of the reduction was not clearly erroneous. U.S. v. Capelton, 350 F.3d 231 (1st Cir. 2003).
1st Circuit denies acceptance reduction where defendant went to trial and contested guilt. (490) Defendant contended that he was entitled to an acceptance of responsibility reduction even though he went to trial. The First Circuit disagreed. First, the record was barren of any pretrial statements or conduct indicating that he accepted responsibility. Second, his situation did not fit any of the examples presented in the guideline commentary, and his situation was by no means rare. Although the trial court dismissed the RICO counts, and the jury reached a not-guilty verdict as to the gun counts, defendant could have pled guilty to the drug count and still gone to trial on the remaining counts. Moreover, from the beginning of the case, defendant contested his guilt. Although defendant told the sentencing judge that he accepted responsibility for what he did, he berated the government for conducting a heroin sting operation, and said “its tough for me to want to say I’m sorry because I’m not. What I’ve done all my life I’ve paid for, I was man enough to stand up and say, okay, I did it. Let me go do my time. This time I didn’t do [it], and I’m going to jail for it.” These were hardly words of contrition. U.S. v. Baltas, 236 F.3d 27 (1st Cir. 2001).
1st Circuit holds that dissatisfaction with plea offer did not entitle defendant who went to trial to claim acceptance reduction. (490) The district court found that this was not one of those rare cases in which a defendant who went to trial and challenged the government’s case should receive an acceptance of responsibility reduction. Defendant argued that he only went to trial (1) to safeguard his objection to the court’s denial of his pretrial motion to suppress certain statements; and (2) because he was dissatisfied with the government’s plea offer. Because the first claim was not raised below, the First Circuit refused to consider it. Moreover, the claim was “spurious” given defendant never even presented the suppression issue in his appellate brief. As to the second claim, a defendant has no right to insist that the prosecutor offer him leniency in exchange for a guilty plea, just as a prosecutor cannot prevent a defendant from acknowledging his guilt. Given this, a defendant cannot use his dissatisfaction with the government’s plea offer as a basis for persisting in an outright denial of all guilt, and undergoing trial, and still claiming an entitlement to an acceptance of responsibility reduction. U.S. v. Franky-Ortiz, 230 F.3d 405 (1st Cir. 2000).
1st Circuit denies acceptance reduction to defendant who made self-defense claim at trial. (490) Defendant, a federal inmate, was convicted of assaulting Santana, a fellow prisoner. Defendant had claimed at trial that Santana had threatened to “crack open” defendant’s head, and that he had received information that Santana planned to attack him. The First Circuit affirmed the denial of an acceptance of responsibility reduction. An assertion of self-defense is a denial of an essential factual element of guilt for the purposes of § 3E1.1 Moreover, defendant failed to identify any statements or conduct tending to establish that he accepted responsibility prior to trial. U.S. v. Bello, 194 F.3d 18 (1st Cir. 1999).
1st Circuit rejects acceptance reduction for defendant who went to trial. (490) Defendant claimed he deserved an acceptance of responsibility reduction because he only went to trial to avoid forfeiture and had expressed remorse. The First Circuit found no error in the court’s denial of the reduction. The district court found that defendant went to trial in order to contest the factual elements of the offenses for which he was charged and the statement of remorse included in the PSR was made by him after his conviction. “The sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility.” USSG § 3E1.1, note 5. U.S. v. Beras, 183 F.3d 22 (1st Cir. 1999).
1st Circuit directs court to clarify reasons for denying acceptance of responsibility reduction. (490) Police found 65 marijuana plants and several guns on defendant’s property. He argued that he was entitled to an acceptance of responsibility reduction because he only went to trial to challenge the intent element of the firearms charges. The First Circuit remanded for a clarification of the court’s reasons for denying the reduction. The sentencing transcript suggested that the district court believed that defendant was not entitled to the reduction because his trial issues were not related to jurisdiction or constitutionality. Under Note 2 to § 3E1.1, in “rare” situations, a defendant may exercise his right to trial and still be eligible for the reduction. These rare situations are not limited to jurisdictional and constitutional matters. In some cases, defenses relating to intent may qualify for the acceptance of responsibility reduction. Although the record indicated that defendant faced an uphill battle in showing his eligibility for the acceptance of responsibility reduction, this was a matter for the district court to determine in the first instance. U.S. v. Ellis, 168 F.3d 558 (1st Cir. 1999).
1st Circuit says defendant who goes to trial to raise constitutional defense still must accept responsibility. (490) At trial, defendant testified that his exchanges of child pornography over the Internet were done in connection with his preparation of a serious book relating to child abuse. He contended that he was entitled to an acceptance of responsibility reduction because he did not contest possessing the pornography and went to trial only to present a First Amendment defense. The First Circuit found no error, because even if defendant’s defense fell within the spirit of note 2 to § 3E1.1, the comment did little more than remove one barrier to receiving the reduction. A defendant must still affirmatively show that he accepted responsibility for his offense. In this case, the district judge ruled that the factual premise of the defense was untrue. The jury found that defendant’s conduct had not been prompted solely by literary ambition. Over many years of purported book writing, defendant had written only a few pages of this supposed work. A defendant who presents false testimony at trial, in an effort to minimize his culpability, does not deserve an acceptance of responsibility reduction. U.S. v. Upham, 168 F.3d 532 (1st Cir. 1999).
1st Circuit denies reduction to defendant who presented multiple conspiracies argument at trial. (490) Defendant was convicted by a jury of conspiracy to possess multiple kilograms of cocaine with intent to distribute. He claimed that his “not guilty” plea should not preclude him from receiving a reduction for acceptance of responsibility, because he went to trial merely to pursue a multiple conspiracies argument. The First Circuit affirmed the denial of the § 3E1.1 reduction, since defendant did not offer any support for his claim that his multiple conspiracy argument was a legal issue rather than a simple issue related to factual guilt. Also, he offered no clear expression of contrition before trial. U.S. v. Portela, 167 F.3d 687 (1st Cir. 1999).
1st Circuit says guilty plea does not create presumption of reduction under § 3E1.1. (490) Defendant argued that § 3E1.1 creates a rebuttable presumption that a defendant who has pled guilty has carried his burden of proving he has accepted responsibility, even if the record discloses no affirmative manifestation of remorse. The First Circuit rejected this contention. The guideline commentary plainly provides that a guilty plea plus truthful admission of involvement in the offense and related conduct constitutes significant evidence of acceptance of responsibility. Moreover, even if there were such a rebuttable presumption, it would not help defendant. Despite ample time and opportunity, defendant never truthfully admitted the facts underlying the offense of conviction. He lied to the police and to a magistrate judge regarding his lack of prior association with co‑defendant, and gave a false home address which he never recanted. U.S. v. Hardy, 99 F.3d 1242 (1st Cir. 1996).
1st Circuit denies acceptance credit where defendant could have entered conditional guilty plea. (490) Defendant, a Native American, was involved in a scheme to transport tobacco from a reservation in upstate New York into Canada without paying Canadian taxes and excise duties. He requested a reduction under § 3E1.1 for acceptance of responsibility, claiming he did not contest the facts, but only the jurisdictional basis for the charges. The district court declined to grant the reduction, ruling that if defendant had been solely concerned with jurisdictional issues, he could have entered a conditional guilty plea and preserved the issue for appeal rather than going to trial. Also, defendant contested the bribery aspect of the case, insisting that payments offered to the tribal chief of police were not bribes but rather salary for a business partner. The First Circuit found no abuse of discretion in denying credit for acceptance of responsibility. U.S. v. Boots, 80 F.3d 580 (1st Cir. 1996), overruling on other grounds recognized by U.S. v. Richardson, 421 F.3d 17 (1st Cir. 2005).
1st Circuit denies § 3E1.1 reduction despite defendant’s offer to plead guilty to certain counts. (490) Defendant was convicted of drug and firearms counts. The First Circuit upheld the denial of a § 3E1.1 reduction, finding defendant’s offer to plead guilty to the drug counts under certain conditions did not warrant reversal. Defendant failed to demonstrate a recognition and affirmative acceptance of personal responsibility for his criminal conduct. U.S. v. Luciano-Mosquera, 63 F.3d 1142 (1st Cir. 1995).
1st Circuit upholds denial of reduction for arguing at trial that firearms were unrelated to drugs. (490) Defendant pled guilty to drug trafficking and was convicted of using a firearm during and in relation to a drug trafficking crime. He contended that he demonstrated acceptance of responsibility even though he exercised his constitutional right to a trial. The Second Circuit disagreed, because defendant argued both at trial and at sentencing that the guns found by the police were unrelated to his drug trafficking. U.S. v. Crass, 50 F.3d 81 (1st Cir. 1995).
1st Circuit finds no acceptance even though defendant was willing to plead guilty to offenses of conviction. (490) Before trial, defendant offered to plead guilty to drug charges but refused to plead guilty to firearms charges. The government was unwilling to dismiss the firearms charges, so defendant went to trial. At trial, the jury convicted defendant on drug charges but acquitted him of the firearms offense. Defendant challenged the district court’s failure to award him an acceptance of responsibility reduction. The Second Circuit held that the district court could properly rely on defendant’s refusal to plead guilty to the drug charges as grounds for denying the acceptance of responsibility reduction. Defendant did not refuse to plead to the drug counts in order to preserve a legal challenge to the statute, but because the government would not dismiss the firearms count in exchange. Defendant always had the option to plead guilty to the drug charges and contest the firearms charges. U.S. v. De Leon Ruiz, 47 F.3d 452 (1st Cir. 1995).
1st Circuit finds post-arrest statement insufficient to justify acceptance reduction. (490) Shortly after defendant’s arrest, he made a statement to police officers in which he acknowledged that he had called someone to set up a cocaine transaction, and then had called an undercover agent to arrange a meeting. Despite this admission, defendant pled not guilty and went to trial. The 1st Circuit agreed that defendant’s post-arrest statement did not warrant an acceptance of responsibility reduction. Although defendant admitted he played some role in the offense, he downplayed his own role and asserted that an unnamed individual was the true source of the drugs. Moreover, defendant’s failure to plead guilty was an important factor in the district court’s decision to deny the reduction. U.S. v. Munoz, 36 F.3d 1229 (1st Cir. 1994).
1st Circuit denies acceptance of responsibility reduction to defendant who went to trial. (490) The 1st Circuit affirmed the district court’s denial of a reduction for acceptance of responsibility to a defendant who went to trial. This was not one of the “rare” instances where the defendant may assert his right to trial and also claim acceptance of responsibility. Although defendant acknowledged the presence of heroin in a locked closet, he did so only after being informed that a warrant would soon issue to search the closet. He did not inform the officers of the money secreted in his apartment. U.S. v. Pineda, 981 F.2d 569 (1st Cir. 1992).
1st Circuit finds court did not per se deny acceptance of responsibility to a defendant who entered an Alford plea. (490) Defendant entered an Alford plea, under which he pled guilty notwithstanding protestations of innocence. Defendant claimed that the district court erroneously applied a per se rule denying a reduction for acceptance of responsibility to any defendant who enters an Alford plea. The 1st Circuit rejected this argument, finding the record contained “a host of other statements” which reflected that the judge relied upon additional factors in denying the reduction. They included statements that defendant did not demonstrate that he was a “reformed character” and that defendant was attempting to minimize in his own mind his culpability. Although the judge made statements that indicated that he believed the sincerity of defendant’s remorse, the judge drew a distinction between remorse and acceptance of responsibility. U.S. v. Burns, 925 F.2d 18 (1st Cir. 1991).
1st Circuit holds that plea of guilty does not entitle a defendant to acceptance of responsibility adjustment. (490) The 1st Circuit held that a guilty plea does not automatically entitle a defendant to an acceptance of responsibility reduction. The district court properly denied the requested adjustment after it found that the defendant has been less than candid with the DEA officer regarding his participation in the cocaine dealing. U.S. v. Blanco, 888 F.2d 907 (1st Cir. 1989).
2nd Circuit denies acceptance credit where defendant claimed lack of intent to defraud. (490) Defendant, a broker, and several officers of Smart Online, a public company, were convicted of conspiracy to commit securities fraud, wire fraud, and commercial bribery. Defendant argued that he deserved a reduction for acceptance of responsibility because he went to trial to contest only legal conclusions and not any underlying facts. The Second Circuit disagreed. Defendant contested his guilt by arguing to the jury in summation that he lacked any intent to defraud his customers, and recommended Smart Online to them in good faith. The district court had a reasonable basis for rejecting defendant’s request for an acceptance of responsibility reduction. U.S. v. Nouri, 711 F.3d 129 (2d Cir. 2013).
2nd Circuit denies acceptance credit where defendant who went to trial and minimized conduct. (490) Defendant was convicted of attempted production of child pornography, based on his attempt to get a 17-year-old girl to take pornographic pictures of herself and text them to him. The Second Circuit upheld the denial of an acceptance of responsibility reduction. Neither before nor after trial did defendant ever clearly accept responsibility for attempting to produce and possess child pornography. Rather, he repeatedly sought to minimize his culpability for these crimes by suggesting that his sexual text messaging and photo exchanges only mimicked practices already prevalent among teenagers. Further, he stated that his own conduct had been “blown up” out of proportion in being made the subject of a criminal prosecution. U.S. v. Broxmeyer, 699 F.3d 265 (2d Cir. 2012).
2nd Circuit says court did not deny acceptance responsibility based on defendant’s use of entrapment defense. (490) Defendant argued that the district court improperly denied him an acceptance of responsibility reduction because he raised an entrapment defense at trial. The Second Circuit disagreed. The district court based its denial of the reduction on factual grounds rather than on the allegedly erroneous view of entrapment as a denial of criminal intent. It was clear that the court relied on the particular facts of defendant’s case to deny the adjustment. Defendant put the government to its burden of proof at trial, and thus, the acceptance adjustment “will be based primarily upon pre-trial statements and conduct.” Defendant had “ample time” pretrial to accept responsibility, yet failed to make any effort to do so. He even refused to speak about his criminal conduct with the probation department during his presentence interview, leading the probation department to exclude an acceptance adjustment from its report. His only effort came a week before sentencing, when he suggested that his refusal to contest the material facts of his conviction sufficed as acceptance of responsibility. The court also noted the weakness of defendant’s entrapment defense and observed that the evidence against him could not have been stronger. The court’s conclusion that this was not one of those unusual cases in which a defendant who went to trial accepted responsibility was well within its discretion. U.S. v. Taylor, 475 F.3d 63 (2d Cir. 2007).
2nd Circuit upholds denial of acceptance reduction based on defendant’s attempt to withdraw guilty plea. (490) Defendant’s case was remanded for resentencing because after sentencing, a state court dismissed one of the convictions included in his criminal history. Defendant then unsuccessfully moved to withdraw his guilty plea. On remand, the district court declined to give defendant credit for acceptance of responsibility, even though he had received the credit at his original sentencing. After carefully analyzing the non-exhaustive list of eight factors relevant to the acceptance determination, see note 1 to § 3E1.1, the district court held that defendant’s motion to withdraw his guilty plea negated the only factor in his favor – “truthfully admitting the conduct comprising the offense(s) of conviction.” The Second Circuit affirmed the denial of the reduction. A defendant’s attempt to withdraw his guilty plea is a valid basis to deny acceptance credit where defendant’s reason for withdrawing the plea relates to his claim of innocence. The district court found that defendant’s chief motive for making the motion was his belief that racial profiling caused his arrest. Defense counsel conceded that there was no connection between defendant’s arrest and racial profiling, and he advised defendant not to *make the motion. Defendant’s “outlandish racial profiling claim” was “powerful evidence that [defendant had] not accepted his own personal responsibility for his fraudulent conversion of VA funds.” U.S. v. Cox, 299 F.3d 143 (2d Cir. 2002).
2nd Circuit says defendant who contested government’s case at trial not entitled to acceptance reduction. (490) Defendant robbed a bank. He was acquitted in state court due to his voluntary intoxication at the time of the robbery. However, in federal court, defendant’s intoxication defense was irrelevant, and he was convicted. He argued that he deserved an acceptance of responsibility reduction because he went to trial only to challenge the applicability of the federal statute to his conduct. The Second Circuit upheld the denial of the reduction, since the district court based its decision on its factual conclusion that defendant was not “totally candid” about the circumstances of the crime and his responsibility for his actions. The judge noted that defendant engaged in a series of acts during the robbery, such as wearing a disguise and attempting to evade police, which indicated that he knew “what was going on.” Apart from defendant’s claim that he was too intoxicated to know what he was doing during the robbery, he contested the evidence that he actually committed the robbery. He highlighted inconsistencies in the teller’s descriptions of the holdup note and the hat he was wearing, elicited from a police officer that the government had failed to obtain fingerprint evidence, and accused government witnesses from being interested witnesses. U.S. v. Sewell, 252 F.3d 647 (2d Cir. 2001).
2nd Circuit rejects acceptance reduction for defendant who attempted to withdraw guilty plea. (490) After pleading guilty to fraud charges, defendant objected to several of the PSR’s findings, claiming that he was not guilty of an intentional fraud, and asserted that a number of documents that had been lost by the bankruptcy receiver undermined the government’s allegations. He then moved to withdraw his plea, stating that newly discovered documents undermined the government’s “loss” figure and substantiated his belief that he was not guilty of “criminal fraud.” The district court denied the motion, finding that the purported recent discovery of mortgage documents was at best relevant to the amount of restitution, and that none addressed the issue of guilt. The Second Circuit affirmed the denial of an acceptance of responsibility reduction based on defendant’s attempt to withdraw his plea. Although an attempt to withdraw a plea does not automatically disqualify a defendant from seeking an adjustment, see U.S. v. Negron, 967 F.2d 68 (2d Cir. 1992), the reason for withdrawing the plea must be unrelated to a claim of innocence. Defendant very clearly characterized his “newly acquired discovery materials” as significant because they proved his innocence. U.S. v. Hirsch, 239 F.3d 221 (2d Cir. 2001).
2nd Circuit denies reduction where defendant denied criminal intent and attempted to withdraw plea. (490) 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 acceptance credit where alien raised factual challenge to guilt. (490) Defendant was convicted of illegally reentering the U.S. after having been deported. At trial, he argued that his 1990 deportation was illegal. Nevertheless, he argued that he had accepted responsibility, claiming he only went to trial to raise a collateral legal issue, i.e. the validity of the underlying deportation, and not an issue of “factual guilt.” The Second Circuit upheld the denial of the § 3E1.1 reduction, although it agreed that the validity of the underlying deportation was a collateral issue. The statute, 8 U.S.C. § 1326, does not require that the alien have been “properly” or “lawfully” deported. Thus, if defendant went to trial solely to make a collateral attack on the legality of the underlying deportation, he might be entitled to the reduction. However, defendant’s attorney also sought to raise a defense that defendant lacked the specific intent to reenter the U.S. illegally. Also, during the course of the trial, defense counsel challenged a government witness testifying to the circumstances of defendant’s departure from the U.S., trying to raise doubt as to whether defendant was the person the INS agent escorted to the departing aircraft. This was an attempt to cast doubt upon the fact, rather than the validity, of defendant’s deportation. U.S. v. Paredes-Batista, 140 F.3d 367 (2d Cir. 1998).
2nd Circuit denies acceptance reduction where defense was that conduct was not a crime. (490) Defendant was a member of a “minority labor coalition” that extorted money, jobs, and subcontracts from construction contractors. He argued that he accepted responsibility because (1) he severed all ties with the coalition seven months before he was arrested, and (2) he did not dispute the factual basis for his conviction because his defense was that his actions fell under the labor exception to the Hobbs Act. The Second Circuit held that defendant did not show that his was one of the “rare” exceptions to the rule that defendants who put the government to its burden of proof have not accepted responsibility. His defense was that his conduct was not a crime, but a legitimate attempt to further minority hiring in the construction industry. This cannot be characterized as a pre‑conviction acceptance of responsibility when the jury rejects that defense and the defendant is convicted. U.S. v. Taylor, 92 F.3d 1313 (2d Cir. 1996).
2nd Circuit says acceptance of responsibility reduction does not apply to defendants who go to trial to deny factual guilt. (490) The 2nd Circuit held that a defendant who goes to trial to deny his factual guilt is not entitled to a reduction for acceptance of responsibility. Cases to the contrary cited by defendant were premised upon earlier and more lenient guidelines commentary. Application note 2 to §3E1.1, effective November 1990, states that the reduction is not applicable to defendants who put the government to its burden of proof at trial by denying essential factual elements of guilt. A “rare” exception exists where a defendant goes to trial to assert and preserve issues unrelated to factual guilt. U.S. v. Castano, 999 F.2d 615 (2nd Cir. 1993).
2nd Circuit affirms acceptance of responsibility reduction for defendant who did not plead guilty. (490) Although defendant chose to go to trial rather than plead guilty, the 2nd Circuit affirmed the district court’s reduction for acceptance of responsibility. Defendant cooperated with authorities upon his arrest by giving an immediate statement of what he maintained to be his involvement in the drug activity. The district court found sufficient acceptance of responsibility from this fact and the fact that defendant had confessed his involvement to his family and friends. Although some sentencing judges might require a greater showing of contrition, regret, or repentance, the district court was within its discretion to make the reduction. U.S. v. Moore, 968 F.2d 216 (2nd Cir. 1992).
2nd Circuit says that motion to withdraw guilty plea may not be grounds for denial of acceptance of responsibility. (490) The district court denied defendant a reduction for acceptance of responsibility because he had (unsuccessfully) moved to withdraw his guilty plea. Since the 2nd Circuit was remanding for resentencing on unrelated grounds, it expressed no view as to defendant’s entitlement to such a reduction, except to note that the mere fact that a defendant has moved to withdraw a prior guilty plea does not necessarily warrant a denial of the reduction. Rather, the court must evaluate the reason for the attempt to withdraw the plea and assess the acceptance of responsibility question in that light. Where the quantity of narcotics is not an element of the offense, a defendant who admits he is a member of a narcotics conspiracy but seeks only an adjudication of the quantity of narcotics with which he should be personally charged for sentencing purposes should not on that account alone be denied credit for acceptance of responsibility. U.S. v. Negron, 967 F.2d 68 (2nd Cir. 1992).
3rd Circuit says nolo contendere plea did not automatically preclude acceptance reduction. (490) While extremely intoxicated, defendant walked around a bar brandishing a gun. His actions were recorded by the bar’s video cameras. He pled nolo contendere to being a felon in possession of a firearm. He challenged the court’s denial of an acceptance of responsibility reduction, arguing that he had to plead nolo contendere rather than guilty because he was so “high” that he simply could not remember the night in question. As a matter of first impression, the Third Circuit held that defendant’s nolo contendere plea did not preclude him from receiving an acceptance of responsibility reduction. However, the district court did not clearly err in ruling that defendant was not sufficiently remorseful to receive the § 3E1.1 reduction. Here, the district court was able to observe defendant’s demeanor as he viewed the surveillance video from the bar. Even though defendant did not remember his actions in the bar, he saw what he did. The court concluded that defendant’s demeanor when confronted with the video suggested an absence of remorse. Even if his conduct did not endanger anyone in the bar, he clearly placed the people in the bar in fear of imminent harm. U.S. v. Harris, __ F.3d __ (3d Cir. May 9, 2014) No. 13-1442.
3rd Circuit denies acceptance reduction where defendant had no colorable legal defense to charged offense. (490) Defendant claimed that she was entitled to an acceptance of responsibility reduction. She pointed to her pretrial confession, which the government repeatedly referred to in its arguments to the jury, and claimed that the government’s factual case was essentially established by virtue of the confession. She further argued that proceeding to trial was intended not to establish her factual innocence, but to determine whether her conduct fell within the parameters of the bank fraud statute. The Third Circuit found affirmed the denial of the reduction. While there may have been a good faith challenge to the applicability of the bank fraud statute to defendant’s conduct, there could have been no serious doubt as to the applicability of the travel fraud statute. The government charged that defendant had engaged in a scheme to defraud an elderly woman, and in furtherance of the scheme, had taken the woman across state lines. These allegations were indisputably covered by the travel fraud statute. Thus, while there was no colorable legal defense to the travel fraud charge, defendant nonetheless forced the government to prove its case at trial. U.S. v. Thomas, 315 F.3d 190 (3d Cir. 2002).
3rd Circuit remand where court did not appear to consider that defendant went to trial on most counts. (490) A jury convicted defendant of mail fraud, and he pled guilty to tax evasion charges. At sentencing, defendant expressed remorse to the judge, and the judge granted him a reduction for acceptance of responsibility. Note 2 to § 3E1.1 says that the acceptance of responsibility adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. The Third Circuit remanded for further consideration of the acceptance of responsibility issue. If this were simply a matter of determining a defendant’s credibility, the appellate court would defer to the district court’s finding. However, the lower court did not appear to consider note 2. This case was somewhat unusual because defendant pled guilty to some charges while going to trial on others. In such a situation, the trial judge must assess “the totality of the situation” to determine whether defendant accepted responsibility. This assessment must include the fact that defendant originally pled not guilty to all the counts and put the government to its proof on a majority of the charges. U.S. v. Cohen, 171 F.3d 796 (3d Cir. 1999).
3rd Circuit denies acceptance reduction despite offer to plead guilty and admission of underlying facts. (490) Defendant was charged with being a felon in possession of a firearm. He fled, was re-arrested, and was charged with failure to appear for trial. He offered to plead guilty to the bail jumping count. The court told defendant that it would accept his plea to that count alone but that it would allow the government to offer proof of the bail jumping as evidence of “consciousness of guilt” on the gun charges. Defendant then decided not to plead guilty. At trial, defendant did not actively dispute the bail jumping charge. The jury convicted him on the bail jumping charge but could not reach a verdict on the gun charges. The government eventually dismissed the gun charges. The Third Circuit upheld the denial of an acceptance of responsibility reduction because defendant did not show that he affirmatively accepted responsibility for his conduct. The only evidence of remorse was defendant’s offer to plead guilty and his admission at trial of the essential facts underlying the bail jumping charge. Nothing in his testimony amounted to an affirmative statement of remorse or contrition. The district court concluded that defendant’s offer to plead guilty was “tactical maneuvering.” U.S. v. Muhammad, 146 F.3d 161 (3d Cir. 1998).
3rd Circuit denies § 3E1.1 reduction to defendant who contested factual guilt at trial. (490) Defendant illegally reentered the U.S. following his deportation for drug crimes. Defendant claimed he accepted responsibility, characterizing his pretrial interview with an INS agent as a confession, and contended his objections during trial were purely legal ones. The Third Circuit upheld the denial of the reduction, agreeing that defendant contested his factual guilt at trial beyond a mere legal challenge. Defendant put the government to the test in its offering of evidence. He contested the testimony of the police officers who found him in the U.S. following deportation, questioned the relevance of the government’s evidence on INS deportation procedures and the credibility of evidence in the INS file, cross-examined government witnesses about defendant’s deportation, attacked the quality and accuracy of the government’s fingerprint evidence, and sought to include INS exhibits and documentary evidence that went to an essential element of the offense. U.S. v. Cartagena-Carrasquillo, 70 F.3d 706 (1st Cir. 1995).
3rd Circuit remands acceptance of responsibility ruling to consider why defendants went to trial. (490) In denying defendants a reduction for acceptance of responsibility, the district court considered the fact that defendants refused to plead guilty to the entire indictment. The 3rd Circuit remanded for reconsideration of this issue, since the court failed to consider the apparently valid reasons why both defendants refused to plead guilty to the entire indictment. One defendant refused in order to contest his guilt on a gun possession charge and was vindicated by his acquittal on that charge. The second defendant went to trial to determine the amount of drugs involved in the conspiracy, an issue which the appellate court decided in his favor. A defendant’s decision to go to trial does not prohibit his receipt of a two-level reduction for acceptance of responsibility. U.S. v. Rodriguez, 975 F.2d 999 (3rd Cir. 1992).
3rd Circuit denies acceptance of responsibility reduction although defendant went to trial to preserve issue for appeal. (490) The 3rd Circuit affirmed the district court’s denial of a reduction for acceptance of responsibility even though defendant claimed he went to trial only to preserve the issue of the applicability of the “exculpatory no” doctrine to the facts of his case for appeal, not to context his factual guilt. The parties gave conflicting accounts of the course of the pre-trial negotiations, and the probation officer found that defendant’s written statement acknowledging his offense “fell short as a direct acknowledgement of essential simple misconduct.” U.S. v. Barr, 963 F.2d 641 (3rd Cir. 1992).
3rd Circuit finds no acceptance of responsibility despite contrary government recommendation. (490) Defendant’s plea agreement stipulated that defendant accepted responsibility. During his plea hearing, defendant admitted his guilt and affirmed to the court that he was responsible for each element of the offense. However, the probation officer alleged in the presentence report that during an uncounseled interview, defendant denied having knowingly participated in his offense. Despite the government’s recommendation at the sentencing hearing to the contrary, the sentencing judge refused to grant defendant a reduction for acceptance of responsibility. The 3rd Circuit upheld the judge’s actions. The judge was not bound to grant a reduction simply because of defendant’s guilty plea or because of the stipulation contained in the plea agreement. The conclusion was based upon uncontested material contained in the presentence report. Although defendant had been granted a downward departure for substantial assistance, there was “nothing inherently inconsistent” in finding that defendant had substantially assisted the government but had not accepted responsibility. U.S. v. Singh, 923 F.2d 1039 (3rd Cir. 1991).
3rd Circuit holds pleading guilty does not raise presumption of acceptance of responsibility. (490) To qualify for a two point reduction, the defendant must sincerely manifest his acceptance of responsibility. Since the sentencing judge is in the best position to determine the sincerity of the defendant’s contrition, the findings will not be disturbed unless they are clearly erroneous. Merely pleading guilty is not enough to raise a presumption of acceptance of responsibility. The defendant must point to specific facts, which he failed to in this case. U.S. v. Ortiz, 878 F.2d 125 (3rd Cir. 1989).
4th Circuit denies acceptance credit where defendant disputed commerce nexus. (490) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The sentencing court denied an acceptance of responsibility reduction because defendant went to trial on the § 922(g)(1) charge and disputed whether his possession of the .38 revolver was in or affecting commerce. On appeal he argued that he had not been allowed to present evidence or argument to support his interpretation of the interstate commerce nexus element, and therefore never actually contested his factual guilt. The Fourth Circuit affirmed the denial of the acceptance reduction. The interstate commerce nexus element was presented to the jury as a point in controversy that it was required to decide. Because defendant attacked the legal sufficiency of an essential element of his offense, he contested his guilt in fact. Thus, the district court appropriately denied him an offense level decrease for acceptance of responsibility. U.S. v. Smoot, 690 F.3d 215 (4th Cir. 2012).
4th Circuit says guilty plea was insufficient to warrant acceptance reduction. (490) Defendant pled guilty to possessing an unregistered firearm. He argued that the court erred in denying him a reduction for acceptance of responsibility. The district court found that although defendant pled guilty, his statements to the probation officer that he “never assembled or detonated any explosive devices” were “totally incredible,” given the evidence presented at sentencing. His friend testified that he and defendant regularly detonated such devices and an expert identified defendant’s fingerprints on the debris of a detonated device. The Fourth Circuit ruled that defendant failed to show that the district court clearly erred in denying him the acceptance reduction. U.S. v. McKenzie-Gude, 671 F.3d 452 (4th Cir. 2011).
4th Circuit says guilty plea did not entitle defendant who minimized conduct to acceptance reduction. (490) 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 rejects challenge to life sentence. (490) Defendant was convicted of murder in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1) and use of a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c). Under guideline section 2A1.1, his offense level for the first-degree murder was 43, requiring a sentence of life imprisonment. Defendant argued that the Sentencing Commission’s decision to impose a presumptive life sentence for violations of § 1959(a)(1) was beyond its statutory authority. He also contended that his life sentence was invalid because it infringed on his right to a jury trial. If he had pled guilty, he would have been eligible for an acceptance of responsibility reduction and thus could have reduced his guideline range to 360 months to life. The Fourth Circuit upheld the life sentence. Defendant’s arguments rested on two inaccurate assumptions. First, defendant assumed that judges have no discretion to sentence a § 1959(a)(1) defendant to less than life imprisonment. However, judges may adjust a sentence downward for a number of reasons, including substantial assistance to the government and acceptance of responsibility. Defendant also incorrectly assumed that a defendant who insists on going to trial cannot receive an acceptance of responsibility reduction. However, note 2 to § 3E1.1 makes clear that conviction by trial does not automatically preclude a defendant from receiving a § 3E1.1 reduction. U.S. v. Gray, 137 F.3d 765 (4th Cir. 1998).
4th Circuit says choosing bench trial rather than jury trial not grounds for § 3E1.1 reduction. (490) Defendant was convicted of perjury in connection with his grand jury testimony. The district court granted him an acceptance of responsibility reduction because he saved the court and the government expenses by choosing a bench trial rather than a jury trial, and because he admitted lying at the trial. The Fourth Circuit held that the court erred in granting an acceptance of responsibility reduction on these grounds. The guidelines make no distinction between a bench and a jury trial. The relevant distinction is between a defendant who puts the government to its proof at trial, and a defendant who does not request a trial. Defendant’s admission of his lies during the trial did not constitute proof that he recognized and accepted responsibility for his actions. Defendant went to trial to attempt to prove that his lies to the grand jury were not material. Materiality is an essential element of a perjury offense. U.S. v. Dickerson, 114 F.3d 464 (4th Cir. 1997).
4th Circuit denies reduction despite plea where defendant showed no remorse. (490) Defendant carjacked his former girlfriend and her boyfriend at gunpoint. He later released the boyfriend, and sexually assaulted the girlfriend. Defendant argued that he accepted full responsibility for his actions when he pled guilty to the carjacking and firearms charges. The Fourth Circuit held that the guilty plea was insufficient since defendant’s comments indicated that he did not fully accept responsibility for his actions. Defendant characterized his actions as an attempt to reconcile with his ex‑girlfriend and failed to admit or express remorse regarding many of his actions. He characterized the carjacking as a request for a ride. However, defendant failed to mention that the request was accompanied by brandishing a firearm. U.S. v. Nale, 101 F.3d 1000 (4th Cir. 1996).
4th Circuit denies reduction where defendant denied intent to defraud at trial. (490) Defendant argued that he accepted responsibility because the district court did not find that he obstructed justice by perjuring himself on the witness stand. The Fourth Circuit held that defendant is not entitled to an acceptance of responsibility reduction merely because he did not perjure himself at trial. Although a defendant may exercise his right to trial and still receive the reduction, such situations are rare, and the determination must be based on pre-trial statements and admissions. During sentencing, defendant continued to deny that he had the intent to defraud. Thus, he did not completely accept responsibility for all of his criminal conduct. U.S. v. Castner, 50 F.3d 1267 (4th Cir. 1995).
4th Circuit affirms acceptance of responsibility reduction even though defendant admitted only partial guilt. (490) Defendant was convicted by a jury of various bribery related counts. The government appealed the district court’s decision to grant defendant a reduction for acceptance of responsibility, contending that defendant only admitted giving illegal gratuities. The 4th Circuit affirmed the reduction. Defendant had presented a proposed plea agreement in which he agreed to plead guilty to bribery on condition that he preserved the right to appeal certain matters. The government rejected this condition, so defendant went to trial. At trial, he did not testify or introduce any evidence. The 5th Circuit gave credit to defendant’s pretrial offer to plead guilty to the greater offense of bribery as evidence of his acceptance of responsibility. U.S. v. Muldoon, 931 F.2d 282 (4th Cir. 1991).
5th Circuit finds any breach of plea agreement harmless because acceptance reduction was unlikely. (490) Defendant’s plea agreement provided that the government would recommend an acceptance of responsibility reduction if he “clearly demonstrates acceptance of responsibility.” The government did not recommend the two-level decrease; instead, it sought an obstruction of justice increase based on a letter defendant sent to the district court denying various facets of the government’s case. He later admitted that these statements were false. In addition, while defendant was detained, he phoned his sister, a co-defendant, and instructed her “not to [waver] from” a storyline defendant had concocted. Defendant argued that both instances occurred before he pled guilty, and the government was aware of these incidents when it agreed to recommend the acceptance reduction. The Fifth Circuit held that even if the government breached the agreement, defendant’s substantial rights were not affected, because it was highly unlikely the district court would have granted defendant the acceptance reduction. Based on the letter and his instructions to his sister, the court found defendant’s credibility so lacking that it was “suspicious of any word out of his mouth.” U.S. v. Hinojosa, 749 F.3d 407 (5th Cir. 2014).
5th Circuit denies acceptance reduction to defendant who put government to burden of proof at trial. (490) Defendant argued that the district court erred in denying his request for an acceptance of responsibility reduction, claiming he only went to trial to preserve his ability to appeal questions of law, the defense presented no evidence at trial, and he all but conceded guilt in his closing argument. However, defendant placed these same facts before the district court and the court found them unconvincing. Defendant had rejected an unconditional guilty plea offered by the government, put the government to its burden of proof in a jury trial, sought a judgment of acquittal under Rule 29, and in closing argument urged the jury to find that the government had not proven its case beyond a reasonable doubt. The Fifth Circuit ruled that the district court did not abuse its discretion in denying defendant’s request for an acceptance reduction. U.S. v. Vickers, 540 F.3d 356 (7th Cir. 2008).
5th Circuit holds that defendant who raised insanity defense at trial was not eligible for acceptance reduction. (490) The district court denied defendant’s request for an acceptance of responsibility reduction, ruling that he was not eligible because he raised an insanity defense at trial. The Fifth Circuit agreed that generally, an insanity defense will preclude an acceptance of responsibility reduction. However, the court left open the possibility that in a “rare situation” a defendant may assert such a limited insanity defense that he is eligible for the reduction. This was not one of those instances. Defendant’s expert testified at trial that defendant could appreciate the wrongfulness of his actions, just not the seriousness of their consequences. Moreover, defendant’s position on appeal undermined his claimed acceptance of responsibility. For the first time on appeal, he challenged the sufficiency of the evidence, claiming the government failed to prove one of the factual elements of its case (causation). U.S. v. Sam, 467 F.3d 857 (5th Cir. 2006).
5th Circuit says this is not rare situation where defendant who goes to trial earns acceptance reduction. (490) Defendant argued that he was entitled to an acceptance of responsibility reduction because he was willing to plead guilty to Count 1 prior to trial, but wanted to challenge any sentencing enhancement under 21 U.S.C. § 841(b)(1) and USSG § 2D1.1 and to challenge the rulings on his pretrial motions to dismiss on double jeopardy grounds and to suppress. The Fifth Circuit found no error. This was not one of the rare situations in which a defendant who put the government to its proof at trial is nevertheless entitled to a reduction for acceptance of responsibility. At the very least, defendant’s suppression issue, which related to his factual guilt, his failure to debrief the probation officer, and his challenge to the substantive counts against him, not withstanding his offer to plead guilty to the conspiracy count, distinguished this case from those in which such a reduction would be warranted. U.S. v. Solis, 299 F.3d 420 (5th Cir. 2002).
5th Circuit says substitution of collateral did not entitle defendant to acceptance reduction. (490) Defendant entered into four separate loan agreements in which he assigned his company’s interest in various timber deeds to the bank as collateral for the loans. Several months later, defendant renewed these loans, falsely representing to the bank that he would repay the loan from proceeds of the sale of the timber from the collateral property. In fact, he had already harvested and sold the timber in question. When the fraud was discovered, defendant executed a substitution of collateral agreement which permitted the lender to auction other collateral substituted by defendant. Defendant contended that he was entitled to an acceptance of responsibility reduction because of the substitution of collateral agreement. The Fifth Circuit upheld the district court’s conclusion that defendant did not accept responsibility. Although defendant did agree to substitute collateral, he waited until after the bank discovered his disposal of the original collateral. Moreover, he denied his guilt and forced the government to prove its case at trial. U.S. v. Anderson, 174 F.3d 515 (5th Cir. 1999).
5th Circuit rejects reduction where defendant did not admit most serious conduct. (490) Defendant was indicted on six counts relating to child pornography and the sexual exploitation of a minor. At trial, he admitted sending child pornography via the computer, as alleged in counts one, two and three. He also admitted possessing child pornography, as alleged in count six. However, he maintained his innocence with regard to counts four and five, which charged him with attempted sexual exploitation of a minor and receiving child pornography. A jury convicted him of all six counts. He contended that he was entitled to an acceptance of responsibility reduction since he made it clear that he intended to plead guilty to counts one, two, three and six, and that his communication and testimony provided a benefit to the trial court. The Fifth Circuit affirmed the denial of the reduction since defendant persistently attempted to minimize his conduct and his intent. He forced a trial on the most serious counts, which itself could preclude an acceptance of responsibility reduction. U.S. v. Crow, 164 F.3d 229 (5th Cir. 1999).
5th Circuit finds incorrect advice about maximum sentence did not keep defendant from pleading guilty. (490) At arraignment, the magistrate incorrectly told defendant that he faced only a maximum of five years’ imprisonment if convicted of violating 21 U.S.C. § 841(a)(1). Defendant claimed that “probably” would have pled guilty if he had known that he faced a potentially longer sentence. The Fifth Circuit was unpersuaded. Defendant received a sentence of less than five years after a trial. If he had pled guilty, he would have received an identical sentence under the guidelines, except for a possible reduction for acceptance of responsibility. Thus, his complaint was that the magistrate’s explanation of his maximum sentence cost him the opportunity to plead guilty and accept responsibility. However, a defendant is less likely to plead guilty when he faces a longer sentence. Moreover, he did not plead guilty once he discovered the error, and he failed to accept responsibility even after his conviction. U.S. v. Hare, 150 F.3d 419 (5th Cir. 1998).
5th Circuit denies acceptance credit to defendant who raised entrapment defense. (490) Defendant, a church pastor, was caught in a government sting operation after agreeing to launder what he believed to be drug money to help his church through some financial difficulties. He argued that he deserved an acceptance of responsibility reduction because he went to trial only to preserve the “legal issue” of entrapment. He claimed that he fully admitted his “factual guilt” in his pretrial confession and trial testimony. The Fifth Circuit held that defendant’s entrapment defense disqualified him from receiving an acceptance of responsibility reduction. Defendant’s assertion of entrapment was a denial of subjective predisposition and of the requirement element of mens rea. An entrapment defense is a challenge to criminal intent and thus to culpability. U.S. v. Brace, 145 F.3d 247 (5th Cir. 1998).
5th Circuit denies reduction where defendant went to trial and showed no acceptance of responsibility. (490) Defendant argued that the district court improperly denied him a § 3E1.1 reduction because he exercised his right to trial. The Fifth Circuit upheld the denial of the reduction since there was no evidence that defendant accepted responsibility. Whether a defendant has accepted responsibility for a crime is a factual question and the standard of review is even more deferential than clear error. U.S. v. Payne, 99 F.3d 1273 (5th Cir. 1996).
5th Circuit holds that Branch Davidian did not accept responsibility. (490) Defendant, a Branch Davidian, was convicted of aiding and abetting the voluntary manslaughter of federal agents in connection with the ATF’s raid on the Davidians’ compound. He contended he was entitled to a § 3E1.1 reduction because he provided a statement to a Texas Ranger immediately after his arrest. The Fifth Circuit found this claim ludicrous. Defendant pled not guilty to all charges against him, contested his factual guilt, and claimed he acted in self‑defense. He addressed the district court proclaiming “we still stand on our innocence.” He expressed no regret or remorse for his personal involvement in the deaths of the ATF agents. U.S. v. Branch, 91 F.3d 699 (5th Cir. 1996).
5th Circuit says defendant who raised entrapment defense did not accept responsibility. (490) Defendant was convicted by a jury of being a felon in possession of a firearm. At trial, he raised a defense of entrapment by estoppel and duress. He contended he was entitled to an acceptance of responsibility reduction because he did not dispute his factual guilt and admitted all the elements of the offense. The Fifth Circuit denied the reduction. By its nature, the entrapment defense requires an admission of the actual criminal activity. However, defendant provided a story very different from the one the government offered. The jury rejected defendant’s version of the facts. U.S. v. Spires, 79 F.3d 464 (5th Cir. 1996).
5th Circuit says defendant who challenged statute’s applicability might be entitled to 3E1.1 reduction. (490) Defendant took a flight out of Arkansas. At the airport, he checked through to California a piece of luggage which contained a handgun. Prior to checking the luggage, he advised the airline and completed the paperwork necessary for transporting the gun. DEA agents stopped defendant when he disembarked in Texas. He was convicted in Texas district court of being a felon in possession of a firearm. At trial, defendant challenged venue, claiming the government did not show that he possessed the gun in Texas. The district court denied an acceptance of responsibility reduction, but on appeal, the Fifth Circuit held that defendant was eligible for a § 3E1.1 reduction. Defendant only went to trial to argue that the facts did not legally constitute possession in Texas. Defendant’s claim that the airline, rather than he, possessed the gun while it was checked through to his final destination was a mistaken conclusion of law, not a denial of fact. U.S. v. Fells, 78 F.3d 168 (5th Cir. 1996).
5th Circuit says counsel’s admission of guilt did not warrant acceptance of responsibility reduction. (490) Defendant argued that his trial counsel’s admission of guilt during closing arguments entitled him to an acceptance of responsibility reduction. The Fifth Circuit disagreed since defendant put the government to its burden of proof at trial. Moreover, the record did not contain any statement of remorse or contrition by defendant. U.S. v. Helmstetter, 56 F.3d 21 (5th Cir. 1995).
5th Circuit denies reduction to defendant who did not plead guilty until closing statements at trial. (490) The district court denied defendant an acceptance of responsibility reduction because he put the government to its burden of proof and did not plead guilty until the closing statements at trial. The 5th Circuit affirmed. U.S. v. Lister, 53 F.3d 66 (5th Cir. 1995).
5th Circuit denies reduction to defendant who forced government to trial. (490) Defendant contended that the district court erred by failing to consider her post-offense rehabilitative efforts for an acceptance of responsibility reduction. The Fifth Circuit held that defendant was not eligible for the reduction because she denied her guilt and forced the government to go to trial. U.S. v. Brown, 49 F.3d 135 (5th Cir. 1995).
5th Circuit denies acceptance of responsibility for defendant who tried to suppress heroin. (490) Defendant argued that he accepted responsibility, because he only went to trial to raise a Fourth Amendment challenge to the seizure of heroin from his boot. The district court did not permit him to enter a conditional guilty plea, which would have preserved his right to appeal his Fourth Amendment claim). The Fifth Circuit upheld the denial of the reduction. Given a court’s absolute discretion to reject a conditional plea, the appellate court refused “to impose any consequence on [the] earlier refusal to allow a conditional plea.” The evidence defendant sought to suppress was both necessary and sufficient to support his conviction. As a result, there was nothing more of consequence for defendant to admit. The district court concluded that a challenge to the admissibility of the evidence was indistinguishable from a challenge to factual guilt. U.S. v. Maldonado, 42 F.3d 906 (5th Cir. 1995).
5th Circuit considers Alford plea in deciding whether defendant has accepted responsibility. (490) Defendant argued that the district court mistakenly believed that an Alford plea precludes a finding of acceptance of responsibility. The 5th Circuit held that the district court properly considered the Alford plea in finding that defendant had not accepted responsibility. The court’s finding was based on defendant’s persistent and unpersuasive explanation that he possessed cocaine not for distribution but for his personal use, but defendant’s Alford plea was also a relevant factor in deciding whether he had accepted responsibility. A defendant’s refusal to acknowledge essential elements of an offense is incongruous with acceptance of responsibility. U.S. v. Harlan, 35 F.3d 176 (5th Cir. 1994).
5th Circuit denies reduction to defendant who put government to burden of proof at trial. (490) Defendant argued that he accepted responsibility by truthfully telling the FBI about his conduct, voluntarily surrendering to authorities after being charged, and voluntarily resigning as president of a bank. The 5th Circuit disagreed, since defendant put the government to its burden of proof at trial and did not admit the essential factual elements of guilt. Defendant never admitted he willfully did anything wrong. U.S. v. McCord, 33 F.3d 1434 (5th Cir. 1994).
5th Circuit says government’s refusal to plea bargain did not deny opportunity to accept responsibility. (490) Defendant argued that the government’s refusal to offer him a plea bargain denied him the opportunity to accept responsibility for his actions. The 5th Circuit held that the government’s refusal to offer a plea bargain did not warrant reversal of defendant’s sentence. There is no constitutional right to a plea bargain. Defendant’s argument erroneously assumed that a guilty plea would have entitled him to an acceptance of responsibility reduction. However, during his presentence interview with the probation officer, defendant continued to maintain his innocence. Therefore, defendant’s failure to plead guilty before trial was not relevant to the acceptance of responsibility issue. U.S. v. Crain, 33 F.3d 480 (5th Cir. 1994).
5th Circuit rules that advice to go to trial was not ineffective assistance. (490) In a §2255 motion, defendant argued that her attorney provided ineffective assistance when he advised her to go to trial despite the overwhelming evidence against her. If she had pled guilty, defendant contended that she would have received a reduction at sentencing for acceptance of responsibility. The 5th Circuit found that the advice to go to trial did not constitute ineffective assistance. The government did not offer defendant a deal. Thus it was reasonable for the attorney to believe that there was nothing to gain by pleading guilty. Moreover, there was no reasonable probability that defendant would have received the reduction if she had pled guilty. Here, defendant’s pre-trial and pre-arrest conduct demonstrated the opposite of acceptance of responsibility, and led to an enhancement for obstruction of justice. U.S. v. Faubion, 19 F.3d 226 (5th Cir. 1994).
5th Circuit denies reduction despite voluntary appearance at police station where defendant went to trial. (490) Defendant claimed that he was entitled to a reduction for acceptance of responsibility because he voluntarily appeared at the police station, returned uncashed money orders obtained through fraud, and confessed his participation in a conspiracy to cash altered money orders. The 5th Circuit upheld the denial of the reduction, finding this was not a rare situation where a defendant deserved the reduction despite putting the government to its burden of proof at trial. U.S. v. Brown, 7 F.3d 1155 (5th Cir. 1993).
5th Circuit holds that defendant who confessed but went to trial did not accept responsibility. (490) Defendant contended that he deserved a reduction for acceptance of responsibility because he confessed that the “dope” was his. The 5th Circuit affirmed the denial of the reduction, since, despite his confession, defendant went to trial and required the government to prove its case. Defendant contested every aspect of the trial, tried to manipulate the system throughout, showed no sign of accepting the justification for criminal laws, and did not express remorse even after conviction. U.S. v. Cartwright, 6 F.3d 294 (5th Cir. 1993).
5th Circuit denies acceptance of responsibility to escapee who remained fugitive for six months. (490) Defendant escaped from a federal halfway house and was apprehended six months later on a routine traffic stop. The 5th Circuit affirmed the district court’s denial of a reduction for acceptance of responsibility despite defendant’s guilty plea. The district court properly relied upon the fact that defendant did not voluntarily surrender herself to authorities and remained a fugitive for six months. U.S. v. Baty, 980 F.2d 977 (5th Cir. 1992).
5th Circuit denies reduction to defendant who withdrew guilty plea to contest drug quantity. (490) Defendant withdrew his guilty plea in order to contest the amount of drugs attributable to him. The district court found defendant responsible for the full contested quantity, and the 5th Circuit affirmed. Defendant conceded that he was not entitled to an acceptance of responsibility reduction unless the appellate court also found for him on the drug quantity issue. However, the 5th Circuit found that even if it had, the district court was not obliged to find that defendant accepted responsibility. Defendant’s plea of not guilty put the government to its burden of proof on the factual issues relating to his guilt. His plea agreement did not force him to go to trial to contest the amount of marijuana involved in the conspiracy. The information to which he pled did not allege an amount of marijuana, and the district court was not obligated to accept the presentence report. Defendant could have argued the issue without withdrawing his plea. U.S. v. Montes, 976 F.2d 235 (5th Cir. 1992).
5th Circuit holds amendment did not create rebuttable presumption of acceptance of responsibility for defendants who plead guilty. (490) The 5th Circuit rejected defendant’s claim that the November 1990 amendments to the commentary and application notes on guideline section 3E1.1 created a “rebuttable presumption” in favor of an acceptance of responsibility reduction for a defendant who pleads guilty and acknowledges involvement in the offense and related conduct. The amendments were intended by the Sentencing Commission to clarify the operation of section 3E1.1 rather than enact substantive changes. If the sentencing commission intended to create a rebuttable presumption it would have amended the guideline itself rather than the commentary. The amendments also did not alter the appellate court’s standard of review. There is no practical difference between granting a trial judge’s determination “great deference” and reviewing whether the trial court’s decision was “utterly lacking in foundation.” U.S. v. Brigman, 953 F.2d 906 (5th Cir. 1992).
5th Circuit finds defendant did not meet burden of proving acceptance of responsibility. (490) Defendant contended that he was entitled to a reduction for acceptance of responsibility because he pled guilty and said he was sorry for what he did and that he was guilty. The 5th Circuit upheld the district court’s determination that defendant failed to prove that he had accepted responsibility. The presentence report noted that defendant’s explanation of his offense left out significant facts and included no remorse for the conduct. U.S. v. Perez, 915 F.2d 947 (5th Cir. 1990).
5th Circuit holds that a guilty plea does not automatically entitle defendant to adjustment for acceptance of responsibility. (490) Quoting U.S.S.G. § 3E1.1(a), the 5th Circuit held that guilty plea “may provide some evidence of” but “does not automatically entitle the defendant to a sentencing adjustment” for acceptance of responsibility. The court added that in reviewing the district court’s findings, the appellate court must accept the findings of fact of the district court unless they are clearly erroneous. U.S. v. Fields, 906 F.2d 139 (5th 1990).
6th Circuit upholds government’s refusal to move for third-level acceptance reduction. (490) Defendant’s first trial on charges of escape from federal custody ended in a mistrial with the jury deadlocked. A retrial was scheduled, but defendant subsequently decided to plead guilty. He argued that because he pled guilty, he was entitled to the one-level reduction for acceptance of responsibility in § 3E1.1(b), which is permitted only on government motion. Here, the government refused to make the motion because defendant did not plead guilty until after the first trial. The Sixth Circuit found that the government reasonably declined to move for the additional one-level acceptance reduction because defendant denied responsibility until after a mistrial was declared following a full trial. U.S. v. Capozzi, 723 F.3d 720 (6th Cir. 2013).
6th Circuit denies acceptance reduction where defendant put government to burden of proof at trial. (490) Defendant was convicted of possessing automatic weapons and making false entries on weapons applications and transfer forms. He argued that he deserved an acceptance of responsibility reduction because he went to trial merely to preserve his legal argument regarding the constitutionality of the statute as applied to him. The Sixth Circuit disagreed. The question at trial was “not the documentation’s facial validity, but instead the genuineness of the representations made in the documentation and the identity of the true owner.” The government’s position was that “the applications were completed with fraudulent designs.” These factual questions were resolved by the jury after defendant “put the government to its burden of proof at trial.” Additionally, the court noted that defendant’s actions prior to and during trial, including “post-indictment amendments of tax returns” and “playing coy,” failed to demonstrate that he accepted responsibility. U.S. v. Theunick, 651 F.3d 578 (6th Cir. 2011).
6th Circuit rejects finding that defendant who went to trial also accepted responsibility. (490) Defendant argued that he went to trial to preserve issues unrelated to factual guilt, including the admissibility of a witness’s identification, and a claim that the government violated the Interstate Agreement on Detainers act. However, the record showed that defendant vigorously disputed his factual guilt at trial, arguing that a co-conspirator lied about defendant’s participation in the robbery. The Sixth Circuit agreed that the court erred in granting defendant an acceptance of responsibility reduction. Defendant did not admit guilt until after his conviction. He put the government to its proof by denying the essential factual elements of guilt, and thus § 3E1.1 was not intended to apply to him. On remand, the district court shall consider the guidelines, but no longer treat them as mandatory under U.S. v. Booker, 543 U.S. 220 (2005). U.S. v. Forrest, 402 F.3d 678 (6th Cir. 2005).
6th Circuit says defendant who denied intent to defraud was not entitled to acceptance reduction. (490) Defendant argued that he did not contest the government’s factual allegations at trial, but rather, merely contested the applicability of the bank fraud statute to the conduct in which he participated. Because defendant’s specific intent to defraud the bank was a factual matter, and defendant put the government to its burden of proof at trial by denying this essential factual element of guilt, the Sixth Circuit ruled that defendant was not entitled to an acceptance of responsibility reduction. U.S. v. Reaume, 338 F.3d 577 (6th Cir. 2003).
6th Circuit says defendant who pled guilty was not entitled to acceptance reduction where he also obstructed justice. (490) Defendant argued that he was entitled to received a reduction for acceptance of responsibility because he pled guilty. However, Note 3 to § 3E1.1 makes clear that a “defendant who enters a guilt plea is not entitled to an [acceptance] adjustment … as a matter of right.” Moreover, defendant attempted to withdraw his guilty plea twice, claiming that he did not commit the acts alleged in the charges. Defendant’s case was not an “extraordinary” one that justified both an obstruction enhancement and a reduction for acceptance of responsibility. The Sixth Circuit upheld the denial of the acceptance reduction. U.S. v. Turner, 324 F.3d 456 (6th Cir. 2003).
6th Circuit denies acceptance reduction to defendant who denied elements of offense. (490) Defendant was convicted of a variety of federal gambling counts related to his operation of an illegal gambling business. Although he admitted to gambling in violation of Ohio law, he persisted in denying that he satisfied all of the elements of 18 U.S.C. § 1955, particularly the five-person jurisdictional requirement. Because defendant put the government to its burden of proof in establishing an “illegal gambling business,” the Sixth Circuit held that the district court properly denied defendant a reduction for acceptance of responsibility. U.S. v. Mick, 263 F.3d 553 (6th Cir. 2001).
6th Circuit holds that defendant not entitled to acceptance reduction despite admitting facts. (490) Defendant admitted to failing to file income tax returns for 1992 to 1996, despite earning more than $1.5 million in income. He argued at trial that he had a good-faith belief that he had no obligation to pay income tax because the Internal Revenue Code contains no provision that explicitly requires the payment of income tax. He argued that he deserved an acceptance of responsibility reduction because, from the beginning of the case, he admitted to not filing the returns, and even agreed to plead guilty if the government identified the precise Code section that required him to file a tax return and to pay income taxes. He contended that it was the government’s refusal of his offer that forced him to go to trial. The Sixth Circuit upheld the denial of the reduction. Although a defendant who concedes the facts without admitting guilt is not categorically barred from receiving the reduction, such a defendant is not entitled to a reduction as a matter of right. Thus, although the district court may not have been barred from giving defendant a reduction, under the facts of this case, defendant was not entitled to the reduction, and the court’s failure to grant him one was not clear error. U.S. v. Middleton, 246 F.3d 825 (6th Cir. 2001).
6th Circuit denies acceptance reduction to defendant who raised entrapment by estoppel defense at trial. (490) Defendant was convicted by a jury of operating an illegal gambling business. At trial, he admitted that he had engaged in the charged conduct, but argued that the government should be estopped from prosecuting him because it had led him to believe that purchasing a federal gambling stamp each year and paying monthly taxes on his gross wagers would immunize him from prosecution. Citing U.S. v. Fleener, 900 F.2d 914 (6th Cir. 1990), defendant argued that he was entitled to an acceptance of responsibility reduction. However, Fleener held only that the district court did not err in granting an acceptance of responsibility reduction to a defendant who went to trial to raise an entrapment defense. The case does not stand for the proposition that any defendant who raises an entrapment defense is entitled to the reduction. The trial judge here expressly recognized that in rare circumstances a court may grant a defendant who proceeds to trial a reduction for acceptance of responsibility, but found that such a reduction was not warranted here. The Sixth Circuit held that this determination was not clearly erroneous. U.S. v. Beaty, 245 F.3d 617 (6th Cir. 2001).
6th Circuit holds that court properly considered prior illegal re-entries in denying acceptance reduction. (490) Defendant pled guilty to re-entering the U.S. after deportation. He argued that he accepted responsibility by pleading guilty and truthfully admitting the conduct comprising the offense of conviction. The district court denied the reduction, noting that defendant had previously been deported for committing crimes in this country. The Sixth Circuit held that the district court properly denied the reduction based on defendant’s repeat violations of the same statute violated here. The district court was suspicious that defendant would again illegally reenter the country. Lack of true remorse is a valid consideration. The district court’s disbelief in defendant’s remorse was well-founded. When the probation officer asked him what he intended to do after being deported, defendant said that he intended to come back. Additionally, when given the opportunity to address the court at sentencing, defendant did not express remorse or contrition for his actions. U.S. v. Castillo-Garcia, 205 F.3d 887 (6th Cir. 2000).
6th Circuit denies acceptance reduction where defendant denied intent to violate civil rights. (490) Defendant was present when Dunn and Porter discussed a plan to place copies of a hate flyer on the lawn of an African-American family. Defendant made copies of the flyer for Dunn and Porter, but was not present when Dunn scattered the copies on the family’s yard. He was convicted by a jury of various civil rights violations. The Sixth Circuit found defendant was not entitled to an acceptance of responsibility reduction, since he did not go to trial simply to test the constitutionality or applicability of the civil rights laws under which he was convicted. Instead, he steadfastly contested his factual guilt, claiming that he duplicated the flyers without any specific knowledge that they would be scattered on the family’s lawn and without any intent to do harm. Defendant continued to make those claims on appeal, thus denying that he possessed the requisite intent to violate the family’s civil rights. U.S. v. Mahan, 190 F.3d 416 (6th Cir. 1999).
6th Circuit denies reduction where defendant denied factual basis of charges at trial. (490) Defendant was convicted by a jury of charges relating to his operation of an illegal gambling operation. He contended that he was entitled to an acceptance of responsibility reduction because he fully acknowledged that he owned the video poker and slot machines, and that he should not be penalized for going to trial to challenge the constitutionality of Tennessee’s gambling law. Because the record refuted defendant’s claim that he accepted the factual basis of the charged offenses or that he raised only constitutional issues at trial, the Sixth Circuit affirmed the denial of the § 3E1.1 reduction. The government presented evidence that defendant operated an illegal gambling business, knew that his video poker and slot machines were used for gambling, shared in the profits, and laundered the proceeds of his illegal gambling business. Defendant, on the other hand, contended that he was a legitimate businessman. U.S. v. Hill, 167 F.3d 1055 (6th Cir. 1999).
6th Circuit denies reduction for defendant who went to trial. (490) Defendant argued that the district court incorrectly limited the acceptance of responsibility reduction for a defendant who went to trial to only those defendants who wished to preserve a legal argument. According to defendant, the reduction should also be available where, as here, a defendant admits his guilt but denies the extent of it. The Sixth Circuit found no error. The district court did not say that the only time a defendant who goes to trial can get the reduction is when he goes to trial to preserve a constitutional challenge. It simply said this was not an extraordinary case in which a defendant who did not plead guilty accepted responsibility. Defendant made no clear-cut statements before trial admitting responsibility, and he made no factual stipulations during the trial. Even at sentencing, defendant’s expression of remorse and guilt were tepid–he stated only that he felt “pretty bad.” Finally, he consistently denied responsibility for drug quantities that were properly attributed to him. U.S. v. Maliszewski, 161 F.3d 992 (6th Cir. 1998).
6th Circuit denies acceptance of responsibility reduction for defendant who went to trial. (490) Although defendant was not automatically precluded from receiving a reduction for acceptance of responsibility by virtue of his decision to go to trial, the Sixth Circuit found no indication that he “clearly demonstrated acceptance of responsibility” for his offenses. His proposed theory of defense instruction indicated that he was not part of an illegal scheme and had no knowledge that any scheme existed. This amounted to an outright denial of culpability. U.S. v. Mack, 159 F.3d 208 (6th Cir. 1998).
6th Circuit denies reduction for failing to maintain contact and possessing gun on release. (490) The Sixth Circuit upheld the court’s finding that defendant did not accept responsibility for his part in a drug conspiracy. A condition of defendant’s pre-sentencing release was that he maintain contact with the Pretrial Services Office. Within eight days of his release, he lost contact with that office, which then had to petition the district judge for an arrest warrant. The court also credited hearsay testimony that defendant possessed a gun while out on bond¾a second violation of the conditions of his pre-sentence release. U.S. v. Benjamin, 138 F.3d 1069 (6th Cir. 1998).
6th Circuit finds § 3E1.1 reduction not clear error although based on statements at sentencing. (490) The trial court granted defendant’s request for a § 3E1.1 reduction, made for the first time at the sentencing hearing, after listening to defendant’s statement at the sentencing hearing. The government argued that defendant maintained his innocence before, during and after trial, and only partially accepted responsibility after his conviction. The 6th Circuit held that the § 3E1.1 reduction was not clear error. The district judge presided over the entire trial, and was in the best position to gauge defendant’s state of mind and to assess his credibility. U.S. v. Kraig, 99 F.3d 1361 (6th Cir. 1996).
6th Circuit says guilty plea does not require acceptance of responsibility reduction. (490) Defendant claimed he deserved a reduction for acceptance of responsibility because his guilty plea conserved judicial resources. The 6th Circuit rejected this claim, since a guilty plea does not entitle a defendant to a reduction. Defendant attempted to minimize the extent of his involvement, refused to divulge the location of two cars he fraudulently obtained, and did not provide assistance to authorities. These actions supported denial of the reduction. U.S. v. Jackson, 25 F.3d 327 (6th Cir. 1994).
6th Circuit finds defendant was not denied reduction based solely on decision to go to trial. (490) The 6th Circuit rejected defendant’s claim that he was denied a reduction for acceptance of responsibility solely because he decided to go to trial. The record showed that defendant’s acceptance of responsibility prior to trial was not unconditional; he was “keenly interested” in obtaining a plea agreement. Moreover, the district court found it significant that defendant refused to testify against his co-defendants, which may have resulted in an acquittal, and refused to adequately divulge information about his superiors in his cocaine supply network. U.S. v. Phibbs, 999 F.2d 1053 (6th Cir. 1993).
6th Circuit rules that Alford plea does not bar acceptance of responsibility reduction. (490) Defendant was denied a reduction for acceptance of responsibility because she pled guilty pursuant to an Alford plea. Under an Alford plea a defendant pleads guilty in order to forego a trial but maintains his or her innocence. The 6th Circuit ruled that an Alford plea does not necessarily bar a reduction for acceptance of responsibility. First, the guidelines state that a trial court may not consider that a guilty plea is based on the practical certainty of conviction at trial. Second, the factors to be considered for an acceptance of responsibility reduction are not inconsistent with Alford pleas. However, defendant was not entitled to a reduction because the record did not contain any facts suggesting that defendant accepted responsibility. U.S. v. Tucker, 925 F.2d 990 (6th Cir. 1991).
6th Circuit finds no acceptance of responsibility by defendant who merely pled guilty. (490) Defendant argued that the district court erred in failing to reduce his base offense level for acceptance of responsibility. The 6th Circuit rejected this argument, noting that “where a defendant merely pleads guilty, he is not entitled to a reduction for acceptance of responsibility as a matter of right.” U.S. v. Saenz, 915 F.2d 1046 (6th Cir. 1990).
6th Circuit holds that failure to comply with plea agreements warranted denial of acceptance of responsibility adjustment. (490) Two drug defendants claimed that the trial court erred in reducing their offense levels under § 3E1.1, claiming that because they pled guilty they were entitled to the sentence reduction. The 6th Circuit disagreed, and affirmed the denial. It stated that when a defendant seeks to establish facts which would lead to sentence reduction, he shoulders the burden of proving these facts by a preponderance of the evidence. Because the defendants had refused to provide the grand jury testimony required by the plea agreements, the district court’s decision not to grant the reduction was not clearly erroneous. U.S. v. Castro, 908 F.2d 85 (6th Cir. 1990).
6th Circuit affirms denial of acceptance of responsibility where defendant pled guilty in face of almost certain conviction. (490) Defendant pled guilty and waived indictment within two weeks after the initial complaint was filed. However, defendant did not cease his criminal conduct until caught and continued to insist the informant had initiated the criminal conduct. The 6th Circuit held that these factors justified the district court’s refusal to grant a reduction for acceptance of responsibility to a defendant who “entered a guilty plea in the fact of almost certain conviction.” U.S. v. Carroll, 893 F.2d 1502 (6th Cir. 1990).
6th Circuit holds bank robber’s plea of guilty did not entitle him to acceptance of responsibility reduction when he was recalcitrant in all other respects. (490) A bank robber pled guilty and argued that the district court erroneously denied him a downward reduction for acceptance of responsibility. The 6th Circuit affirmed. The district court found that the defendant did not voluntarily terminate his criminal conduct, had not volunteered to pay restitution, did not voluntarily surrender to the authorities, did not voluntarily assist in recovering the fruits and instrumentalities of the offenses, and never apologized to the teller whom he had terrorized. U.S. v. Lucas, 889 F.2d 697 (6th Cir. 1989) .
7th Circuit denies acceptance reduction where defendant attempted to plead guilty the morning of trial. (490) After about a year of delay due to what the district court concluded to be malingering., defendant went to trial on drug charges. He attempted to plead guilty on the morning of trial but the district court rejected the plea because of concern about defendant’s remarks that he sought to plead guilty in order to receive medical care. After the government rested its case, defendant again expressed a desire to plead guilty, this time stating that he was aware of what he had done. The district court accepted the plea. The Seventh Circuit upheld the district court’s refusal to grant defendant a reduction for acceptance of responsibility. The district court properly relied on the last-minute nature of the plea, as the earliest attempt defendant made to plead guilty occurred on the morning of trial. In addition, defendant’s own statements during his plea colloquy did not reflect remorse, but rather suggested that he pleaded guilty in an attempt to reduce his punishment. Finally, the district court found that defendant had faked psychological illness in an attempt to evade punishment. U.S. v. Diaz-Gaudarama, 614 F.3d 387 (7th Cir. 2010).
7th Circuit rejects one-level acceptance reduction where defendant did not sign plea agreement until fourth day of trial. (490) 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 pled guilty after jury deadlocked. (490) Defendant initially pled not guilty. Three days before trial, he requested new counsel, which the court denied. The day trial was scheduled to begin, defendant pled guilty. However, four months later, defendant, represented by new counsel, moved to withdraw his guilty plea. The court granted the motion. At trial, defendant raised an entrapment defense. The jury acquitted him of two drug charges, but was unable to reach a verdict on a counterfeiting charge. Defendant decided to plead guilty to the counterfeiting charge rather than go through another trial. The Seventh Circuit upheld the district court’s denial of an acceptance of responsibility reduction. While defendant’s decision to contest the counterfeiting charge at trial was not an automatic bar to his receipt of the acceptance reduction, he did not present a “rare situation” where a defendant demonstrates acceptance of responsibility even though he exercises his constitutional right to a trial. Moreover, defendant received an obstruction of justice enhancement. A defendant whose sentence was properly enhanced for obstruction of justice is presumed not to have accepted responsibility. U.S. v. DeLeon, 603 F.3d 397 (7th Cir. 2010).
7th Circuit denies acceptance reduction where defendant went to trial to deny guilt. (490) Defendant did not plead guilty, but forced the government to go to trial to establish his guilt. At trial, he maintained that he was just “a 20-year old kid who starting hanging around the … neighborhood, was at the wrong place at the wrong time … [and was not] a conspirator.” The government was forced to disprove this claim, and it did so. The Seventh Circuit held that this was not one of those “rare situations” in which a defendant may still receive the acceptance of responsibility reduction even though he goes to trial. Defendant went to trial to deny that he was part of the conspiracy on the theory of defense that rested solely on the factual claim that he was in the wrong place at the wrong time. He did not provide any reason to believe that he went to trial for any other reason than to deny his factual guilt. U.S. v. Hernandez, 330 F.3d 964 (7th Cir. 2003).
7th Circuit rejects acceptance reduction where defendant raised more than legal issues at trial. (490) Defendant argued that he was entitled to an acceptance of responsibility reduction because he confessed immediately upon his arrest, responded positively to the government’s solicitation for assistance, pled guilty against the advice of counsel, filed a written acknowledgement during the pre-sentence process taking full responsibility for his crimes, and apologized to the court for his crimes even after the court denied the reduction. Moreover, he maintained he only went to trial because the government refused to make good on its agreement for leniency. The Seventh Circuit found no error in the denial of the reduction. Defendant could have gone to trial to preserve his defense of coercion, a purely legal issue, and not lost his opportunity to receive an acceptance of responsibility reduction. He could have challenged the government’s refusal to hold to an agreement to recommend leniency without necessarily losing an opportunity for the reduction. But he did much more than that; he put the government to its burden of proof on his factual guilt, and did not plead guilty until he saw how the trial was going. Moreover, the court was aware of each factor defendant now raised as a basis for his entitlement to the reduction, and the court did not believe that defendant had accepted moral responsibility for crime actions. U.S. v. Bosque, 312 F.3d 313 (7th Cir. 2002).
7th Circuit denies acceptance reduction to defendant who went to trial to present affirmative defense. (490) One month after being deported, defendant re-entered the US without permission. While re-entering, he twice presented immigration officials with an unexpired resident alien card, which the INS had granted him prior to his felony conviction and which he had lawfully retained following his deportation. He was later convicted of illegally re-entering the country after deportation. In the district court, defendant contended that he held an objectively reasonable belief that he had the permission of the Attorney General to return to the US due to the fact that he had retained his unexpired resident alien card. He further claimed that he told arresting officers about his unexpired resident alien card and his belief that he re-entered the US with permission. The police officers testified that at no time did defendant indicate to them that he believed he was in the US legally and that he acknowledged that he knew he should not have returned to the US. The Seventh Circuit affirmed the denial of an acceptance of responsibility reduction. Defendant asserted an affirmative defense at trial. He went to trial and forced the government to prove his guilt, thereby supporting the district court’s conclusion. U.S. v. Sandoval-Gomez, 295 F.3d 757 (7th Cir. 2002).
7th Circuit says guilty plea did not entitle defendant to acceptance reduction. (490) Defendant was initially charged with two counts of being a felon in possession of a firearm. He pled guilty to Count I and the district court eventually dismissed Count II. Defendant argued that he deserved an acceptance of responsibility reduction, even though he denied that he ever possessed the assault rifle described in Count II. Although this count was eventually dismissed by the district court, the Seventh Circuit found that it “strain[ed] credulity” to argue that defendant accepted responsibility. Defendant’s guilty plea was the only factor that he could cite in support of the reduction, and it was not sufficient for at least three reasons. First, the mere fact that a defendant pleads guilty does not, standing alone, entitle him or her to the reduction. Second, defendant continued to deny possessing the assault rifle charged in Count II, even though the district court considered that act relevant conduct in determining his base offense level. Finally, defendant did not decide to plead guilty until after the district court denied his motion to suppress and assembled jurors for trial. Such 11th hour tactics do not warrant the acceptance of responsibility reduction. U.S. v. Wallace, 280 F.3d 781 (7th Cir. 2002).
7th Circuit says regret for harm is not sufficient for acceptance reduction. (490) After pleading guilty to wire fraud, defendant sought to withdraw his plea, claiming that judge failed to inform him that the government would have to prove that the fraud was intentional. Despite this motion and his false testimony in support of it, and his further false denials at sentencing of his intent to defraud, the judge granted him a reduction for acceptance of responsibility. The Seventh Circuit reversed, since pleading guilty, by itself, is not sufficient to support a § 3E1.1 reduction. Far from acknowledging his crime, defendant consistently denied that he intended to defraud anyone. Given the nature of his conduct, this denial was unbelievable. Defendant was not only not “repentant,” but he was “brazen and deluded.” The sentencing judge believed that “ultimately, somewhere in his psyche, he has the appropriate mental state.” What the judge appeared to mean was that defendant, while refusing to acknowledge that he had intended to defraud anyone, had expressed genuine regret for the harm that he had done. However, this is not sufficient for acceptance of responsibility, and so the judge’s error was one of law rather than of fact. Acceptance of responsibility is not regret for the consequences of innocent mistakes, but recognition that one has violated the law. U.S. v. Lopinski, 240 F.3d 574 (7th Cir. 2001).
7th Circuit suggests collateral review of claim that lawyer prevented defendant from pleading guilty. (490) Defendant went to trial and denied the prosecution’s factual allegations. While a challenge to the legal basis for a charge does not preclude the possibility of an acceptance of responsibility reduction, the “adjustment 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.” USSG § 3E1.1, Application Note 2. Defendant tried to justify her failure to come forward with the truth earlier by arguing that she wanted to plead guilty but was told by her lawyer that he was too busy and that the government did not want to talk to her. The record did not support these claims. The Seventh Circuit noted that defendant’s alleged problems with her representation could be addressed on collateral review via an ineffective assistance of counsel claim. The record here supported the denial of the acceptance of responsibility reduction. U.S. v. Hamzat, 217 F.3d 494 (7th Cir. 2000).
7th Circuit rejects acceptance reduction for defendant who denied knowledge that box contained drugs. (490) Defendant was convicted under 21 U.S.C. § 841(a)(1) of “knowingly or intentionally” possessing a controlled substance with intent to distribute. At sentencing, he argued that he was entitled to an acceptance of responsibility reduction because the sole issue he raised at trial was whether the term “knowingly” implied objective as well as subjective knowledge that he was in possession of a controlled substance. Defendant had claimed at trial that he did not know that the box he gave an undercover officer contained drugs. The Seventh Circuit conceded that defendant might be entitled to the reduction had he gone to trial solely to contest the legal definition of the term “knowingly” as used in the statute of conviction. However, defendant’s purpose in going to trial was to contest his factual guilt. Although the only issue defendant contested at trial was his knowledge that the box contained drugs, knowledge, either objective or subjective, is a factual element of the charged offense. By challenging this element, defendant was denying an essential factual element of guilt and was ineligible for the § 3E1.1 reduction. U.S. v. Williams, 202 F.3d 959 (7th Cir. 2000).
7th Circuit says this is not rare case where defendant who went to trial deserved acceptance reduction. (490) Defendant argued that he was entitled to an acceptance of responsibility reduction because he admitted before trial that marijuana and a firearm found in his car belonged to him. The Seventh Circuit found that this was not close to being an “extraordinary” case where a defendant who went to trial earned the acceptance reduction. Defendant attempted to persuade two different people to claim ownership of the gun found in his car. Such conduct was inconsistent with full and clear acceptance of responsibility. In addition, the court found that defendant only admitted ownership of the marijuana in a proffer he made to the government under a letter of immunity. Because the admission was made in this protected setting, it did not reduce the government’s obligation at trial to prove each and every element of the case. Defendant still put the government to the time and expense of a trial, requiring throughout that his guilt be proven beyond a reasonable doubt, and he attempted to impede the government’s case all along the way. U.S. v. Mancillas, 183 F.3d 682 (7th Cir. 1999).
7th Circuit denies acceptance reduction for defendant who went to trial. (490) Note 2 to § 3E1.1 says that there are “rare situations” where a defendant may be eligible for an acceptance of responsibility reduction even though he exercises his constitutional right to a trial; however, it will only apply where the defendant does not put the government to its burden of proof by denying the essential factual elements of guilt. The Seventh Circuit agreed that this was not a rare case where a defendant who went to trial deserved the acceptance reduction. Defendant’s defense at trial was that no conspiracy to distribute marijuana ever existed. He argued that there was no agreement, and he argued that there were no drugs. The government had to prove at trial all of the factual elements of the conspiracy. Since the government was put to this burden, the district court was correct in not granting defendant the acceptance of responsibility reduction. U.S. v. Howard, 179 F.3d 539 (7th Cir. 1999).
7th Circuit says guilty plea insufficient for acceptance reduction where defendant lied about role in offense. (490) Defendant argued that he was entitled to an acceptance of responsibility reduction because he pled guilty and spared the government the expense of trial. The Seventh Circuit ruled that defendant’s guilty plea was insufficient to entitle defendant to an acceptance of responsibility reduction. Defendant never admitted the conduct underlying his guilty plea and likely perjured himself at his detention hearing when he testified to his lack of knowledge about the crime. Absent a truthful and complete admission of the underlying facts, defendant’s guilty plea was insufficient to support a finding of acceptance of responsibility. U.S. v. Kamoga, 177 F.3d 617 (7th Cir. 1999).
7th Circuit says reduction was clear error where pre-trial restitution was not voluntary. (490) Defendant stole money from the law firm where he was a partner. Despite the fact that defendant went to trial rather than plead guilty, the district court granted him a two-level reduction for acceptance of responsibility under note 1(a) to § 3E1.1 based on his “voluntary payment of restitution prior to adjudication of guilt.” The Seventh Circuit held that the acceptance of responsibility reduction was clear error, since defendant’s “restitution” was not voluntary. Defendant left the law firm before his fraudulent scheme was discovered. Under the firm’s partnership agreement, defendant was entitled to be paid the balance of his capital account 60 days after his departure. The firm discovered the fraud before the 60 days were up and exercised its right to offset the $78,185.82 in defendant’s capital account against the firm’s losses from the fraud. The firm also retained $9,160.47 in income that defendant had not received before his departure. This was clearly not what the guidelines meant by voluntary restitution. U.S. v. Szarwark, 168 F.3d 993 (7th Cir. 1999).
7th Circuit denies acceptance credit where defendant told jurors they made a terrible mistake. (490) Defendant was convicted by a jury of possessing a gun while subject to a protective order, in violation of a relatively new amendment to 18 U.S.C. § 922. He argued that he deserved an acceptance of responsibility reduction because he only went to trial to challenge the constitutionality of the statute, not his factual guilt. The Seventh Circuit found no acceptance of responsibility because defendant did more than question the constitutionality of § 922(g)(8) at trial. He challenged the testimony of witnesses regarding what occurred and what was discussed at the hearing at which the protection order was entered against him. In addition, defendant’s own statements indicated that he did not accept responsibility. After the jury had been polled, defendant said “You all made a terrible mistake. I forgive you.” At the sentencing hearing defendant told the court that he had been “railroaded.” U.S. v. Wilson, 159 F.3d 280 (7th Cir. 1998).
7th Circuit rules defendant who went to trial to challenge guilt did not demonstrate acceptance. (490) Defendant argued that his situation was one of the rare occasions where the defendant can receive an acceptance of responsibility reduction even though he pleads not guilty. The Seventh Circuit found that defendant did not present even a close case for receiving the § 3E1.1 reduction. Defendant at trial tested the factual claims of the indictment, he did not contest the constitutionality or applicability of the fraud statute under which he was convicted. Because defendant did not save the government or the judiciary the time or expense of trial, and because he expressed no remorse but centered his challenge around his guilt, he clearly failed to demonstrate a “rare situation” where a party pleads not guilty and still deserves the reduction. Further, defendant’s actions during trial showed evasion rather than acceptance of responsibility. U.S. v. Bonanno, 146 F.3d 502 (7th Cir. 1998).
7th Circuit denies § 3E1.1 reduction where defendant sought to withdraw plea and claimed entrapment. (490) Defendant challenged the court’s decision to deny him an acceptance of responsibility reduction. The Seventh Circuit found the court’s decision to deny the reduction was reasonable given the facts. Despite defendant’s plea of guilty, he denied his guilt in seeking to withdraw his plea and sought to shift the blame to a government informant who he claimed entrapped him. The district court found that defendant had not been truthful in his own testimony during sentencing and in his version of the offense submitted to the probation office. The district court was entitled to make these credibility determinations. U.S. v. Silva, 122 F.3d 412 (7th Cir. 1997).
7th Circuit says failure to seek 3E1.1 reduction was not ineffective assistance. (490) Police discovered a gun in defendant’s car, and he was convicted of being a felon in possession of a firearm. He argued that his counsel was ineffective in failing to seek a reduction for acceptance of responsibility because defendant admitted at trial that he possessed the gun (although he testified the possession arose from circumstances beyond his control and he never intended to possess it). The Seventh Circuit found no ineffective assistance. Defendant contested his factual guilt at trial, i.e. his intent to possess the weapon. When a defendant denies his guilt, and puts the government to its burden of proof at trial, he is generally not eligible for the reduction. Defendant steadfastly maintained at trial that he was unaware of the gun’s presence in the car. However, he had admitted to the arresting officer that he knew the gun was in the car and only later recanted the admission. The trial attorney made a rational tactical decision to forego requesting the reduction. U.S. v. Bradford, 78 F.3d 1216 (7th Cir. 1996).
7th Circuit approves acceptance reduction even though defendant went to trial. (490) Defendant was convicted of conspiracy to possess with intent to distribute cocaine. The district court granted her a reduction for acceptance of responsibility, even though she did not plead guilty and went to trial. Granting the district court “great deference,” the Seventh Circuit agreed that this was an unusual case warranting a reduction, despite the lack of a guilty plea. Upon her arrest, defendant provided a statement setting forth her actions, before she was aware of any corroborating evidence. In addition, the district court relied upon the testimony presented at the sentencing hearing concerning limitations on defendant’s perception and analytical abilities. Defendant had a low level of cognitive functioning combined with an elevated need for approval from others, and a limited ability to question and analyze her surroundings. Defendant gave the government information as she knew it and understood it. U.S. v. Thompson, 76 F.3d 166 (7th Cir. 1996).
7th Circuit says defendant who went to trial did not accept responsibility. (490) Defendant went to licensed guns dealers and bought guns for individuals who could not buy guns because they were convicted felons. The Seventh Circuit upheld the denial of a § 3E1.1 reduction, finding this was not a case where a defendant who went to trial also accepted responsibility for his conduct. Defendant initially lied and claimed that all three of the guns he had just obtained were for his own use. In an interview with the probation officer, he belittled the crimes and only belatedly expressed remorse. U.S. v. Berry, 60 F.3d 288 (7th Cir. 1995).
7th Circuit denies acceptance credit despite acquittal on count to which defendant would not plead guilty. (490) Defendant expressed a willingness to plead guilty to all charges except a gun possession charge. When the government insisted in pressing the gun charge even if defendant pled guilty to the other seven charges, defendant opted to go to trial. He was acquitted of the gun charge, and convicted of the other charges. The Seventh Circuit upheld the denial of credit for acceptance of responsibility even though defendant was willing to plead guilty to the counts of which he was convicted. The government did nothing to prevent him from pleading guilty to these seven counts. Defendant opted to go to trial because he was unsatisfied with the government’s plea bargaining position. The sentencing court did not put an unconstitutional condition on defendant’s right to trial. U.S. v. Velez, 46 F.3d 688 (7th Cir. 1995).
7th Circuit denies reduction where defendant went to trial to avoid testifying against co-defendants. (490) The 7th Circuit denied an acceptance of responsibility reduction to a defendant who went to trial. Defendant only confessed his criminal conduct after conviction and in preparation for sentencing. He did not express remorse until the trial was complete and an unfavorable verdict was returned. His only explanation for pursuing a trial was his desire to avoid being forced to testify against his co-defendants because he feared their reprisals. Even if this was a rational decision, it is not one the guidelines recognize as worthy of excusing the need to accept responsibility before trial to win a reduced sentence. U.S. v. Morgano, 39 F.3d 1358 (7th Cir. 1994).
7th Circuit reverses acceptance of responsibility reduction for defendant who went to trial. (490) Defendant was convicted of fraudulently inducing seafood distributors to deliver partial payments for the purchase of equipment defendant had agreed to manufacture but never did. The 7th Circuit reversed an acceptance of responsibility reduction because defendant did not plead guilty, and he vehemently denied any criminal intent, even after his conviction. Defendant continued to blame every other party in the deal except himself. This was not a rare instance where a defendant puts the government to its burden of proof and still accepts responsibility. U.S. v. Martinson, 37 F.3d 353 (7th Cir. 1994).
7th Circuit says this was not “rare situation” where defendant who went to trial accepted responsibility. (490) Defendant claimed he deserved an acceptance of responsibility reduction because he only went to trial to test the applicability of a conspiracy theory to his case. The 7th Circuit held that this was not a “rare situation” where a defendant accepted responsibility even though he exercised his right to a trial. Defendant did not manifest the type of pretrial acknowledgment of culpability that would compel a court to grant the reduction. At no time before trial did defendant overtly demonstrate true acceptance of responsibility. U.S. v. Clay, 37 F.3d 338 (7th Cir. 1994)
7th Circuit denies acceptance credit to defendant who went to trial and obstructed justice. (490) The district court denied defendant an acceptance of responsibility reduction because he chose to go to trial rather than plead guilty, he violated the conditions of his pretrial release, and he obstructed justice. Defendant argued that his acquittal on one count vindicated his decision to go to trial, and his defense on the other count was a technical legal issue. He also noted that his obstructive conduct occurred long before he was indicted. The 7th Circuit upheld the denial of the reduction. A defendant who has both gone to trial and obstructed justice must overcome a strong presumption to convince a court that he has accepted responsibility. Defendant’s violations of the conditions of his pre-trial release evidenced a lack of acceptance of responsibility. U.S. v. Curtis, 37 F.3d 301 (7th Cir. 1994).
7th Circuit says defendant’s request for acceptance of responsibility reduction was frivolous. (490) The 7th Circuit found that defendant’s appeal of the denial of an acceptance of responsibility reduction was frivolous. Defendant denied guilt, put the prosecution to its proof on every element of the offense, and argued, even on appeal, that he was not guilty. The court cautioned counsel that frivolous arguments such as this might color the court’s perception of defendant’s other contentions. U.S. v. Pryor, 32 F.3d 1192 (7th Cir. 1994).
7th Circuit finds appeal of denial of acceptance of responsibility reduction was frivolous. (490) Defendant went to trial, was convicted, and then asked for a reduction for acceptance of responsibility. The 7th Circuit upheld the denial of the reduction, finding the appeal frivolous, It noted that if this were a civil case, it would award sanctions under Fed. R. App. P. 38. The guidelines make clear that this reduction is designed to reward pre-trial deeds rather than post-trial words. U.S. v. Gomez, 24 F.3d 924 (7th Cir. 1994).
7th Circuit holds court did not misunderstand note 2 to section 3E1.1. (490) Defendant argued that the district court mistakenly believed that note 2 to section 3E1.1 prohibited a reduction for acceptance of responsibility because he went to trial. The 7th Circuit held that the district court did not misunderstand note 2, and properly denied the reduction. The commentary to section 3E1.1 does not rule out the possibility that a reduction can be granted after conviction by a jury. However, the decision to grant or deny the reduction should be based primarily upon pretrial statements and conduct. Here, the district court decided not to grant the reduction based on the lack of any pretrial remorse and lack of contrition in defendant’s post-trial statements. Defendant expressed regret only for making a telephone call, but refused to acknowledge his full involvement in the drug transaction. U.S. v. Rosalez-Cortez, 19 F.3d 1210 (7th Cir. 1994).
7th Circuit reverses reduction for defendant who went to trial to contest factual guilt. (490) A jury convicted defendant of drug charges. The probation officer recommended a reduction for acceptance of responsibility without providing an explanation as to how defendant was entitled to the reduction in light of application note 2 to § 3E1.1. This note provides that the reduction is not intended to apply to a defendant who only admits guilt and expresses remorse after trial. Based on the PSR’s recommendation, the judge granted defendant the reduction. The 7th Circuit reversed and remanded. Defendant denied his guilt, put the government to its burden of proof at trial, was convicted, did not express regret for his actions until after his conviction, and excused his behavior by stating that he was simply acting as a mule. The district judge failed to state how defendant earned the reduction in light of application note 2. Judge Fairchild concurred to note that a defendant should be entitled to describe exactly what he did, consistent with the facts, without impairing his chance for the reduction. U.S. v. Salvador, 18 F.3d 1380 (7th Cir. 1994).
7th Circuit denies reduction to defendant who went to trial to contest drug quantity. (490) Defendant claimed that he fully accepted responsibility for his conduct and that he went to trial only to contest the amount of cocaine involved in his offense. The 7th Circuit termed this “a rather ineffective argument.” If defendant had truly accepted responsibility for his involvement in the conspiracy, he would have contested the extent of that involvement in a sentencing hearing rather than in a complete trial. Instead he went to trial insisting that he was a smaller distributor than he actually was and denying involvement in the conspiracy. He accepted responsibility for little more than half of the conduct for which he was convicted and sentenced. U.S. v. Kozinski, 16 F.3d 795 (7th Cir. 1994).
7th Circuit denies reduction for attempt to withdraw plea and feigned incompetence. (490) The district court denied defendant a reduction for acceptance of responsibility because defendant wrote a letter to the court, asking to withdraw his guilty plea because he had anticipated a substantially shorter sentence. In addition, the court concluded that defendant feigned incompetence. The 7th Circuit held that these factors supported the finding that defendant had failed to accept responsibility. Moreover, defendant never identified how he accepted responsibility. U.S. v. Fuller, 15 F.3d 646 (7th Cir. 1994).
7th Circuit denies reduction where defendant made belated attempt to withdraw plea. (490) The 7th Circuit affirmed that defendant’s belated attempt to withdraw his guilty plea was grounds for denial of a reduction for acceptance of responsibility. The district court found that defendant’s decision to fire his lawyer and then attempt to withdraw his plea was not consistent with an affirmative acceptance of personal responsibility for his criminal conduct. U.S. v. Price, 988 F.2d 712 (7th Cir. 1993).
7th Circuit affirms denial of reduction to defendant who pled guilty to protect wife. (490) Defendant entered his guilty plea in an attempt to have the charges against his wife dismissed, and failed to provide financial information to the probation officer. The 7th Circuit affirmed that the denial of a reduction for acceptance of responsibility did not penalize defendant for exercising his 5th Amendment privilege against self-incrimination. The record amply supported the district court’s determination. Apart from the plea, there was no evidence of defendant’s affirmative recognition of his guilt. Had he provided the probation officer with the requested financial information, he may well have given the district court a factual basis for the adjustment. U.S. v. Cojab, 978 F.2d 341 (7th Cir. 1992).
7th Circuit upholds denial of acceptance of responsibility reduction for attempt to withdraw guilty plea. (490) The 7th Circuit upheld the district court’s denial of an acceptance of responsibility reduction based upon defendant’s attempt to withdraw his guilty plea and his refusal to admit the extent of his involvement in the conspiracy. The court’s consideration of his motion to withdraw his guilty plea did not penalize defendant for insisting on his right to trial. The district court found that defendant’s attempt to withdraw his plea was nothing more than “prevarication” and an attempt to “manipulate” and “whipsaw” the court. It was rational to conclude that someone who does this has not accepted responsibility for his offense. Moreover, the judge found that defendant was not candid about his involvement in the conspiracy for which he was convicted. U.S. v. Trussel, 961 F.2d 685 (7th Cir. 1992).
7th Circuit denies acceptance of responsibility where inmate pled guilty to facilitate move to new prison. (490) The district court denied defendant a reduction for acceptance of responsibility in part because he said he pled guilty only to expedite his transfer to another prison, and because he threatened to harm a security officer who testified against him at a evidentiary hearing. The 7th Circuit held these were valid grounds, despite defendant’s denial that he made the statement or threat. The court’s decision to rely on the presentence report rather than the defendant was essentially a credibility judgment. The probation officer’s statement in the presentence report that defendant told him that he only pled guilty to expedite a transfer was consistent with defendant’s statement at sentencing that he wanted to go to a new institution. The threat, reported to the probation officer by staff at defendant’s prison, was rendered credible by the disclosure that after defendant pled guilty, he assaulted a different corrections officer. U.S. v. Beal, 960 F.2d 629 (7th Cir. 1992).
7th Circuit finds that agreeing to forfeiture of assets does not equal acceptance of responsibility. (490) Defendant pled guilty to various narcotics offenses and, as part of the plea agreement, agreed to forfeit any interest he might have in any property alleged to be forfeitable to the United States. He claimed that because of this fact, he was entitled to credit for acceptance of responsibility. The 7th Circuit disagreed, stating that the defendant did not voluntarily decide to turn over the money and automobile which were forfeited. The property had already been seized and was in the possession of the government, and defendant had little chance to avoid forfeiture of the property. The court concluded that “it appears that his agreement not to contest the forfeiture was motivated more by his concern to improve his potential disposition than by true remorse.” U.S. v. Franklin, 902 F.2d 501 (7th Cir. 1990).
8th Circuit rejects acceptance reduction for defendant who went to trial. (490) Defendant appealed the district court’s denial of an acceptance of responsibility reduction, even though he exercised his right to trial. The Eighth Circuit found no error. 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 guilty.” § 3E1.1, Note 2. Defendant’s case was not the rare instance when the issues for trial did not relate to factual guilt. At trial, he cross-examined witnesses and moved for a judgment of acquittal on the ground that the government failed to provide identity. U.S. v. Perry, 640 F.3d 805 (8th Cir. 2011).
8th Circuit denies acceptance reduction for defendant who pled guilty but also obstructed justice. (490) The district court found that defendant did not meet his burden of proving that he accepted responsibility. Although he pled guilty, he presented no evidence that he assisted in the criminal investigation and did not admit his obstructive conduct. The court thus found that defendant did not present the extraordinary case in which a defendant may qualify for a reduction while at the same time being subject to an obstruction of justice increase. The court also found a second reason to deny the reduction—in his plea agreement, defendant stipulated to the upward adjustment for use of a minor, but then at sentencing argued that it should not apply. The Eighth Circuit agreed that defendant’s circumstances did not present an “extraordinary case” warranting a reduction for acceptance of responsibility despite an increase for obstruction of justice. U.S. v. Jones, 612 F.3d 1040 (8th Cir. 2010).
8th Circuit denies acceptance reduction to defendant who made misrepresentations in motion to withdraw plea, and made inconsistent statements. (490) Defendant pled guilty to sexual exploitation of a child and receipt of child pornography. He argued that the district court erred in denying him a two-level reduction for acceptance of responsibility under § 3E1.1(a). The district court found that defendant’s reluctance to plead guilty and attempt to withdraw his plea showed he had not accepted responsibility. The court also found he made misrepresentations in both his pro se motion to withdraw and the attorney-filed motion to withdraw. Additionally, the district court found that at allocution, defendant made statements inconsistent with acceptance of responsibility, denying that his conduct hurt anyone and claiming that one minor victim consented. The Eighth Circuit ruled that the district court did not clearly err in denying a downward adjustment for acceptance of responsibility. U.S. v. Bastian, 603 F.3d 460 (8th Cir. 2010).
8th Circuit denies acceptance reduction for defendant who argued that pictures did not contain sexually explicit conduct. (490) Defendant was convicted of child abuse offenses based on numerous photos he took of his 6-year old daughter in various stages of dress wearing pantyhose or thigh-high stockings. Defendant stated that he had a fetish for feet and pantyhose. He acknowledged that he acted immorally but believed he did not act illegally. He argued that the court erred in denying him an acceptance of responsibility reduction because his purpose in going to trial was to challenge whether the images met the legal definition of “sexually explicit conduct, i.e. he was challenging the applicability of the statutes to his conduct. The Eighth Circuit upheld the denial of an acceptance of responsibility reduction. Defendant was challenged his factual guilt, not legal applicability of the statutes. The question of whether materials depict “lascivious exhibition of the genitals,” an element of the crime, is for the finder of fact. U.S. v. Wallenfang, 568 F.3d 649 (8th Cir. 2009).
8th Circuit upholds denial of acceptance reduction to defendant who raised entrapment defense. (490) An acceptance of responsibility reduction is not appropriate if the government goes through the burden of proving its case at trial, unless the defendant was merely ascertaining the viability of an issue unrelated to his guilt, such as a constitutional challenge to a statue. See Note 2 to § 3E1.1. A defendant asserting an entrapment defense is not entitled to a reduction under § 3E1.1 because such a defense “clearly shows that he did not accept responsibility for the crime of conviction.” U.S. v. Chevre, 146 F.3d 622 (8th Cir. 1998). Therefore, the Eighth Circuit ruled that the district court did not abuse its discretion by denying defendant a two-level reduction for his belated acceptance of responsibility. U.S. v. Kendrick, 423 F.3d 803 (8th Cir. 2005).
8th Circuit rejects acceptance reduction for defendant who put government to burden of proof at trial. (490) Defendant was convicted of bank robbery. He argued that he was entitled to an acceptance of responsibility reduction because after being apprehended he confessed to the authorities, consented to various searches, and restored the stolen money to the bank. However, the reduction is not intended to apply to a defendant who puts the government to its burden of proof at trial, although it may apply in rare situations where a defendant exercises his constitutional right to a trial. These “rare situations” are normally confined to cases where the defendant goes to trial only to preserve some contestable legal issue, such as the validity of the statute under which he is prosecuted. Defendant did not challenge the constitutionality of the bank robbery statute, or attack its application to him, or offer some other exceptional defense; he merely put the government to its proof. Therefore, the Eighth Circuit ruled that the district court did not clearly err in refusing to reduce defendant’s offense level. U.S. v. Sypolt, 346 F.3d 838 (8th Cir. 2003).
8th Circuit holds that defendant who consistently denied guilt throughout trial did not accept responsibility. (490) Over a period of two months, defendant helped her boyfriend, a convicted felon, purchase multiple firearms from three sporting goods stores. She contended that she deserved an acceptance of responsibility reduction because she went to trial only out of fear that her boyfriend’s family would not take care of her children if she pleaded guilty instead. The district court was aware of defendant’s situation regarding her children but found that an acceptance reduction was not warranted because she consistently denied her factual guilt throughout the trial. The Eighth Circuit affirmed the denial of the reduction. Defendant never admitted to purchasing guns “with and for” her boyfriend, and thus did not sufficiently stipulate to “guilty conduct eliminating factual elements of guilt or limiting trial to a constitutional or statutory challenge.” U.S. v. Abfalter, 340 F.3d 646 (8th Cir. 2003).
8th Circuit rejects acceptance reduction for defendant who went to trial, contested element of offense, and challenged relevant conduct. (490) Defendant argued that he deserved an acceptance of responsibility reduction even though he went to trial. The Eighth Circuit disagreed. Defendant challenged the essential elements of the offense and also contested relevant conduct which the district court found to be true – sales of additional quantities of drugs. Therefore, defendant acted in a manner inconsistent with acceptance of responsibility. U.S. v. Gregor, 339 F.3d 666 (8th Cir. 2003).
8th Circuit rejects acceptance reduction for defendant who challenged constructive possession at trial. (490) A jury convicted defendant of being an unlawful user of a controlled substance in possession of a firearm, in violation of 18 U.S.C. § 922(g)(3). A defendant who goes to trial may still be eligible for an acceptance of responsibility reduction in “rare situations” such as where a defendant goes to trial to assert issues unrelated to factual guilt. The Eighth Circuit held that a challenge to constructive possession is a challenge to factual guilt just as a challenge to actual possession is a challenge to factual guilt: actual and constructive possession are alternative ways of satisfying an element of the offense, and each is decided by the jury. The district therefore erred in granting an acceptance of responsibility reduction to defendant, who challenged her constructive possession of the firearms at trial. U.S. v. Yirkovsky, 338 F.3d 936 (8th Cir. 2003).
8th Circuit says court clearly erred in granting acceptance reduction to defendant who denied factual guilt. (490) The district court granted defendant a two-level acceptance of responsibility reduction, concluding that this was one of the “rare situations” in which a defendant is entitled to the reduction even though he exercised his right to trial. The court reasoned that defendant “did not dispute any of the essential elements of the crime, but instead relied on a defense of not ‘willfully’ violating the law. This defense is not a defense to the crime charged and thus cannot be construed as a contest of any of the essential elements.” The Eighth Circuit held that the district court clearly erred in granting the acceptance of responsibility reduction. The inquiry is whether the defendant put the government to its proof by denying his factual guilt. Defendant’s defense, even though not a legally valid one under the relevant statute, was a denial of factual guilt that put the government to its proof. In fact, defendant continued to blame the driver of the vehicle for entering the country without defendant’s knowledge of consent. These actions were inconsistent with one who has truly accepted responsibility for his actions. U.S. v. Dyck, 334 F.3d 736 (8th Cir. 2003).
8th Circuit holds that defendant who challenged factual guilt did not accept responsibility. (490) The reduction for acceptance of responsibility usually rewards a guilty plea, but defendant went to trial. Even on appeal he contended that he was not guilty and asked the court to reverse his conviction. The Eighth Circuit held that defendant did not accept responsibility. Nor did defendant’s conduct fall within the special case of Note 2 to § 3E1.1, pleading not guilty only to obtain a ruling on a contested legal issue. Defendant argued at trial and on appeal factual as well as legal innocence. Moreover, defendant consulted an attorney before committing his offense. Counsel told him absolutely that he should not sell the stolen intellectual data, but defendant went ahead and tried to complete the sale. After being caught, he committed new offenses. He was directed by a grand jury subpoena to return the stolen data. He feigned compliance while retaining an electronic copy. Then he tried to persuade a friend who knew the truth to lie to the grand jury. Only when this effort was revealed did defendant finally clean his computer hard drive of the stolen intellectual property. U.S. v. Lange, 312 F.3d 263 (7th Cir. 2002).
8th Circuit denies acceptance reduction to defendant who contested charges before, during, and after trial. (490) When a defendant contests essential elements of crimes charged at trial, as defendant did, it is only the rare case where his pretrial statements and conduct nonetheless demonstrate acceptance of responsibility. Defendant contested the charges both before, during and after the trial. Therefore, the Eighth Circuit found that he was not entitled to an acceptance of responsibility reduction. U.S. v. Montano-Gudino, 309 F.3d 501 (8th Cir. 2002).
8th Circuit denies acceptance reduction to defendant who challenged factual guilt at trial. (490) The acceptance of responsibility reduction generally does not apply to a defendant who puts the government to its burden of proof at trial by denying factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” Note 2 to § 3E1.1. Defendant put the government to its burden of proof at trial, arguing that he was not a part of the drug conspiracy and did not move to Minnesota to manufacture methamphetamine. This was clearly related to his factual guilt. Accordingly, the Eighth Circuit concluded that the district court did not err in denying defendant’s motion for an acceptance reduction. U.S. v. Zimmer, 299 F.3d 710 (8th Cir. 2002).
8th Circuit denies acceptance reduction to defendant who went to trial. (490) Note 2 to § 3E1.1 says that the acceptance 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.” A defendant who has proceeded to trial may overcome this bar in the rare instance when the issue for trial did not relate to factual guilt. However, defendant did not present such an instance: from pretrial to sentencing, he denied any connection to the methamphetamine found in the bathroom of his house. The district court found he was responsible for these drugs. Thus, the Eighth Circuit held that the denial of the acceptance reduction was not clearly erroneous. U.S. v. Gonzalez-Rodriguez, 239 F.3d 948 (8th Cir. 2001).
8th Circuit denies acceptance reduction where defendant contested guilt and blamed others. (490) Defendant was arrested when police executed a search warrant for an apartment where defendant and another man were actively engaged in the production of false identification documents. He was read his Miranda rights in Spanish but was not informed, until four days after his arrest, of his right as a Mexican national to have the Mexican consulate notified, pursuant to Article 36 of the Vienna Convention on Consular Relations. Before the jury, defendant argued that he was a victim of circumstances who happened to be in an apartment where illegal acts were taking place but who was not participating in them. Defendant challenged the court’s refusal to grant him a reduction for acceptance of responsibility, contending that he only went to trial to vindicate his Article 36 rights. The Eighth Circuit upheld the denial of the acceptance reduction. Not only did defendant contest the fact of his guilt and challenge evidence at trial, he made contradictory statements concerning his responsibility both before and after his conviction and continued to insist that his involvement in the document falsification scheme was attributable to someone else. U.S. v. Santos, 235 F.3d 1105 (8th Cir. 2000).
8th Circuit denies additional one-level acceptance reduction where court rejected pre-trial pleas. (490) Defendant claimed entitlement to the full three-level acceptance of responsibility reduction because twice before trial she unsuccessfully attempted to enter a plea of guilty. Receiving the additional one-level reduction depends upon a defendant’s “timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently.” The Eighth Circuit upheld the denial of the reduction despite defendant’s two unsuccessful attempt to enter a guilty plea. First, defendant’s plea attempts—one occurring a month and the other two weeks before trial, nearly a year and a half after the indictment, and following a flurry of pre-trial motions—were probably untimely since they did not “serve the interests of judicial economy, and contained no hint that the government could ignore preparing for trial.” In any event, no guilty plea was ever entered because the district court found both plea attempts unacceptable. It is appropriate for a district court to refuse the additional one-level reduction to a defendant who fails to offer an acceptable plea. U.S. v. Ervasti, 201 F.3d 1029 (8th Cir. 2000).
8th Circuit holds that attempts to plead guilty did not outweigh lack of remorse. (490) Defendant contended that he should have received a full three-level acceptance of responsibility reduction due to the “unique” circumstances of his case, including the fact that he twice attempted to plead guilty before trial. Although attempting to plead guilty may provide “some evidence” of acceptance of responsibility, an attempt to plead guilty is not a guarantee of receiving the adjustment. See note 3 to § 3E1.1. The Eighth Circuit held that defendant did not clearly demonstrate acceptance of responsibility for his offense. At trial, defendant repeatedly denied any intent to defraud his clients and claimed entitlement to use the impounded monies as he pleased. At sentencing, while defendant stated the words “I apologize,” he expressly limited his regret to not having found an investor to bail out the scheme. The district court was not required to accept defendant’s “bare claims of remorse.” U.S. v. Ervasti, 201 F.3d 1029 (8th Cir. 2000).
8th Circuit denies acceptance reduction to defendant who took case to trial. (490) Defendant was convicted by a jury of making false statements during a firearms purchase, being a felon in possession of a firearm, and receipt of a firearm by an indicted person. Defendant argued that he deserved a reduction for acceptance of responsibility because he stipulated to the essential elements of one count and admitted elements of the other two counts in his opening statement and while testifying at trial. The district court found defendant’s taking the case to trial, and his testimony at trial, “did not and does not constitute acceptance of responsibility.” The Eighth Circuit found this decision not clearly erroneous. “A defendant who maintains innocence, blames others, and expresses regret only for the consequences of criminal conduct does not accept responsibility within the meaning of § 3E1.1. U.S. v. Kind, 194 F.3d 900 (8th Cir. 1999).
8th Circuit says inconsistent statements about crime justified denial of reduction. (490) Defendant, a former police officer, was convicted of civil rights violations for beating a prisoner in the city jail. After stipulating to his conduct and pleading guilty, defendant wrote a letter to the district court in which, contrary to both his stipulation and to his plea, he denied ever striking the prisoner. The Eighth Circuit agreed that defendant’s later denial of the crime was sufficient to deny an acceptance of responsibility reduction. U.S. v. Colbert, 172 F.3d 594 (8th Cir. 1999).
8th Circuit denies acceptance reduction where defendant did not plead guilty until after first trial. (490) Defendant, a politician, was convicted of bribery. He argued that the district court erred in not granting him a reduction for acceptance of responsibility. The Eighth Circuit found defendant not entitled to the reduction since defendant did not admit his wrongdoing until after his first trial. Although the court commended defendant for avoiding a second trial by pleading guilty to two charges, voluntarily surrendering his license to practice law, and publicly apologizing to his constituents, it could not ignore the fact that defendant did not plead guilty until after his first trial, and at that first trial, he strongly denied accepting any payments from a lobbyist in exchange for his referral. U.S. v. Griffin, 154 F.3d 762 (8th Cir. 1998).
8th Circuit denies acceptance of responsibility to defendant who entered Alford plea. (490) Defendant entered an Alford plea to being a felon in possession of a firearm. He contended that he deserved an acceptance of responsibility reduction because of his guilty plea. The Eighth Circuit held that the guilty plea by itself did not entitle defendant to a § 3E1.1 reduction. The district court had the opportunity to observe defendant’s demeanor both at the plea hearing and at sentencing. Therefore, the court did not clearly err in denying the reduction. The court’s consideration of the nature of the guilty plea¾an Alford plea¾did not violate his 5th Amendment rights. The court was careful to clarify that the Alford plea was only a factor in the decision whether to grant the reduction, not a disqualifier. U.S. v. Morris, 139 F.3d 582 (8th Cir. 1998).
8th Circuit directs court to reconsider § 3E1.1 where defendant offered to plead guilty to drug quantity for which he was found responsible. (490) Defendant was charged with conspiracy to distribute five or more kilograms of cocaine. Shortly after indictment he offered to plead guilty for involvement with two kilograms of cocaine, but the government refused to accept the plea offer because he would not admit responsibility for five or more kilograms. A jury convicted him without making a specific finding, but during sentencing, the government conceded that he was only involved with two kilograms of cocaine. Nevertheless, the court denied an acceptance of responsibility reduction. The Eighth Circuit directed the district court to reconsider because defendant had offered to plead guilty to the drug quantity for which he was found responsible. Defendant consistently and repeatedly admitted that he was involved with two kilograms of cocaine. The probation office acknowledged that defendant had accepted responsibility for his involvement with two kilograms of cocaine, but objected to the reduction only because defendant had failed to accept responsibility for five kilograms. U.S. v. Guerrero-Cortez, 110 F.3d 647 (8th Cir. 1997).
8th Circuit finds no acceptance where defendant tried to withdraw plea and denied involvement with cocaine base. (490) At his plea hearing, defendant acknowledged that his criminal activity involved more than 50 grams of cocaine base. The Eighth Circuit affirmed the denial of a § 3E1.1 reduction for acceptance of responsibility because defendant later filed a motion to withdraw the plea, claiming he was not guilty, and at sentencing denied involvement with cocaine base. U.S. v. Knight, 96 F.3d 307 (8th Cir. 1996).
8th Circuit denies reduction where defendant disclaimed drugs in hotel room. (490) Defendant claimed he accepted responsibility by twice admitting his guilt and providing timely information to authorities about his involvement in the offense. He claimed he only withdrew his first guilty plea to preserve his Fourth Amendment challenge to an airport stop and the search of his hotel room, which his first appointed attorney failed to consider. The Eighth Circuit found ample support for denying the reduction. At his second change of plea hearing, defendant stated on the record that the only reason he was arrested was because he was a black male in a hotel, and that he would never have left drugs in his hotel room, and that if the drugs belonged to him, his fingerprints would have been all over them. U.S. v. Johnigan, 90 F.3d 1332 (8th Cir. 1996).
8th Circuit denies acceptance of responsibility reduction for attempting to withdraw plea. (490) Defendant originally pled guilty, but later moved to withdraw his plea on the grounds that his attorney had failed to properly analyze his entrapment defense. The motion was denied. The Eighth Circuit approved the denial of an acceptance of responsibility reduction. Although defendant admitted committing the acts charged, by attempting to withdraw his guilty plea, he had failed to admit the essential element of intent. U.S. v. Newson, 46 F.3d 730 (8th Cir. 1995).
8th Circuit denies acceptance credit where plea to one count did not relieve government’s burden of proof. (490) Defendant pled guilty to drug charges and was convicted by a jury of carrying a firearm during a drug trafficking offense. He argued that he accepted responsibility by confessing to the drug charge on the day he was arrested and later pleading guilty to that offense (although not until the second day of trial). The 8th Circuit upheld the denial of the reduction. Defendant’s guilty plea to the drug count did not alleviate the government’s burden of proof since the firearms charge required much of the same proof as the firearms charge. U.S. v. King, 36 F.3d 728 (8th Cir. 1994).
8th Circuit rules that denial of acceptance of responsibility was not based on pre-offense conduct. (490) Defendant sent 60 letters to a magistrate judge making it clear that he desired a sexual relationship with her. Harassment charges were dismissed after defendant refrained from contacting the judge for one year. Defendant then resumed sending letters to the judge and was convicted of mailing threatening communications. Defendant claimed he was improperly denied a reduction for acceptance of responsibility based on his persistence in sending the letters despite warnings from the FBI. The 8th Circuit ruled that the denial was not based on pre-offense conduct. Defendant never admitted the letters were a threat. The district court stated that defendant “play[ed] games with [the court] on the witness stand.” U.S. v. Whitfield, 31 F.3d 747 (8th Cir. 1994).
8th Circuit rules that denial of acceptance of responsibility was not based on pre-offense conduct. (490) Defendant sent 60 letters to a magistrate judge making it clear that he desired a sexual relationship with her. Harassment charges were dismissed after defendant refrained from contacting the judge for one year. Defendant then resumed sending letters to the judge and was convicted of mailing threatening communications. Defendant claimed he was improperly denied a reduction for acceptance of responsibility based on his persistence in sending the letters despite warnings from the FBI. The 8th Circuit ruled that the denial was not based on pre-offense conduct. Defendant never admitted the letters were a threat. The district court stated that defendant “play[ed] games with [the court] on the witness stand.” U.S. v. Whitfield, 31 F.3d 747 (8th Cir. 1994).
8th Circuit denies reduction despite post-trial statement of remorse in PSR. (490) Defendant contended that she was entitled to a reduction for acceptance of responsibility because she expressed post-trial remorse for her actions in a one paragraph statement included in her presentence report. The 8th Circuit rejected this contention. The reduction is not intended to apply to defendant who puts the government to its burden of proof at trial, and only after conviction admits guilt and expresses remorse. U.S. v. Lucht, 18 F.3d 541 (8th Cir. 1994).
8th Circuit denies reduction where defendant did not admit elements of gambling operation. (490) Defendant contended he was entitled to a reduction for acceptance of responsibility despite his failure to plead guilty because he merely challenged the applicability of a statute to his conduct. The 8th Circuit rejected his claim, since he did not admit to any of the essential elements of operating an illegal gambling business. In spite of the substantial evidence the government amassed against him, at no time before, during or after trial did he admit to any of the conduct the government sought to prove. U.S. v. Trupiano, 11 F.3d 769 (8th Cir. 1993).
8th Circuit denies reduction where defendant did not admit elements of gambling operation. (490) Defendant contended he was entitled to a reduction for acceptance of responsibility despite his failure to plead guilty because he merely challenged the applicability of a statute to his conduct. The 8th Circuit rejected his claim, since he did not admit to any of the essential elements of operating an illegal gambling business. In spite of the substantial evidence the government amassed against him, at no time before, during or after trial did he admit to any of the conduct the government sought to prove. U.S. v. Trupiano, 11 F.3d 769 (8th Cir. 1993).
8th Circuit denies acceptance of responsibility for defendant who pled guilty but minimized role in offense. (490) 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 suggests reconsidering acceptance of responsibility where one conviction reversed. (490) Defendant stood trial and was convicted on two related counts. On appeal, he contested the sufficiency of the evidence to support conviction on one of the counts, and the 8th Circuit agreed with defendant. He also contested the district court’s refusal to adjust his base offense level for acceptance of responsibility. The 8th Circuit noted that a defendant who proceeds to trial to challenge the applicability of a statute to his conduct may still qualify for the reduction, and it suggested that the district court revisit the issue on remand. U.S. v. Termini, 992 F.2d 879 (8th Cir. 1993).
8th Circuit upholds denial of reduction where defendant attempted to withdraw guilty plea. (490) The 8th Circuit upheld the denial of a reduction for acceptance of responsibility even though the district court failed to fully explain its reasons for denying the reduction. Defendant’s attempt to withdraw his guilty plea after the court announced that it intended to depart upward, was inconsistent with an affirmative acceptance of personal responsibility for the criminal conduct. Judge McMillian dissented. U.S. v. Passmore, 984 F.2d 933 (8th Cir. 1993).
8th Circuit denies acceptance of responsibility reduction to defendant who pled guilty. (490) The 8th Circuit affirmed a denial of an acceptance of responsibility reduction despite defendant’s guilty plea. Neither the 1991 nor the November 1992 version of section 3E1.1 requires a reduction whenever a defendant admits the elements of the offense. Under both versions, a defendant who enters a guilty plea is not entitled to an adjustment as a matter of right. Here, the district court stated that defendant was not sincere in accepting responsibility for his crime. His attitude was that of having been caught on a technicality and not that he “did wrong.” The probation officer noted that defendant did not give any believable indication that he had accepted responsibility for his offense. U.S. v. Lublin, 981 F.2d 367 (8th Cir. 1992).
8th Circuit, en banc, affirms denial of acceptance of responsibility reduction despite guilty plea. (490) In U.S. v. Furlow, 952 F.2d 171 (8th Cir. 1991) an 8th Circuit panel held it was improper for the district court to deny a reduction for acceptance of responsibility in the erroneous belief that merely pleading guilty was not sufficient to justify the reduction. On rehearing, the en banc 8th Circuit upheld the denial of the reduction, finding that the district court had denied the reduction after considering all of the circumstances of the case. The court explicitly accepted the government’s argument that although acceptance of responsibility might be proper for a guilty plea alone, the defendant here had not accepted responsibility for his conduct. U.S. v. Furlow, 980 F.2d 476 (8th Cir. 1992) (en banc).
8th Circuit denies reduction to defendant who pled guilty and testified for government. (490) Defendant argued he was entitled to a reduction for acceptance of responsibility because he pled guilty and testified for the government. The 8th Circuit affirmed the denial of the reduction because defendant suborned perjury and perjured himself before the grand jury, and raised a transparently frivolous claim in an attempt to withdraw his guilty plea. U.S. v. Jagim, 978 F.2d 1032 (8th Cir. 1992).
8th Circuit denies reduction to defendant who went to trial in part to test applicability of statute. (490) Defendant contended that he should have received an acceptance of responsibility reduction because prior to his trial he cooperated in gathering his assets for liquidation and because the purpose of his trial was to test the applicability of the statute to his conduct. The 8th Circuit affirmed the denial of the reduction. While one of defendant’s defense theories rested on the applicability of the statute to his conduct, defendant also argued that he possessed a good faith belief that he was authorized to perform the acts for which he was convicted. Thus, the trial also focused on defendant’s factual guilt. U.S. v. Peery, 977 F.2d 1230 (8th Cir. 1992).
8th Circuit upholds denial of acceptance of responsibility reduction to defendant who pled guilty. (490) The 8th Circuit affirmed the district court’s decision to deny defendant a reduction for acceptance of responsibility. Although defendant pled guilty, stipulated to the facts of his offense and did not deny the offense, he also fled from authorities, attempted to hide an express mail package, and consistently refused to expound on the facts of the offense. U.S. v. Kloor, 961 F.2d 1393 (8th Cir. 1992).
8th Circuit upholds denial of acceptance of responsibility to defendant who entered late guilty plea. (490) The 8th Circuit rejected defendant’s argument that he was entitled to a reduction for acceptance of responsibility because of his guilty plea, even though he originally failed to appear for trial and only pled guilty after he surrendered to authorities. A guilty plea does not automatically entitle a defendant to a reduction for acceptance of responsibility. U.S. v. Wichmann, 958 F.2d 240 (8th Cir. 1992).
8th Circuit reverses acceptance of responsibility reduction where defendant withdrew guilty plea. (490) The 8th Circuit ruled that the district court erroneously granted defendant a reduction for acceptance of responsibility. Defendant pled guilty but later withdrew his plea, maintaining at trial that no sexual contact took place. The fact that defendant admitted to the crime and accepted responsibility when he entered his guilty plea became irrelevant once he proceeded to trial and denied the offense. U.S. v. Amos, 952 F.2d 992 (8th Cir. 1991), abrogated on other grounds by U.S. v. Allery, 175 F.3d 610 (8th Cir. 1999).
8th Circuit upholds denial of acceptance of responsibility reduction despite guilty plea and agreement to cooperate. (490) The 8th Circuit affirmed the district court’s denial of a reduction for acceptance of responsibility. Defendant’s guilty plea and his agreement to cooperate with the government were factors to be considered, but they did not “compel the conclusion that the District Court could not exercise its discretion by denying the requested reduction, especially in light of the Court’s decision to apply the obstruction of justice sentencing enhancement.” U.S. v. Duke, 935 F.2d 161 (8th Cir. 1991).
8th Circuit affirms denial of acceptance of responsibility reduction despite defendant’s admission of guilt. (490) Defendant argued that he was entitled to a reduction for acceptance of responsibility because he admitted his involvement in the conspiracy, indicated a desire to cooperate with the government, acknowledged his guilt while testifying at trial and disclosed his involvement to his probation officer for use in preparing his presentence report. The 8th Circuit upheld the denial of the reduction. Defendant was caught transporting 70 pounds of marijuana. He was advised to contact the government if he wished to cooperate, and although he later met with agents and gave a full statement of his activities, he subsequently refused to cooperate further. He admitted his acts, but denied that he did anything wrong and expressed no remorse. U.S. v. Clair, 934 F.2d 943 (8th Cir. 1991).
8th Circuit denies acceptance of responsibility reduction despite defendant’s acknowledgement of guilt. (490) Defendant argued that statements made by him acknowledging his guilt in the presentence report and during allocution at sentencing entitled him to a downward adjustment for acceptance of responsibility. The 8th Circuit rejected this claim, noting that this adjustment does not apply to a defendant who only admits guilt after putting the government to its burden of proof at trial by denying essential elements of guilt. U.S. v. Stuart, 923 F.2d 607 (8th Cir. 1991).
8th Circuit finds that guilty pleas supported district court’s determination that defendants accepted responsibility. (490) The government argued that the district court erred in granting defendants a two level reduction for acceptance of responsibility, since mere guilty pleas, without additional affirmative acts, are an insufficient basis for acceptance of responsibility. The 8th Circuit upheld the district court’s determination, noting that the sentencing court was entitled to great deference. Although a guilty plea is generally not conclusive in determining whether or not a defendant has accepted responsibility, “[n]othing in the Guidelines requires the district court to find that a defendant exhibits any of the specific listed objective acts if it finds that he has accepted responsibility . . . . Therefore, if a defendant pleads guilty for the offense that he or she committed, the district court may find that the defendant’s guilty plea justifies the two-level reduction pursuant to § 3E1.1.” U.S. v. Russell, 913 F.2d 1288 (8th Cir. 1990).
8th Circuit holds that acceptance of responsibility may be based solely upon a plea of guilty. (490) The sentencing court denied the reduction for acceptance of responsibility, finding that the mere fact that a defendant pleads guilty and admits to incriminatory conduct does not mean that he has accepted responsibility. The 8th Circuit vacated the sentence, concluding that the district court was erroneous in finding that the guidelines “tie the district court’s hands by prohibiting the reduction unless the defendant does something in addition to pleading guilty.” Although a district court retains discretion to refuse to grant the reduction under these circumstances, it is not mandatory that it do so. The court concluded that the district court’s construction of the guidelines was too narrow. U.S. v. Sklavenitis, 905 F.2d 1166 (8th Cir. 1990).
8th Circuit holds that acceptance of responsibility does not require that plea be accompanied by affirmative act. (490) Defendant’s plea agreement stipulated to a two point reduction for acceptance of responsibility and candidness and cooperation with the probation officers. The district court refused to grant the reduction, ruling that a plea of guilty without other affirmative acts was insufficient to justify a reduction. The 8th Circuit reversed, holding such an interpretation of guideline § 3E1.1 would penalize those caught red-handed or those who wished to consult an attorney before pleading guilty. The court wrote that the district court retains discretion to grant a reduction if it believed defendant demonstrated a recognition and affirmative responsibility as well as sincere remorse for his crime. U.S. v. Knight, 905 F.2d 189 (8th Cir. 1990).
8th Circuit upholds denial of acceptance of responsibility, even though parties stipulated that defendant was entitled to the reduction. (490) Defendant pled guilty to possessing an unregistered firearm and appealed the district court’s denial of a two level reduction for acceptance of responsibility even though the defendant and the government had stipulated that he was entitled to the reduction. The probation report counseled against granting the reduction. Both parties objected to this assertion. A divided 8th Circuit affirmed, finding that there was a foundation for the denial of the reduction. The defendant did not voluntarily surrender, attempted to flee, discarded the gun, and attempted to shift ownership of the gun to another. Given the fact that the ultimate determination lies with the sentencing judge, the finding was not clearly erroneous. U.S. v. Cardenas, 896 F.2d 317 (8th Cir. 1990).
9th Circuit says attempt to withdraw plea permitted government to oppose acceptance of responsibility. (490) “Plea agreements are contractual in nature and are measured by contract law standards.” U.S. v. Keller, 902 F.2d 1391, 1393 (9th Cir. 1990). The government’s failure to move for a substantial assistance departure under § 5K1.1 did not breach the agreement because the written agreement contained no such promise. Moreover, the agreement stated that the government would not recommend an adjustment for acceptance of responsibility if defendant attempted to withdraw his plea. Because he indeed attempted to withdraw his plea, “the government was free to oppose or not recommend the adjustment for acceptance of responsibility.” U.S. v. Schuman, 127 F.3d 815 (9th Cir. 1997).
9th Circuit denies credit where defendant pled to only one count and denied involvement. (490) The district court denied credit for acceptance of responsibility because defendant (1) pled guilty only to only one count and proceeded to trial on the other two, (2) repudiated his post-arrest statement and denied the participation of his co-conspirators in his statement to the probation officer, and (3) claimed that his confession was fabricated to the extent it described the roles of the other participants. The Ninth Circuit upheld the denial of the reduction, noting that defendant disputed his involvement in the conspiracy, and this was inconsistent with acceptance of responsibility. U.S. v. Avila, 95 F.3d 887 (9th Cir. 1996).
9th Circuit reverses denial of credit for acceptance of responsibility after guilty plea. (490) A defendant who pleads guilty is not entitled to a reduction for acceptance of responsibility “as a matter of right” and the district court’s denial of credit is reviewed for “clear error.” Application Note 3 to U.S.S.G. §3E1.1 says the following constitute “significant evidence” of acceptance of responsibility: (1) plea of guilty before trial; (2) truthful admission of the elements of the offense; and (3) truthful admission, or at least no false denial, of “relevant conduct.” Thus the 9th Circuit held that these three pieces of evidence now have “significant” probative value for purposes of establishing “acceptance of responsibility,” and “insignificant evidence cannot outweigh a plea of guilty before trial, truthful admission of the elements of the offense and absence of a false denial of technically relevant conduct.” The court emphasized that a “defendant need not make a deal, need not engage in histrionic display, to get the reduction for pleading guilty.” Focusing on the “objectively ascertainable evidence,” the court ordered the district judge to grant defendant the three level credit for acceptance of responsibility on remand. U.S. v. Vance, 62 F.3d 1152 (9th Cir. 1995).
9th Circuit says defendant who went to trial did not accept responsibility. (490) Defendant argued he was entitled to a two level adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. The Ninth Circuit ruled that the district court did not clearly err in finding that defendant did not demonstrate that his was a “rare situation[] . . . [in which] a defendant goes to trial to assert and preserve issues that do not relate to factual guilt.” § 3E1.1, comment. (n.2). U.S. v. Collins, 61 F.3d 1379 (9th Cir. 1995).
9th Circuit holds immediate plea to superseding information does not justify reduction for acceptance of responsibility. (490) The Ninth Circuit held that pleading to a reduced charge does not necessarily demonstrate an acceptance of responsibility. “It is at least equally possible that the defendant made a clever bargain.” Here the defendant never expressed remorse for his conduct. Accordingly, the district court properly denied defendant an offense level reduction for acceptance of responsibility. U.S. v. Rosales, 917 F.2d 1220 (9th Cir. 1990).
9th Circuit affirms denial of acceptance-of-responsibility reduction where defendant pled guilty but told conflicting stories. (490) Despite defendant’s guilty plea, the sentencing judge denied a reduction for acceptance of responsibility. Judges O’Scannlain, Nelson, and Norris affirmed, finding the denial was not “without foundation.” Though defendant argued that his statements to FBI agents had provided them with enough information to arrest other participants in defendant’s robbery, the court noted that defendant had told substantially different versions of the facts to the FBI and the probation officer, ultimately attempting to deny knowledge that his cohorts were carrying a gun and claiming that he was coerced into committing the offense. Following circuit precedent, the court also found that the acceptance-of-responsibility provision does not violate the right against self-incrimination. U.S. v. Smith, 905 F.2d 1296 (9th Cir. 1990), superseded on other grounds by guideline as stated in U.S. v. Lavender, 224 F.3d 939 (9th Cir. 2000).
10th Circuit denies acceptance reduction where defendant raised insanity defense. (490) Defendant planted a bomb near a gas pipeline and then voluntarily turned himself in to authorities and confessed. He pleaded not guilty and presented a defense to the jury based on his mental illness. The jury nonetheless convicted him. The Tenth Circuit upheld the district court’s denial of an acceptance of responsibility reduction. Defendant was not entitled to relief under U.S. v. Gauvin, 173 F.3d 798 (10th Cir.1999), a case in which the district court granted the reduction to a defendant who went to trial after committing an assault while intoxicated. Gauvin allows an adjustment only where a defendant disputed whether his state of mind met the legal criteria of intent. It does not apply where the defendant has challenged the factual element of intent. Here, the defense’s theory was that he was in a profoundly delusional state at the time of the offense; the government, however, maintained that defendant was not delusional or psychotic at the time he created the bomb and placed it near the gas pipeline. As such, the parties were not in agreement regarding the fact of defendant’s mental condition at the time he made and placed the bomb. U.S. v. Herriman, 739 F.3d 1250 (10th Cir. 2014).
10th Circuit affirms despite court’s incorrect statement about acceptance reduction. (490) Defendant pled guilty to one drug count, but refused to plead guilty to a related conspiracy count, and was convicted after a trial. He objected to his PSR, which did not provide him with an acceptance of responsibility reduction. He argued that, in spite of his having gone to trial on the conspiracy charge, the court could exercise its discretion to grant him a § 3E1.1 reduction. The district court denied the reduction, and defendant argued on appeal that the district court erred when it allegedly determined, contrary to the guidelines commentary, that a § 3E1.1 reduction is never available to a defendant who decides to go to trial. The Tenth Circuit concluded that any error was harmless, because the § 3E1.1 reduction was categorically unavailable to defendant, who never accepted responsibility by admitting the fact of a conspiratorial agreement, and who put the government to its burden of proof at trial on that factual element of guilt. This case did not present one of those “rare situations” where the § 3E1.1 reduction remains available after a trial. Defendant never showed “recognition and affirmative acceptance,” for all of the criminal conduct of which he was accused. U.S. v. Alvarez, 731 F.3d 1101 (10th Cir. 2013).
10th Circuit denies acceptance reduction to defendant who put government to its burden of proof at trial. (490) Defendant was convicted of child pornography charges. He argued that the district court erred in denying him credit for acceptance of responsibility because he went to trial only to test legal theories and did not deny that he possessed the child pornography. The Tenth Circuit upheld the denial of the reduction. The district court explained that defendant “contested many aspect[s] of the government’s case and did not agree or stipulate to evidence before or during the trial.” As a result, the government was forced to “present hundreds of graphic child pornography images and videos. Further, the government was required to call witnesses that resulted in a substantial cost for related expenses.” Although defendant admitted to law enforcement that he possessed child pornography, he nevertheless put the government to its burden of proof at trial. Note 2 to § 3E1.1. U.S. v. Benoit,713 F.3d 1 (10th Cir. 2013).
10th Circuit says admission of guilt at trial was not sufficient for acceptance reduction. (490) Defendant claimed he was entitled to a two-level acceptance of responsibility reduction, noting that his lawyer, in his opening statement at defendant’s trial, admitted his client’s guilt with respect to the possession counts with which he was charged and ultimately convicted. The judge refused to award the sentencing reduction, explaining that this was not an actual acceptance of responsibility, but rather a “strategic decision by the defense” aimed to preserve a chance of acquittal. The Tenth Circuit upheld the denial of the reduction. The only basis defendant offered for the reduction was his attorney’s statement at trial. However, an admission of guilt at trial does not suffice to earn the acceptance reduction. U.S. v. Hutchinson, 573 F.3d 1011 (10th Cir. 2009).
10th Circuit rejects reduction for defendant who admitted only some offenses of conviction. (490) Defendant was convicted of two counts of rape and two counts of assault for brutally attacking his girlfriend. He argued that he was entitled to an acceptance of responsibility reduction because he attempted to plead guilty to the assaults, but not the rapes. The Tenth Circuit held that defendant was not entitled to the reduction, because he consistently denied the basic facts of the charged crime. He not only refused to plead guilty to the rapes, the gravest charges for which he was sentenced, but affirmatively denied them. At sentencing, he continued to insist that he had not raped the victim. Moreover, even if defendant did accept responsibility for the assaults (which was contrary to the district court’s findings), and even if he could claim the adjustment for some charges in a group and not others (which the court has never held was proper), defendant’s sentence would be unaltered by an adjustment applied only to the assaults. When counts are grouped together, the highest offense level is the one relevant to the defendant’s ultimate sentence. The offense level for the more serious assault was already 13 levels below that for the rapes, and two more levels would make no difference to his overall offense level. U.S. v. Martin, 528 F.3d 746 (10th Cir. 2008).
10th Circuit denies acceptance reduction to defendant who denied intent to commit murder. (490) Defendant’s 15-year-old girlfriend gave birth to their son, and then slit the baby’s throat with a knife. The girlfriend pled guilty to first-degree murder, and defendant was convicted of second-degree murder. At trial, he admitted bringing the murder weapon to his girlfriend, that he was present as she killed the baby, and that he cleaned up afterwards and disposed of his son’s body. However, he denied that he had the intent to kill his son required for a murder conviction. The district court granted defendant a reduction for acceptance of responsibility despite the government’s objection that defendant had denied the element of malice aforethought at trial. The Tenth Circuit reversed, holding that defendant’s denial of intent made him ineligible for the § 3E1.1 reduction. Acceptance of responsibility adjustments after trial are very rare. Defendant did not fit the narrow exception to the general rule that defendants who put the government to its burden of proof at trial are ineligible for the § 3E1.1 reduction. U.S. v. Tom, 494 F.3d 1277 (10th Cir. 2007).
10th Circuit holds that defendant was not similarly situated to defendants who accepted responsibility for all counts. (490) Defendant was charged with illegal reentry after conviction of an aggravated felony, making a false citizenship claim, and assaulting a federal officer. He went to trial on all three counts, but at trial, he conceded most of the facts necessary to prove the first two counts. Because defendant contested the third count, the district court denied him an acceptance of responsibility reduction. Defendant did not contest the guideline calculation, claiming only that his sentence violated the mandate in 18 U.S.C. § 3553(a)(6) that the court avoid “unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” The Tenth Circuit ruled that defendant was not similarly situated to a defendant who has received an acceptance of responsibility reduction, and thus his sentence did not violate § 3553(a)(6). First, it was not clear that defendant admitted sufficient facts necessary to accept responsibility for the first two counts, since he never admitted that his deportation followed an aggravated felony. Moreover, defendant did not accept responsibility for the third count. This made it reasonable to differentiate his sentence from that of a defendant who had accepted responsibility for all counts. The district court’s refusal to vary from the advisory guideline range was reasonable. U.S. v. Aguayo-Gonzalez, 472 F.3d 809 (10th Cir. 2007).
10th Circuit reverses acceptance reduction for committing perjury at suppression hearing and denying guilt at trial. (490) The government challenged the court’s granting defendant a reduction for acceptance of responsibility since (1) defendant obstructed justice through perjury at his suppression hearing, and (2) went to trial and denied his factual guilt. The Tenth Circuit agreed that he was not entitled to the reduction. In determining whether a case is “extraordinary” so as to merit a § 3E1.1 acceptance reduction and a § 3C1.1 obstruction increase, the sentencing court must consider the totality of the circumstances, including whether the obstruction was an isolated incident or an ongoing, systematic effort to obstruct the prosecution. Defendant’s attempt to suppress the evidence by perjuring himself at the suppression hearing was part of a systematic, non-aberrational, and voluntary plan to avoid responsibility. His decision to put the government to its burden of proof at trial also undermined the court’s conclusion that he accepted responsibility for his conduct. U.S. v. Salazar-Samaniega, 361 F.3d 1271 (10th Cir. 2004).
10th Circuit denies acceptance reduction where defendant contested element of offense. (490) Defendant was convicted of violating the Archaeological Resources Protection Act (ARPA), 16 U.S.C. §§ 470aa et seq., and conspiring to violate ARPA, pursuant to 18 U.S.C. § 371. Although he admitted to excavating for archaeological resources, he contested the government’s estimate of damages. He did not admit to digging the holes at the site, and testified that he caused little, if any, damage to the site or to the artifacts. Under the ARPA, the maximum sentence is increased if a defendant causes more than $500 in damages. Because the amount of damages can increase the statutory maximum penalty, it was an element of the crime that the government was forced to prove at trial. Therefore, the Tenth Circuit found that the district court did not err in denying defendant a reduction for acceptance of responsibility. Moreover, the district court found that defendant obstructed justice by testifying falsely at trial. U.S. v. Quarrell, 310 F.3d 664 (10th Cir. 2002).
10th Circuit denies acceptance reduction where intent defense not made in good faith. (490) Because defendant put the government to its burden of proof at trial, the question was whether this was one of the “rare situations” which a defendant may clearly demonstrate an acceptance of responsibility despite the fact that she went to trial. The Tenth Circuit found that this was not one of those cases. Defendant never admitted any culpability for her acts. At sentencing, she continued to deny any guilt for her. She argued that she did not know or have reasonable cause to believe that the pseudoephedrine would be used to make methamphetamine, which amounted to an argument that she lacked the requisite intent. There was substantial evidence that this defense was not asserted in good faith. Thus, this case was distinguishable from U.S. v. Gauvin, 173 F.3d 798 (10th Cir. 1999), where the defendant argued that his drunkenness rendered him incapable of forming the requisite mens rea. Although the jury disagreed with his argument, the judge found that his defense was made in good faith and gave the defendant an acceptance reduction. Granting the district court deference, a Tenth Circuit panel affirmed the reduction. Here, in contrast, defendant’s defense was not made in good faith, and the district court denied the reduction. U.S. v. Saffo, 227 F.3d 1260 (10th Cir. 2000).
10th Circuit denies acceptance reduction where defendant’s mens rea defense not made in good faith. (490) Defendant argued that he was entitled to an acceptance of responsibility reduction because he never denied the acts that he was charged with committing. He maintained that his mens rea challenge was a legal one, and that he should not be denied the reduction because of that challenge. Because defendant put the government to its burden of proof at trial, the question was whether this was one of the “rare situations” in which a defendant may clearly demonstrate an acceptance of responsibility despite the fact that he went to trial. The Tenth Circuit found that it was not. Although defendant did not deny that he committed the acts that occurred, he never admitted culpability for those acts. This case was distinguishable from U.S. v. Gauvin, 173 F.3d 798 (10th Cir. 1999), where the defendant made a good faith argument that his drunkenness rendered him incapable of forming the requisite mens rea. Here, the evidence did not indicate that defendant’s mens rea defense was made in good faith; rather it showed that defendant had the requisite mens rea. U.S. v. Day, 223 F.3d 1225 (10th Cir. 2000).
10th Circuit denies acceptance reduction where defendant claimed conduct was innocent. (490) Defendant contended that he deserved an acceptance of responsibility reduction because he proceeded to trial solely to preserve his legal argument that the conduct charged in the indictment did not violate the bank fraud statute. The Tenth Circuit found that defendant was not entitled to the reduction because he never admitted, prior to trial, all of the essential elements of the charged crimes. Although defendant admitted cashing the stolen check and making subsequent withdrawals, he attempted to argue that his conduct was innocent and without intent to defraud. He claimed that (1) he did not know the check was stolen, (2) any suspicions he had about the check were quashed when the bank cashed the check, (3) he was merely assisting co-conspirator Halladay in cashing the check, and (4) he thought Halladay was paying him part of the check proceeds in return for his assistance in cashing the check. U.S. v. Hill, 197 F.3d 436 (10th Cir. 1999).
10th Circuit upholds acceptance reduction to defendant who went to trial to challenge intent. (490) To avoid being apprehended by police while driving drunk, defendant swerved his truck left, forcing the officer to decelerate to avoid collision. When another officer tried to get beside defendant, defendant veered into the lane, thwarting the attempt. In one of these attempts the vehicles collided and the officer’s car flipped into the ditch. At defendant’s trial for assault with a dangerous weapon and assault on a federal officer, defendant denied that he intended to use his car to hurt the officers. The Tenth Circuit upheld a two-level reduction for acceptance of responsibility, even though defendant put the government to its burden of proof a trial. Defendant admitted all of the charged conduct. He went to trial only to contest whether his acknowledged factual state of mind met the legal criteria of intent to harm. Although a jury disagreed with defendant’s defense that he lacked the requisite intent to commit the crime, that did not undermine the good faith in which the defense was asserted. U.S. v. Gauvin, 173 F.3d 798 (10th Cir. 1999).
10th Circuit reverses acceptance of responsibility reduction for post-trial remorse. (490) Defendant was convicted of drug charges. The district court found she deserved an acceptance of responsibility reduction based on her post-trial written statement and her testimony at the sentencing hearing. The Tenth Circuit reversed. Forcing the government to prove its case at trial and then expressing remorse is not a timely acceptance of responsibility. Although choosing to proceed to trial does not automatically preclude a § 3E1.1 reduction, a determination that a defendant has accepted responsibility should be based primarily upon pre-trial statements and conduct. The court here relied solely on statements defendant made after trial. U.S. v. Gallegos, 129 F.3d 1140 (10th Cir. 1997).
10th Circuit denies acceptance credit where defendant went to trial to test government’s evidence. (490) Defendant was convicted of three counts of uttering forged checks and three counts of money laundering. She argued that she was entitled to an acceptance of responsibility reduction. The Tenth Circuit affirmed the denial of the § 3E1.1 reduction because defendant did not go to trial in order to preserve a legal issue, but to test the government’s evidence. The thrust of her argument at trial was to challenge the conduct and activities of government witnesses. U.S. v. Allen, 129 F.3d 1159 (10th Cir. 1997).
10th Circuit holds that good faith defense demonstrated lack of acceptance of responsibility. (490) Defendant was convicted by a jury of being a felon in knowing possession of a firearm. He attempted to argue at trial that he did not “knowingly” possess the firearm because he mistakenly believed that a broken shotgun is not a statutory firearm. The Tenth Circuit affirmed the denial of an acceptance of responsibility reduction. A defendant who goes to trial to preserve issues that do not relate to factual guilt may still receive the § 3E1.1 reduction. However, defendant did not challenge the constitutionality of the statute or the applicability of the statute to his conduct. His good faith defense demonstrated that he did not accept responsibility for his conduct. U.S. v. Reed, 114 F.3d 1053 (10th Cir. 1997).
10th Circuit denies § 3E1.1 where admitted bank robber contested intimidation element. (490) A jury convicted defendant of bank robbery by intimidation. He argued that he was entitled to an acceptance of responsibility reduction because he confessed to the bank robbery and went to trial only to contest the element of intimidation. The Tenth Circuit affirmed the denial of the § 3E1.1 reduction, because defendant denied his factual guilt for the charged offense by denying intimidation. Defendant put the government to its burden of proof by denying an essential element of the crime. U.S. v. Mitchell, 113 F.3d 1528 (10th Cir. 1997).
10th Circuit reverses acceptance reduction where defendant contested guilt from beginning. (490) Defendant was convicted by a jury of submitting false claims to Medicare, Medicaid, and CHAMPUS. At sentencing, the district court found that defendant did not accept responsibility in his statement to the probation officer, but gave him the opportunity to revise the statement. After a recess, defendant stated to the court “The jury has found me guilty and I accept the jury’s findings and therefore I am remorseful and I will accept the responsibility.” The Tenth Circuit ruled that a § 3E1.1 reduction under these circumstances was clear error. Defendant contested his guilt from the beginning by denying he had the requisite intent to commit the charged crimes. In addition, his initial statement of acceptance of responsibility was so inadequate that the court decided to allow defendant to devise a more suitable statement before imposing sentencing. This was hardly the sort of “rare situation” where a defendant convicted by a jury deserved the § 3E1.1 reduction. U.S. v. Jaramillo, 98 F.3d 521 (10th Cir. 1996).
10th Circuit denies reduction for raising religious freedom defense to marijuana charges. (490) Defendant was convicted by a jury of conspiracy to possess with intent to distribute marijuana. In a pretrial hearing, defendant attempted to raise a religious freedom defense, claiming that his religion commanded him to use, possess, grow and distribute marijuana for the good of mankind and the planet earth. The Tenth Circuit denied him a § 3E1.1 reduction, finding this was not a rare situation in which a defendant who went to trial demonstrated acceptance of responsibility. Although defendant admitted he used marijuana and distributed it to others as part of the Church of Marijuana, he specifically denied distributing marijuana to another conspirator and he refused to answer other questions relating to the charges in the indictment. He also testified that he actively tried to discourage the co-conspirator from trafficking in marijuana. U.S. v. Meyers, 95 F.3d 1475 (10th Cir. 1996).
10th Circuit says defendant did not accept responsibility by not controverting government at trial. (490) Defendant argued that the district court erroneously denied him an acceptance of responsibility reduction simply because he went to trial. The Tenth Circuit held that defendant did not clearly demonstrate acceptance of responsibility; he cannot do this by simply declining to controvert the government’s evidence at trial. Defendant’s admission that he had purchased cocaine from different individuals and sold it to “smokers” in the area was, at most, a partial and equivocal acceptance of responsibility, and did not provide a basis for the reduction. U.S. v. Ivy, 83 F.3d 1266 (10th Cir. 1996).
10th Circuit denies reduction to defendant who conceded some facts, denied others, and denied crimes charged. (490) Defendant argued that he was entitled to an acceptance of responsibility reduction because he admitted certain aspects of the crimes alleged. The Tenth Circuit disagreed, since defendant did not admit to committing the crimes. Defendant put the government to its burden of proof by denying an essential element of equity skimming. Conceding some facts, denying others, and denying commission of the crimes charged is not acceptance of responsibility. U.S. v. Nelson, 54 F.3d 1540 (10th Cir. 1995).
10th Circuit approves denial of acceptance reduction even though court rejected plea agreement. (490) Defendant’s plea agreement provided that in exchange for dropping certain charges, he would plead guilty to others. The district court rejected the agreement, stating it would only accept a plea to the indictment. Defendant declined, went to trial, and was convicted. He argued that because he was willing to plead guilty, he accepted responsibility. The Tenth Circuit disagreed, noting that defendant was not willing to plead to the indictment, nor did he choose to plead to some of the counts in the absence of a plea agreement. In addition, defendant did not confess or admit his guilt before his conviction. U.S. v. Robertson, 45 F.3d 1423 (10th Cir. 1995).
10th Circuit upholds judge’s refusal to accept guilty plea. (490) Defendant argued that she accepted responsibility at her change of plea hearing but that the judge mistakenly rejected her guilty plea. The Tenth Circuit disagreed, finding defendant’s statements at the hearing were equivocal and did not constitute an admission of all the elements of the offense. The district court concluded that defendant failed to admit knowledge that the money she laundered constituted proceeds from an unlawful activity. Defendant also denied knowing anything about transaction reporting requirements. U.S. v. Young, 45 F.3d 1405 (10th Cir. 1995).
10th Circuit denies reduction where defendant made pretrial confession but also went to trial. (490) Defendant unlawfully reentered the country after deportation. Upon his arrest, defendant cooperated with the INS, admitted his true name and confessed that he was in the country illegally. Nevertheless, he pled not guilty and went to trial. He did not testify and did not try to retract his confession, but required the government to prove his factual guilt. The 10th Circuit upheld the denial of a reduction for acceptance of responsibility. The fact that defendant did not actively assert his innocence was not relevant. Pleading not guilty and requiring the government to prove guilt at trial demonstrates denial of responsibility, regardless of how easily the government could prove guilt. A court may deny a defendant the reduction based on a decision to go to trial. Denying the reduction is not a penalty for exercising a right. The reduction is simply a reward for those who take full responsibility. U.S. v. Portillo-Valenzuela, 20 F.3d 393 (10th Cir. 1994).
10th Circuit refuses reduction where defendant pled guilty to only three counts of multi-count indictment. (490) Defendant contended it was unfair for his co-defendant to receive a reduction for acceptance of responsibility when he was denied such a reduction, given their respective pleas. The 10th Circuit upheld the denial, since defendant only pled guilty to three counts of a multi-count indictment. Only in rare situations may a defendant clearly demonstrate an acceptance of responsibility even though he exercises his right to a trial. Moreover, a guilty plea does not automatically entitle a defendant to an acceptance of responsibility reduction. U.S. v. Dahlman, 13 F.3d 1391 (10th Cir. 1993).
10th Circuit denies reduction to defendant who forced government to go to trial on all three counts. (490) The 10th Circuit found that defendant’s request for an acceptance of responsibility reduction was properly rejected. He forced the government to go to trial on all three counts, not just the one on which he was acquitted. Although he admitted his role in one transaction, he continued to deny his role in the conspiracy, even after his conviction. U.S. v. Johnson, 12 F.3d 1540 (10th Cir. 1993).
10th Circuit denies acceptance credit where defendant went to trial on all counts. (490) Defendant contended that he was entitled to a reduction for acceptance of responsibility because, although he went to trial, he gave a full statement to police after his arrest and only went to trial to contest the one charge for which he was acquitted. The 10th Circuit affirmed the denial of the reduction, since defendant forced the government to go to trial on all three counts, not just the count upon which he was acquitted. He denied his involvement in a conspiracy to distribute 100 pounds of marijuana, as alleged in one of the counts for which he was convicted. U.S. v. Garcia, 987 F.2d 1459 (10th Cir. 1993).
10th Circuit denies credit for acceptance of responsibility despite stipulation. (490) Defendant contended that he was entitled to an acceptance of responsibility reduction because he pled guilty and the parties stipulated to the adjustment. The 10th Circuit rejected this argument. First, this type of stipulation did not bind the sentencing court. Second, defendant bore the burden of proving by a preponderance of the evidence that he was entitled the reduction. Defendant never made a statement accepting criminal responsibility. His guilty plea, without more, did not automatically entitle him to the reduction. U.S. v. Hernandez, 967 F.2d 456 (10th Cir. 1992).
10th Circuit affirms denial of acceptance of responsibility reduction to defendant who pled no contest. (490) The 10th Circuit affirmed the district court’s denial of a reduction for acceptance of responsibility to a defendant who pled no contest to charges of sexually abusing a 10-year old child. The district court did not rely solely upon defendant’s no contest plea. The probation officer reported that defendant had been somewhat evasive in his interview with her, and in his initial meeting with the FBI, had denied any wrongdoing. In petitioning the court to accept his plea of no contest, defendant was primarily concerned with defending against a possible civil suit in which an outright guilty plea would possible constitute prima facie evidence of civil liability. U.S. v. Ward, 957 F.2d 737 (10th Cir. 1992).
10th Circuit rejects argument that defendant who admitted conduct by presenting insanity defense accepted responsibility. (490) Defendant argued that he was entitled to a two-level downward adjustment for acceptance of responsibility because he had, in effect, admitted his conduct by presenting an insanity defense at trial. The 10th Circuit rejected this argument because the admission of an offense cannot be equated with acceptance of responsibility: “Factual admissions implicit in some affirmative defenses . . . are not alone indicative of the contrition necessary under § 3E1.1 for acceptance of responsibility.” Defendant did not acknowledge responsibility, or even the commission of the offense to his probation officer, and therefore the district court’s decision was not clearly erroneous. U.S. v. Spedalieri, 910 F.2d 707 (10th Cir. 1990).
11th Circuit reverses acceptance reduction for defendant who denied factual guilt at trial. (490) The government argued that the district court erred by awarding defendant a two-level reduction for acceptance of responsibility, and the Eleventh Circuit agreed. Defendant initially admitted he was guilty, but withdrew his plea and, despite overwhelming evidence to the contrary, insisted at trial and at sentencing that he was factually innocent. 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 guilt, and is convicted. The court clearly erred by awarding defendant a reduction for acceptance of responsibility. U.S. v. Williams, 627 F.3d 839 (11th Cir. 2010).
11th Circuit remands for reconsideration of acceptance issue. (490) Defendant was convicted of one count of possession of MDMA (ecstasy) with intent to distribute. He argued that the district court improperly denied him a three-point reduction for acceptance of responsibility. The Eleventh Circuit agreed this was an unusual case, and remanded. Defendant confessed to the factual elements of the crime of conviction during a December 2001 meeting with a police investigator, and several months before he was indicted. After his initial and lengthy confession, defendant proceeded to cooperate with the government to provide information as to his co-defendants. Defendant’s original PSR recommended that defendant receive an acceptance reduction. After multiple superseding indictments, defendant offered to plead guilty to the sole count of which he was ultimately convicted – possession of MDMA. Defendant declined to plead guilty to the full indictment, and was vindicated when the judge directed a verdict in his favor on eight of the counts, and the jury acquitted him on the remaining other count. Significantly, defendant did not take the stand in his defense, and never denied having possessed the ecstasy. U.S. v. Barner, 572 F.3d 1239 (11th Cir. 2009).
11th Circuit says defendant who contested whether pipe bombs were destructive devices was not entitled to acceptance reduction. (490) Defendant was convicted of charges related to the making and possession of unregistered destructive devices. He argued that he was entitled to a three-level acceptance of responsibility reduction because he challenged only the constitutionality of the National Firearms Act, not the factual elements of his offense. The Eleventh Circuit held that defendant was not entitled to the reduction because, in addition to his challenge to the constitutionality of the Firearms Act, he contested that the pipe bombs were destructive devices. While a conviction by trial does not automatically preclude a defendant from receiving the acceptance reduction, 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 is not entitled to a reduction. U.S. v. Spoerke, 568 F.3d 1236 (11th Cir. 2009).
11th Circuit holds that defendant who withdrew guilty plea was not entitled to acceptance reduction. (490) Defendant accepted responsibility for his actions in connection with his guilty plea. However, when he learned that a prior conviction could subject him to career offender statute, he withdrew his plea. Defendant did not accept responsibility for his actions at any time thereafter, and was found guilty after a jury trial. The Eleventh Circuit found that defendant was not entitled to an acceptance of responsibility reduction. Although he appeared to accept responsibility by offering a plea of guilty, he withdrew the plea, and thereafter steadfastly failed to accept responsibility further. He then put the government to its proof and consistently attempted to minimize his role, despite videotaped evidence to the contrary. U.S. v. Rubio, 317 F.3d 1240 (11th Cir. 2003).
11th Circuit upholds denial of acceptance reduction to defendant who presented insanity defense. (490) Defendant argued that his plea of insanity did not automatically preclude him from receiving an acceptance of responsibility reduction, and that by notifying the government and the court prior to trial of his intent to assert this defense, he had accepted responsibility for his crime. However, defendant at least implicitly called into question his involvement in the carjacking by cross-examining a number of witnesses at trial concerning their identification of him. Also, defendant only presented the insanity defense to the jury after the government had completed its case. The Eleventh Circuit upheld the district court’s refusal to grant defendant the reduction. Putting the government to its burden of proof at trial is a factor that may be considered by the sentencing judge. Further, in such a case, “a determination that a defendant has accepted responsibility will be based on primarily pre-trial statements and conduct.” The district court found “none of that here.” U.S. v. Frank, 247 F.3d 1257 (11th Cir. 2001).
11th Circuit defers to trial judge’s decision to deny acceptance reduction. (490) Defendant claimed he deserved an acceptance reduction, pointing to several cases saying that going to trial and being convicted does not per se preclude a defendant from receiving the reduction. The Eleventh Circuit agreed that trial courts have discretion to determine whether the reduction is appropriate. However, one of the factors a judge may consider is whether the defendant went to trial. Here, the judge correctly exercised his discretion when he chose not to award defendant the reduction. The judge presided over trial, was familiar with defendant’s position during trial, and could evaluate the sincerity of defendant’s acceptance of responsibility. U.S. v. Thayer, 204 F.3d 1352 (11th Cir. 2000).
11th Circuit finds court erroneously believed it had no authority to make acceptance reduction. (490) At sentencing, after defendant assumed responsibility for his criminal conduct and his attorney requested a § 3E1.1 acceptance of responsibility reduction, the district judge stated: “I don’t know of any law that would allow me to be more lenient on you than I am.” The Eleventh Circuit remanded because the district court erroneously determined that it did not have the authority to make an acceptance of responsibility reduction. Note 2 to § 3E1.1 clearly states that conviction by trial does not preclude a judge from granting this reduction, although the exceptions are limited and may not apply in defendant’s case. U.S. v. Wilson, 183 F.3d 1291 (11th Cir. 1999).
11th Circuit rejects acceptance reduction where defendant denied intent to violate statute. (490) Defendant was convicted under the anti-kickback provisions of the Social Security Act of paying “referral fees” to employees of the state health services agency for referring pregnant drug addicts to his company. He argued that he was entitled to an acceptance of responsibility reduction because he admitted all the relevant facts and cooperated with the government’s investigation, while preserving his legitimate legal position regarding the applicability of the statute to his conduct. The Eleventh Circuit held that defendant was not entitled to the reduction because he denied his intent to violate the statute. Although defendant conceded at trial that he made the payments, he denied having had an intent to induce referrals, an essential element of the charges on which he was convicted. Defendant’s arguments amounted to a factual denial of guilt and were therefore inconsistent with acceptance of responsibility. U.S. v. Starks, 157 F.3d 833 (11th Cir. 1998).
11th Circuit denies § 3E1.1 reduction to defendant who moved to withdraw guilty plea. (490) The PSR originally recommended that defendant receive an acceptance of responsibility reduction. However, defendant filed a motion to withdraw his guilty plea, and at the plea withdrawal hearing, as well as the sentencing hearing, defendant protested his innocence and lack of involvement in the offense. The district court found that defendant’s post‑plea denials of guilt showed that defendant did not accept responsibility. The Eleventh Circuit affirmed the denial of the reduction. Although the act of moving to withdraw a guilty plea may not automatically preclude a § 3E1.1 reduction, the district court also weighed defendant’s inconsistent testimony before concluding that he had not clearly demonstrated acceptance of responsibility. U.S. v. McCarty, 99 F.3d 383 (11th Cir. 1996).
11th Circuit denies reduction where defendant challenged admissibility of evidence. (490) Defendant and an associate were arrested after they passed counterfeit bills at a nightclub. Defendant argued that he accepted responsibility because, even though he challenged the admissibility of the evidence, he did not deny actual guilt, and saved the court time by offering a conditional plea, waiving his right to a jury trial, and stipulating to facts based on transcripts of the motion hearing. The Eleventh Circuit upheld the denial of a § 3E1.1 reduction. The evidence defendant sought to exclude was sufficient and perhaps necessary to support his conviction. By challenging it, defendant attempted to avoid a determination of his factual guilt. Moreover, the court conducted hearings on defendants’ motions to suppress for four days. Defendant never pled guilty and required the court to expend additional resources conducting a bench trial. The denial of the reduction did not punish defendant for exercising a constitutional right. U.S. v. Gonzalez, 70 F.3d 1236 (11th Cir. 1995).
11th Circuit rejects ex post facto claim where amendment merely adopted prior interpretations. (490) Effective November 1990, note 2 to § 3E1.1 was amended to provide that the acceptance of responsibility reduction was not intended to apply to a defendant who puts the government to the burden of proof at trial. Defendant argued that it violated the ex post facto clause to apply this amendment to him. The 11th Circuit found no ex post facto violation, since the commentary was consistent with the circuit’s earlier interpretation of § 3E1.1. This was in accord with previous cases holding that entry of a not guilty plea and insistence upon a trial are factors that may be considered in determining whether a defendant has accepted responsibility for his crime. U.S. v. Diaz, 26 F.3d 1533 (11th Cir. 1994).
11th Circuit rejects acceptance of responsibility reduction for defendant who pled guilty. (490) The 11th Circuit found no error in the district court’s denial of defendant’s contention that he had accepted responsibility by pleading guilty and cooperating with authorities. Defendant refused to acknowledge his full participation to the probation officer, made false statements to the investigating agent, declined to inform authorities of the methamphetamine lab in his attic, and continued his criminal activity after his arrest through communications to his common-law wife. U.S. v. Query, 928 F.2d 383 (11th Cir. 1991).
11th Circuit upholds finding of no acceptance of responsibility where defendant entered an Alford plea. (490) In North Carolina v. Alford, 400 U.S. 25 (1970) the Supreme Court authorized the acceptance of a guilty plea even when a defendant maintains that he is innocent. Here the defendant entered an Alford plea to money laundering, arguing that he did not realize that multiple deposits violated federal law. The defendant argued that the district court erroneously believed it could not give him credit for acceptance of responsibility after an Alford plea. The 11th Circuit disagreed, finding that the judge did not impose a per se rule, and holding that “logically the qualifications a defendant states in his guilty plea may be evidence that he has not fully recognized and accepted personal responsibility for the crime.” U.S. v. Rodriguez, 905 F.2d 372 (11th Cir. 1990).
11th Circuit holds confession and guilty plea did not automatically warrant reduction for acceptance of responsibility. (490) Defendant claimed that his confession and guilty plea and agreement to consent to warrantless searches adequately demonstrated his acceptance of responsibility under § 3E1.1. The 11th Circuit disagreed. The panel held that acceptance of responsibility was a factual determination, subject to review under the clearly erroneous standard. The trial court is “in a unique position to evaluate a defendant’s acceptance of responsibility.” The district court found that the defendant had not clearly demonstrated his acceptance of responsibility. Rather he pled guilty and agreed to subject himself to searches only to avoid a lengthy term of incarceration. Moreover, he was not fully forthcoming about his prior criminal history. U.S. v. Spraggins, 868 F.2d 1541 (11th Cir. 1989).
D.C. Circuit denies acceptance reduction for persisting in entrapment claim. (490) Defendant was caught selling heroin to undercover DEA agents. He was convicted by a jury of drug and firearms counts. His defense to the drug counts was entrapment. The D.C. Circuit held that he was properly denied a reduction for acceptance of responsibility. The district court did not improperly view his assertion of an entrapment defense as an absolute bar to the reduction, but merely pointed out that defendant persisted in his entrapment claim from trial through sentencing. Defendant did not offer one word of remorse or culpability or human error. He did not apologize or exhibit any shame. Although he admitted selling the heroin, he insisted that the government made him do it. There is a difference between admitting the acts and accepting responsibility for the crimes. U.S. v. Thomas, 97 F.3d 1499 (D.C. Cir. 1996).
D.C. Circuit says court properly considered entrapment argument in denying reduction. (490) The PSR recommended against an acceptance of responsibility reduction under § 3E1.1 because defendant elected not to discuss the offense with the probation office. Defendant argued that he deserved the reduction because he never disputed his complicity in the drug transaction but instead claimed entrapment. The D.C. Circuit held that the district court properly used defendant’s entrapment argument to find he had not accepted responsibility. U.S. v. Fleener, 900 F.2d 914 (6th Cir. 1990) does not stand for the proposition that all defendants who go to trial and assert entrapment are entitled to receive the § 3E1.1 reduction. Rather, it holds that such a reduction is not per se unavailable. A defendant must still manifest in some way that he has acknowledged the wrongfulness of his conduct. Here, the court properly used the entrapment argument to find defendant had not accepted responsibility. Moreover, it found that defendant was not telling the truth when he testified at sentencing that he was merely “puffing” about quantities under negotiation. U.S. v. Layeni, 90 F.3d 514 (D.C. Cir. 1996).
D.C. Circuit denies acceptance reduction for defendant who moved to withdraw guilty plea, claiming entrapment. (490) Defendant contended that the district court erred in refusing to decrease his offense level for acceptance of responsibility. The district court found that defendant’s motion to withdraw his guilty plea was “in and of itself a statement that [defendant] did not wish to let the guilty plea stand, and therefore, he didn’t wish to accept responsibility for this offense.” Defendant insisted that this was error because he wished only to assert an entrapment defense and continued to admit to his guilt and involvement in the instant offense. However, by simultaneously claiming that he accepted responsibility but that he was entrapped, defendant was “in effect claiming that he accepted responsibility even though he was not responsible.” The D.C. Circuit noted that while there may be a situation in which an entrapment defense is not logically inconsistent with a finding of defendant’s acceptance of responsibility, defendant did not automatically earn the acceptance reduction simply by claiming entrapment. The district court did not think defendant was telling the truth about his alleged entrapment defense, and made very specific findings about that. U.S. v. Berkeley, 567 F.3d 703 (D.C. Cir. 2009).
D.C. Circuit considers timeliness in deciding whether defendant qualifies for two-point reduction. (490) 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 credit for acceptance of responsibility despite willingness to plead guilty to misdemeanors. (490) Defendant was charged with various felony and misdemeanor drug counts, and was convicted by a jury of only one misdemeanor. He contended that he should have received an acceptance of responsibility reduction because he was willing to plead guilty to four misdemeanor drug possession counts before trial. The D.C. Circuit found that while this was relevant, it was not sufficient to justify the reduction. A defendant who enters a guilty plea is not entitled to a reduction as a matter of right. The district court had ample reason to conclude that defendant had not accepted personal responsibility. Defendant, the former Mayor of Washington, D.C., stated to the press that being a poor role model was not a crime, that the worst government witnesses could say was that he used cocaine, and that he had not robbed or shot anybody. Moreover, following his conviction, defendant denied to his probation officer that he committed the offense of conviction. U.S. v. Barry, 961 F.2d 260 (D.C. Cir. 1992).
Minnesota holds reduction for acceptance of responsibility was properly denied. (490) Defendant pled guilty to helping her husband escape from jail. She decided to plead guilty at her husband’s urging, rather than because she accepted responsibility for her actions. Accordingly, despite her guilty plea, the trial judge refused to reduce her guideline sentence by two levels for acceptance of responsibility. U.S. v. Dugan, 704 F.Supp. 175 (D. Minn. 1989).