§494 Acceptance of Responsibility: Other Post-Arrest Misconduct
First Circuit
Second Circuit
Third Circuit
Fourth Circuit
Fifth Circuit
Sixth Circuit
Seventh Circuit
Eighth Circuit
Ninth Circuit
Tenth Circuit
Eleventh Circuit
Miscellaneous
5th Circuit denies acceptance reduction where defendant violated pretrial release conditions. (494) Defendant pleaded guilty to trying to import drugs into the U.S. He was released on bail on condition not to drink alcohol excessively and to report any contact with law enforcement to Probation. Defendant failed to follow these conditions, and after conviction, the district court denied a reduction for acceptance of responsibility under § 3E1.1 because of the violation of his pretrial release conditions. On appeal, the Fifth Circuit affirmed, despite defendant’s argument that his bail violations were unrelated to his criminal conduct. U.S. v. Hinojosa-Almance, __ F.3d __ (5th Cir. Oct. 7, 2020) No. 19-50942.
7th Circuit says credit for acceptance of responsibility cannot be denied solely for frivolous legal argument. (494) Defendant pleaded guilty to unlawful possession of a firearm. At sentencing, he argued that it was improper for the presentence report to double-count his prior convictions both in his offense level and his criminal history. The district court found this argument “frivolous,” and on that basis, denied credit for acceptance of responsibility. The Seventh Circuit reversed, ruling that defendant had not disputed relevant conduct and had only made a legal argument. U.S. v. Robinson, __ F.3d __ (7th Cir. Nov. 7, 2019) No. 18-2295.
7th Circuit denies acceptance reduction for continued criminal activity on pretrial release. (494) The district court refused to grant defendant a reduction for acceptance of responsibility, finding that he continued to engage in criminal activity while on pretrial release for his 2013 offenses. Defendant did not challenge this finding on appeal, but instead argued that the judge wrongly thought that the conduct necessarily precluded an acceptance reduction. The Seventh Circuit disagreed. The judge expressly acknowledged that defendant’s guilty plea and admission of other relevant conduct weighed in favor of the downward adjustment. That was enough to satisfy the panel that she understood the law and considered factors both for and against an acceptance-of-responsibility reduction. Given how extensive defendant’s continued criminal activity was, the judge’s determination that it outweighed defendant’s cooperation was not clear error. U.S. v. Edwards, 836 F.3d 831 (7th Cir. 2016).
1st Circuit denies acceptance reduction for assault on corrections officer. (494) Defendant pled guilty to illegal possession of a firearm. Between indictment and sentencing for his federal offenses, defendant was in jail on unrelated state charges. During that imprisonment, defendant assaulted a corrections officer. The First Circuit upheld the denial of an acceptance of responsibility reduction based upon the assault. First, the assault was committed after defendant pled guilty to the federal charges. Second, the fact that the assault was unrelated to the crime of conviction did not matter. “[I]n determining the propriety vel non, of credit for acceptance-of-responsibility credit, [a district court] may consider a defendant’s commission of any post-indictment criminal conduct, whether or not it bears a significant connection to, or constitutes a significant continuation of, the offense of conviction.” U.S. v. Jordan, 549 F.3d 57, 60 (1st Cir. 2008). Finally, the assault was established by a preponderance of the evidence. The evidence included a report from the corrections officer whom defendant assaulted on that date. This report was enough to establish as not clearly wrong the district court’s finding that defendant precipitated and committed the assault. U.S. v. MacArthur, 805 F.3d 385 (1st Cir. 2015).
1st Circuit denies acceptance reduction even though post-indictment conduct was unrelated. (494) Defendant was indicted on drug trafficking charges. While on release, he was arrested for drunk driving and possessing a double-edged knife in his car. The First Circuit upheld the denial of an acceptance of responsibility reduction, rejecting defendant’s argument that there must be a “significant connection” between the indicted conduct and the post-indictment conduct. The requirement that a defendant voluntarily terminate or withdraw from criminal conduct, Note 1(b) to §3E1.1, extends to all criminal conduct, not merely to criminal conduct that is of the same type as, or even related to, the offense of conviction. The district court properly found that defendant’s drunk driving offense coupled with his self-interested lies about the extent of his imbibing (claiming he only had two drinks), showed that he had not accepted responsibility “in any authentic sense.” His decision to consume intoxicants, while troubling by itself, had “even more bite because he blamed his involvement in the drug-trafficking conspiracy on an escalating addiction to alcohol and drugs.” U.S. v. Jordan, 549 F.3d 57 (1st Cir. 2008).
1st Circuit denies acceptance reduction based on criminal activity that occurred on pretrial release. (494) In December, defendant was indicted for drug trafficking. In March, while on pretrial release, defendant was arrested for drunk driving. The next day, he was also arrested for possession of heroin. In April, he pled guilty to the December drug charges. At sentencing, the district court was concerned about his pretrial misbehavior, and refused to grant him an acceptance of responsibility reduction. Defendant argued that he accepted responsibility on the date he pled guilty, that he was fully compliant with the law from the date he pled guilty to the date he was sentenced, and that he should have received the § 3E1.1 reduction. The First Circuit held that the district court properly considered defendant’s criminal conduct while on pretrial release. When a defendant commits new offenses after having been charged, and those offenses reflect adversely on the sincerity of his remorse, the sentencing court may treat the commission of those offenses as an indication of a lack of acceptance of responsibility. The panel refuses to carve out an exception for pre-plea offenses. While a court cannot go back limitlessly in time in assessing acceptance of responsibility, normally, it is the lodging of a federal charge that marks the commencement of the relevant time frame. U.S. v. McLaughlin, 378 F.3d 35 (1st Cir. 2004).
1st Circuit denies acceptance reduction based on defendant’s post-plea activities. (494) Defendant published newsletters offering financial advice to would-be investors. As the newsletters’ readership increased, defendant used them as a platform to market investment contracts aimed at exploiting a computer program that he had developed. He pled guilty to selling unlicensed securities and mail fraud charges. After he pled guilty, the U.S. Attorney’s office learned that defendant was soliciting subscriptions for another financial newsletter by promising subscribers astronomical profits. The First Circuit affirmed the denial of an acceptance of responsibility reduction based on defendant’s post-plea activities. “[B]y continuing to couch offers of investment advice in pie-in-sky hyperbole, under circumstances that easily could gull potential subscribers into thinking that [defendant’s] hand would be on the tiller throughout the subscription period, [defendant] displayed a high degree of insensitivity to the root causes of his original problem. By the same token, these actions plainly revealed a lack of understanding of the basic fallacy inherent in the scheme that had put him in the dock.” The panel also ruled that the district court’s factual findings were adequate, refusing to require “elaborate factfinding” in support of a court’s denial of the acceptance reduction. U.S. v. Saxena, 229 F.3d 1 (1st Cir. 2000).
1st Circuit rejects § 3E1.1 reduction where defendant punched witness and smuggled drugs into prison. (494) Defendant argued that he was entitled to an acceptance of responsibility reduction because he pled guilty within months of his arrest and appeared before a grand jury on the government’s behalf. The First Circuit rejected the reduction since defendant had obstructed justice by punching a witness in retaliation for his cooperation, and had been involved in an attempt to smuggle drugs into prison. Defendant did not show how this was an extraordinary case warranting both an obstruction of justice enhancement and an acceptance of responsibility reduction. Although defendant claimed the smuggling incident was merely an addict trying to feed his habit, a court may consider a defendant’s post-offense conduct, including illegal drug activity, as evidence of the sincerity of his claimed remorse for the convicted offense. U.S. v. Lagasse, 87 F.3d 18 (1st Cir. 1996).
1st Circuit rejects reduction where defendant absconded while awaiting sentencing. (494) Notwithstanding defendant’s absconding while awaiting sentencing, and subsequent federal conviction, defendant frivolously asserted that the district court committed clear error by denying him a reduction for acceptance of responsibility. The 1st Circuit summarily rejected the claim. U.S. v. Fahm, 13 F.3d 447 (1st Cir. 1994).
1st Circuit denies credit for acceptance of responsibility based on defendant’s continued criminal behavior. (494) The 1st Circuit ruled that the district court did not base its denial of credit for acceptance of responsibility on uncharged conduct. The court stated that it thought defendant had not accepted responsibility for the present offense “or generally with respect to other legal requirements.” This remark made it clear that the court did not require defendant to accept responsibility for the uncharged conduct. Rather, it considered defendant’s later conduct as evidence that defendant did not accept responsibility for the instant offense. “The fact that a defendant engages in later, undesirable behavior does not necessarily prove that he is not sorry for an earlier offense; but it certainly could shed light on the sincerity of a defendant’s claims of remorse.” U.S. v. O’Neil, 936 F.2d 599 (1st Cir. 1991).
2nd Circuit rejects acceptance reduction for defendant who attempted to smuggle drugs into jail. (494) Although defendant pled guilty to his drug conspiracy charge in a timely fashion, he also attempted to smuggle drugs into a detention center after his plea but prior to his sentencing. The Second Circuit found such conduct inconsistent with accepting responsibility, and thus the district court had the discretion to deny defendant an acceptance of responsibility reduction. The fact that defendant only attempted, without success, to smuggle the drugs did not matter. Attempting to smuggle drugs into the detention center showed the same “lack of sincere remorse” as successfully smuggling drugs into the detention center. U.S. v. Chu, 714 F.3d 742 (2d Cir. 2013).
2nd Circuit denies acceptance reduction based on continuing criminal conduct after guilty plea. (494) Defendant pled guilty to charges relating to his actions as a broker for the issuance of false identification documents by corrupt employees of the Department of Motor Vehicles. Two months after his plea, defendant was seen in the parking lot of a Motor Vehicles Department office. Following the incident, he was given explicit instructions to stay away from the office without express authorization from the government. Nonetheless, he was subsequently observed in the vicinity of a different Department of Motor Vehicles office on at least more three occasions. The Second Circuit upheld the denial of an acceptance of responsibility reduction based on defendant’s post-plea visits to the Department of Motor Vehicle offices. Although defendant claimed that his presence at a Motor Vehicles office on one of the occasions was due to his employment as a livery driver, he did not explain why he was present at the office on the other occasions, including a visit after his cooperation agreement was terminated for just that sort of conduct. The strong inference to be drawn from defendant’s post-plea visits to the Motor Vehicle Department offices was that he was continuing to engage in the very criminal activity that led to the charges against him. Such post-plea conduct is inconsistent with acceptance of responsibility. U.S. v. Guzman, 282 F.3d 177 (2d Cir. 2002).
2nd Circuit denies acceptance reduction to defendant who continued drug use while on release. (494) While on release after his arraignment, defendant tested positive for cocaine and marijuana. After taking defendant’s guilty plea, the court released defendant on condition that he not illegally use drugs. Nonetheless, over the next month, defendant repeatedly tested positive for marijuana use. The district court gave defendant another chance when it denied the government’s motion to revoke defendant’s release. Less than two weeks later, the government filed a second motion to revoke defendant’s release based on continued drug use. The district court granted the motion and ordered defendant detained. A year later, the court released defendant pending sentencing. Defendant used marijuana while on release during that period as well. The Second Circuit held that the district court properly denied defendant an acceptance of responsibility reduction based on his continued drug use while on release. Although “[c]ontinued drug abuse may well signify addiction and dependence rather than lack of contrition,” U.S. v. Woods, 927 F.2d 735 (2d Cir. 1991), a sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. The court acted within its discretion in finding that defendant had “manipulated the system” and had failed to accept responsibility for his actions. U.S. v. Ortiz, 218 F.3d 107 (2d Cir. 2000).
2nd Circuit denies acceptance reduction for failing to pay promised restitution. (494) Defendant had available to him $80,000 from his pension and failed to give an adequate explanation for not making a promised $19,100 restitution payment. The Second Circuit held that the district court properly denied an acceptance of responsibility reduction based on defendant’s failure to pay restitution. The failure to pay restitution as promised can constitute a refusal to accept responsibility. U.S. v. Zichettello, 208 F.3d 72 (2d Cir. 2000).
2nd Circuit relies on both pre- and post-plea bad conduct to deny acceptance reduction. (494) Defendant claimed he accepted responsibility by timely pleading guilty, cooperating with the postal inspector and probation office, and seeking therapy for a mental disorder. The 2nd Circuit found that defendant’s actions both before and after he pled guilty justified the denial of the reduction. Before he pled guilty, defendant tried to dissuade one witness from appearing at his detention hearing. Two other victims testified that defendant induced them to invest in his scheme during this period. After defendant pled guilty, he still did not evidence an acceptance of responsibility. At a chance meeting with one victim, defendant showed no remorse. He also submitted tax forms containing falsehoods to several victims. Finally, at a meeting with counsel for several victims, defendant was only willing to sign a confession of judgment under unreasonable terms. U.S. v. Harris, 38 F.3d 95 (2nd Cir. 1994).
2nd Circuit upholds denial of acceptance of responsibility reduction for defendant who smuggled marijuana into prison. (494) The district court denied defendant a reduction for acceptance of responsibility because defendant had attempted to smuggle marijuana into prison while awaiting sentencing. Defendant contended that the small quantity suggested that he only intended the marijuana for personal use for his marijuana addiction, and that he should not be denied the reduction because of his drug abuse. The 2nd Circuit upheld the denial of the reduction, because the fact that a defendant commits a second crime after pleading guilty and while awaiting sentencing is a relevant consideration in denying the acceptance of responsibility reduction. U.S. v. Olvera, 954 F.2d 788 (2nd Cir. 1992).
2nd Circuit refuses acceptance of responsibility reduction due to defendant’s post-plea behavior. (494) The district court relied upon three factors in refusing to reduce defendant’s offense level for acceptance of responsibility. Defendant (a) tested for cocaine three times during the pre-sentence period after he pled guilty, (b) failed to report to the probation office weekly, and (c) was involved in a crime while on bail. Although continued drug use alone probably does not constitute a sufficient reason to deny such a reduction, the 2nd Circuit found that the totality of defendant’s post-plea behavior provided an adequate basis for the district court’s refusal to grant the reduction. Prior case law does not require a district court to ignore a defendant’ other crimes in considering a defendant’s acceptance of responsibility. “[C]ontinued involvement in criminal activity casts substantial doubt on the sincerity of a defendant’s protestations of contrition.” U.S. v. Woods, 927 F.2d 735 (2nd Cir. 1991).
3rd Circuit upholds denial of acceptance reduction despite prompt surrender and guilty plea. (494) Defendant pleaded guilty to interstate transportation to engage in sex with a minor, in violation of 18 U.S.C. § 2241(c). In the plea agreement, the government agreed to recommend a two-level decrease in offense level for acceptance of responsibility. The district court declined to grant the reduction because it found that defendant obstructed the investigation, denied elements of the offense, and blamed his crime on others, including the two-year-old victim. The Third Circuit affirmed the district court, noting that although defendant promptly surrendered to police, admitted his conduct, and pleaded guilty, he later recanted some of his admissions and sought to withdraw his guilty plea, raised “specious” arguments concerning his criminal intent, and “consistently attempted to blame others for his reprehensible conduct.” The court also noted that during the investigation of the case, defendant destroyed three hard drives and counseled another person to destroy a hard drive. U.S. v. King, 604 F.3d 125 (3d Cir. 2010).
3rd Circuit denies § 3E1.1 reduction based on unrelated pre-sentencing conduct. (494) Defendant participated in the burglary of a department store. The district court denied a § 3E1.1 reduction because while on pre-trial release pending sentencing defendant had tested positive for marijuana and had refused to attend a court-ordered rehabilitation program. The Third Circuit held a sentencing court may consider under § 3E1.1 unlawful conduct committed by the defendant while on pre-trial release awaiting sentencing as well as any violation of the conditions of the pre-trial release. The language of § 3E1.1, particularly the factors that may be considered in determining whether the defendant has demonstrated an acceptance of responsibility, is very general. The language does not specify that a court may only consider conduct related to the charged offense. Continued criminal activity, even if it differs in nature from the convicted offense, is inconsistent with an acceptance of responsibility and an interest in rehabilitation. Moreover, defendant’s conditions of release obligated him not to commit any offense while on release. U.S. v. Ceccarani, 98 F.3d 126 (3d Cir. 1996).
3rd Circuit finds that escapee who failed to turn himself in did not accept responsibility. (494) The defendant remained at large for two and one-half years following his escape. While he supplied some evidence of remorse, he never attempted to turn himself in. The 3rd Circuit upheld the district court’s reliance on his fugitive status in finding that he had not accepted responsibility. U.S. v. Audinot, 901 F.2d 1201 (3rd Cir. 1990).
3rd Circuit holds that escapee did not clearly demonstrate acceptance of responsibility. (494) Although defendant recognized his obligation to surrender, he did not do so. “Rather, he attempted to negotiate with the government.” The 3rd Circuit held that his actions were “inconsistent with the acceptance of responsibility for his criminal conduct.” U.S. v. Ofchinick, 877 F.2d 251 (3rd Cir. 1989).
4th Circuit denies acceptance reduction to defendant who dealt drugs while in prison awaiting trial. (494) While incarcerated awaiting trial on drug charges, defendant became involved in a scheme to deal marijuana and Xanax pills within the prison. The district court found that defendant’s drug dealing while in prison eviscerated his claim that he had accepted responsibility for the drug-dealing crime to which he had pled guilty, and the Fourth Circuit agreed. Although defendant admitted his drug dealing both inside and outside prison and pled guilty, the fact that he chose to deal drugs while incarcerated undermined his claim that he sincerely regretted and accepted responsibility for the illegal actions that caused his incarceration. U.S. v. Dugger, 485 F.3d 236 (4th Cir. 2007).
4th Circuit denies reduction where defendant used and distributed drugs after indictment. (494) Defendant argued that his guilty plea, admission of relevant conduct, cooperation with his probation officer, and voluntary participation in rehabilitative measures mandated an acceptance of responsibility reduction as a matter of law. The 4th Circuit rejected this claim. Given defendant’s continued use and illegal distribution of cocaine after his indictment and plea agreement, there was no error in denying the reduction. U.S. v. Kidd, 12 F.3d 30 (4th Cir. 1993).
4th Circuit holds that defendant’s failure to voluntarily withdraw from criminal association showed no acceptance of responsibility. (494) Defendant pled guilty to one count of a RICO violation. He withdrew from association with his “outlaw” motorcycle gang only after he was arrested and ordered to do so as a condition of release. At sentencing he refused to discuss some of his RICO offense conduct and some of his related conduct that had been classified as “relevant conduct’ in the probation report. The district court also found that he had been untruthful with his probation officer. The 4th Circuit held that the district court’s finding that defendant had not accepted responsibility for his conduct was not “clearly erroneous.” U.S. v. Cusack, 901 F.2d 29 (4th Cir. 1990).
5th Circuit denies § 3E1.1 reduction for addict’s positive drug tests and failure to keep appointments. (494) The district court denied defendant a § 3E1.1 reduction because defendant, who was a crack addict, tested positive for drugs twice before his plea, failed to report to Pretrial Services on two occasions, and failed to report to his drug treatment provider for urinalysis and counseling. Defendant argued that he did not violate the conditions of his release because of a lack of contrition but because of his drug addiction. The Fifth Circuit affirmed the denial of the reduction, since defendant not only tested positive for drug use, but failed to keep appointments with Pretrial Services and attend drug counseling. U.S. v. Flucas, 99 F.3d 177 (5th Cir. 1996).
5th Circuit affirms obstruction enhancement for drug use while on bond pending trial. (494) The district court denied an acceptance of responsibility reduction because defendant admitted smoking marijuana while he was released on bond pending trial and because he had obstructed justice by giving a false name to police upon his arrest. The Fifth Circuit held that denial was supported by defendant’s drug use while on pretrial release. A court may properly deny a § 3E1.1 reduction for failure to refrain from criminal conduct while on pretrial release. Defendant admitted that he used marijuana, and he tested positive for drugs while on pretrial release. U.S. v. Rickett, 89 F.3d 224 (5th Cir. 1996).
5th Circuit gives great deference to denial of credit for acceptance of responsibility. (494) Defendant argued that his guilty plea and admission of conduct comprising the offense of conviction demonstrated his acceptance of responsibility. The Fifth Circuit held that the correct standard of review to apply to a district court’s refusal to grant a § 3E1.1 reduction is the great deference standard. Using this standard, the district court’s decision to deny the reduction was not error. Defendant tested positive for cocaine three times since his arrest. In addition, at sentencing, he continued to deny several factual elements of his drug offense, maintaining that he never sold cocaine for $1200 an ounce, was never in possession of crack cocaine, and never visited or lived at the apartment that was the scene of the offense of conviction. U.S. v. Vital, 68 F.3d 114 (5th Cir. 1995).
5th Circuit denies reduction where defendant engaged in illegal conduct while on pretrial release. (494) The Fifth Circuit affirmed the denial of an acceptance of responsibility reduction, finding it was not based on defendant’s decision to exercise his right to a jury trial. The denial was based on defendant’s illegal conduct while on pretrial release in threatening his probation officer, possessing a firearm, and refusing to surrender to authorities on demand. Defendant, a police officer, was aware of the FBI investigation for nine months before he came forward and admitted his responsibility for the theft of cocaine. U.S. v. Siebe, 58 F.3d 161 (5th Cir. 1995).
5th Circuit says acceptance credit may be denied based on continued criminal conduct. (494) About one year after defendant was released on bond pending disposition of this case, U.S. Marshals went to his home in search of his son. After obtaining consent to search the home, they found evidence that defendant had continued to engage in unlawful activities while free on bond. Specifically, they found a large quantity of ammunition and a small amount of marijuana. The Fifth Circuit held that defendant’s continued criminal conduct while free on bond was grounds for denying him an acceptance of responsibility reduction. Note 1(b) to § 3E1.1 states that in determining whether to grant defendant an acceptance of responsibility reduction, the court may consider whether defendant withdrew from criminal conduct after being charged in the pending offense. U.S. v. Franks, 46 F.3d 402 (5th Cir. 1995).
5th Circuit denies reduction based on hearsay testimony that defendant arranged drug deal. (494) The district court denied defendant a reduction for acceptance of responsibility. The denial was based on a police officer’s testimony that while out on bond awaiting sentencing, defendant arranged a meeting between a prospective buyer and seller and marijuana. Defendant challenged this on the grounds that the officer had no personal knowledge of her alleged involvement in the transaction because her information was based solely on information from a confidential informant. The 5th Circuit found no error in relying on the officer’s testimony. A district court may rely on uncorroborated hearsay testimony in making factual findings as long as the hearsay evidence carries sufficient indicia of reliability. The officer’s testimony carried sufficient indicia of reliability. U.S. v. Golden, 17 F.3d 735 (5th Cir. 1994).
5th Circuit denies acceptance of responsibility reduction where defendant failed to comply with conditions of bond. (494) The 5th Circuit found no error in the district court’s refusal to grant a reduction for acceptance of responsibility based upon defendant’s failure to comply with the conditions of his bond. The guidelines permit the district court to consider relevant facts beyond those enumerated in the guideline commentary. U.S. v. Hooten, 942 F.2d 878 (5th Cir. 1991).
5th Circuit upholds denial of acceptance of responsibility reduction to defendant who used cocaine pending sentencing. (494) Defendant pled guilty to possessing treasury checks stolen from the mail. The district court determined that defendant was not entitled to a two point reduction in his offense level because defendant had used cocaine while on release pending sentencing. The 5th Circuit noted that application note 5 to guideline § 3E1.1 lists defendant’s “voluntary termination or withdrawal from criminal conduct or association” as a factor to consider in determining if a defendant qualifies for an acceptance of responsibility reduction in offense level. Since the note does not specify that the defendant need only refrain from criminal conduct associated with the offense of conviction in order to accept responsibility, it was proper for the district court to conclude that acceptance of responsibility includes refraining from any violations of law, whether or not related to the offense of conviction. U.S. v. Watkins, 911 F.2d 983 (5th Cir. 1990).
5th Circuit finds no acceptance of responsibility given defendant’s conduct on bond. (494) While on bond for the charge of making a false statement to purchase a gun, defendant violated conditions of his release by attempting to purchase another firearm, using a controlled substance and being arrested for possession of marijuana. Defendant argued he should have received a reduction for acceptance of responsibility because he pled guilty to the firearm charge and surrendered on the charge after learning of a warrant for his arrest. The 5th Circuit affirmed the district court’s sentence, agreeing that defendant’s conduct while on release demonstrated a lack of remorse. U.S. v. Sanchez, 893 F.2d 679 (5th Cir. 1990).
6th Circuit affirms use of preponderance standard to find that defendant committed additional offense. (494) Defendant pled guilty to being a felon in possession of a firearm. He was charged with a weapons offense in state court after he pled guilty in this matter. He challenged the district court’s denial of an acceptance of responsibility reduction based on the state offense, contending that the court had to find the fact of his new weapons offense beyond a reasonable doubt. The Sixth Circuit disagreed. It is well-established that factual findings affecting a sentence’s severity need not be made by a jury beyond a reasonable doubt, but can be determined by a judge by a preponderance of the evidence. Here, there was sufficient evidence to support the court’s finding. Defendant’s PSR stated that defendant supplied a shotgun to an informant who planned to commit a robbery and share the proceeds with defendant. Police officers observed the informant leave defendant’s residence with the shotgun, and recorded the transaction with video or audio devices. Moreover, officers found ammunition in defendant’s home. Defendant did not produce evidence to challenge the reliability of the report. U.S. v. Denson, 728 F.3d 603 (6th Cir. 2013).
6th Circuit reverses acceptance reduction where defendant’s remorse came at suggestion of judge. (494) The acceptance of responsibility reduction is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Note 2 to § 3E1.1. There might be an exception to this rule in “rare situations,” such as where a defendant goes to trial to raise issues unrelated to factual guilt. However, even in these rare situations, “a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct.” The Sixth Circuit reversed an acceptance of responsibility reduction. Defendant went to trial to deny all criminal conduct and admitted responsibility for his crimes only after he was convicted. Moreover, defendant’s remorse was not spontaneous, but came the suggestion of the district court. In addition, defendant received a sentence enhancement for obstruction of justice under § 3C1.1. He offered a fellow inmate $50,000 to kill a government witness, and would not even admit to the district court that he had done so. U.S. v. Angel, 355 F.3d 462 (6th Cir. 2004).
6th Circuit holds that delay in sentencing did not cause defendant’s escape attempt. (494) In 1997, while in police custody, defendant escaped, taking a deputy’s gun. He was apprehended and charged in state court with assault and firearms charges. Based on the firearm he used in the escape, he was also charged in federal court with being a felon in possession of a firearm. In 1999, after pleading guilty and prior to sentencing, defendant attempted another escape. As a result of his second escape attempt, the court denied him an three-level acceptance of responsibility. Defendant argued that the district court should not have penalized him for his second escape attempt, alleging that the government filed “frivolous” objections to his original PSR to delay his federal sentencing so the state court could impose a separate sentence, and that this delay resulted in the second escape attempt. The Sixth Circuit disagreed. The government’s filing of objections and the resulting delay in his sentencing had nothing to do with his decision to attempt a second escape. Defendant’s own voluntary actions demonstrated that he had not terminated his criminal conduct. The mere pleading of guilty between escape attempts did not warrant an acceptance of responsibility reduction. U.S. v. Lawson, 266 F.3d 462 (6th Cir. 2001).
6th Circuit holds that post-plea criminal charges did not preclude acceptance reduction. (494) After pleading guilty to drug and weapons charges, defendant was released on bond. He was then arrested for assault and destruction of property. The charges stemmed from an altercation with his girlfriend and her children that arose after he returned home from work and found beer and marijuana in the house, which violated the terms of his release. Based on the intervening criminal charges, and defendant’s failure to provide the probation department with a written statement about the offense, the district court refused to grant defendant an acceptance of responsibility reduction. The Sixth Circuit held that the district court’s consideration of the post-plea charges was improper. Defendant’s post-plea assault and destruction of property charges were plainly unrelated to the offenses for which he was being sentencing, signaling that he was denied the sentence reduction due to a general criminal disposition. This is improper. See U.S. v. Morrison, 983 F.3d 730 (6th Cir. 1993). The court also erred considering defendant’s failure to provide the probation department with a written account of the charged offenses. Defendant cooperated fully with arresting officers, discussed his crimes with federal investigators, offered assistance and timely pled guilty. In light of the government’s agreement to recommend the reduction and the overwhelming evidence of defendants’ cooperation, his subsequent failure to provide the probation department with a written account was not a deliberate refusal to cooperate. U.S. v. Banks, 252 F.3d 801 (6th Cir. 2001).
6th Circuit says court may not deny acceptance reduction based on pre-indictment crimes. (494) In November 1997, defendant was indicted on federal mail fraud charges. He pled guilty in February 1988. The district court denied him an acceptance of responsibility reduction because, after being arrested in June 1996 and indicted in October 1996 on state charges for fraudulent loan transactions, defendant had engaged in similar conduct on at least three occasions. The Sixth Circuit reversed, holding that the district court could not use defendant’s pre-indictment state crimes as a basis for denying him an acceptance of responsibility reduction on the federal charges. A “defendant must be on notice that the federal government has an interest in his or her affairs before § 3E1.1 comes into play.” There was no indication that defendant had any knowledge that he would be federally prosecuted until the federal government issued an indictment on November 13, 1997. Thus, the relevant time period for acceptance of responsibility could not begin until November 13, 1997, the date that federal authorities indicted defendant and he became aware that he was subject to federal investigation and prosecution. U.S. v. Jeter, 191 F.3d 637 (6th Cir. 1999), abrogation on other grounds recognized by U.S. v. Webb, 335 F.3d 534 (6th Cir. 2003).
6th Circuit denies acceptance reduction based on pre-indictment misconduct. (494) In November 1997, defendant was indicted on federal mail fraud charges. He pled guilty in February 1998. The district court denied him an acceptance of responsibility reduction because, after being arrested in June 1996 and indicted in October 1996 on state charges for fraudulent loan transactions, defendant had engaged in similar conduct on at least three subsequent occasions. Defendant argued that he deserved the reduction based on his 1998 federal guilty plea and his subsequent cooperation with the government. The Sixth Circuit ruled that once defendant was arrested and indicted on state charges for fraudulent loan transactions and knew that “the jig was up,” his continuing to engage in similar conduct was a factor that the district court could properly consider in making the acceptance of responsibility determination. The commentary to § 3E1.1 provides a non-exclusive list of eight factors that a district court may consider in determining whether a defendant qualifies for the reduction. Thus, although the court below did not err in this case, it is possible that in other cases involving different facts, the outcome would be different. Judge Kennedy dissented, believing that a court could not use pre-indictment state crimes as the basis for the denial of the acceptance reduction. U.S. v. Jeter, 191 F.3d 637 (6th Cir. 1999), abrogation on other grounds recognized by U.S. v. Webb, 335 F.3d 534 (6th Cir. 2003).
6th Circuit denies acceptance reduction for positive drug test while free on bond. (494) The probation officer recommended that defendant not receive an acceptance of responsibility reduction because the urine sample that he submitted while free on bond awaiting sentencing tested positive for cocaine. Defendant claimed that the drugs found in his urine resulted from medication (Vicodin and Tylenol with codeine) prescribed by his dentist following root canal surgery. However, experts testified that neither Vicodin nor Tylenol with codeine would cause defendant’s urine sample to test positive for cocaine. The Sixth Circuit upheld the denial of an acceptance of responsibility reduction based on defendant’s cocaine use while free on bond. Defendant’s cocaine use constituted a continuation of his previous criminal activity. In addition, defendant lied under oath when he repeatedly denied using cocaine while free on bond. U.S. v. Walker, 182 F.3d 485 (6th Cir. 1999).
6th Circuit denies reduction based on criminal conduct that occurred after indictment but before trial. (494) Defendant was indicted on current federal drug charges in June 1996. In December 1996, while out of bond, defendant was arrested in Tennessee for drug offenses. In March 1997, defendant was convicted of the current federal drug charges. The Tennessee state charges remained pending at the time defendant was sentenced in the current matter. The district court denied defendant an acceptance of responsibility reduction because defendant did not voluntarily withdraw from criminal conduct. Defendant argued that since the Tennessee incident preceded his federal trial, it could not be classified as criminal conduct that continued following an acceptance of responsibility. The Sixth Circuit found that the guidelines do not limit relevant acceptance of responsibility to that which occurs at trial. Thus, it was well within the court’s discretion to decide that the subsequent state charges, lodged after defendant’s indictment for the current offense, were at odds with acceptance of responsibility. Since both the federal and state charges were for the same type of conduct, there was no clear error in concluding that defendant did not withdraw from criminal conduct. U.S. v. Bennett, 170 F.3d 632 (6th Cir. 1999) .
6th Circuit denies acceptance reduction where defendant lied about accident with informant. (494) Defendant pled guilty to manufacturing marijuana. The district court denied defendant a § 3E1.1 acceptance of responsibility reduction because defendant had not been truthful about an automobile incident involving defendant and an informant. Nineteen months after the search of defendant’s residence and his arrest, defendant rammed his vehicle into the rear of the informant’s vehicle in an apparent effort to intimidate and harass the informant. Defendant testified that the informant was the instigator of the incident and that he was unaware at the time that this individual had been an informant. The Sixth Circuit affirmed the denial of the § 3E1.1 reduction, since the court’s finding that defendant was untruthful was not clearly erroneous. The district court assessed defendant’s testimony in light of the sworn grand jury testimony of the informant and a police officer trained in accident reconstruction, as well as photos of the accident scene showing debris and skidmarks. Defendant’s account of the accident was not consistent with the other facts. U.S. v. Russell, 156 F.3d 687 (6th Cir. 1998).
6th Circuit denies reduction for failing to appear and endangering others when arrested. (494) Before trial, defendant failed to appear and his bond was revoked. When he was finally located, defendant escaped to the apartment next door through a hole in a bathroom wall. He held a knife to the neck of one of the residents before he was finally apprehended. Defendant argued that in denying him a § 3E1.1 reduction, the district court failed to consider his admissions at trial. The Sixth Circuit affirmed the denial of an acceptance of responsibility reduction. The guidelines do not take into account express admissions of responsibility at any point in time. The guidelines direct a court to weigh the totality of a defendant’s conduct beginning at the commission of his offense. Here, although defendant admitted some of his criminal conduct at trial, he did not terminate his criminal conduct, did not voluntarily surrender to authorities, obstructed justice, and endangered others while attempting to escape apprehension. U.S. v. Bradshaw, 102 F.3d 204 (6th Cir. 1996).
6th Circuit holds pre‑arrest actions were inconsistent with acceptance of responsibility. (494) In 1992, defendant admitted to postal inspectors that he stole mail, removed checks from the stolen mail, and then cashed the stolen checks. He said was he was sorry for his actions and was willing to make restitution. Before prosecution of these offenses, defendant was convicted in state court for passing bad and forged checks. In 1994, defendant was indicted on federal stolen mail charges. He was not immediately arrested, and continued to engage in criminal activity. Defendant argued that the acceptance of responsibility reduction must be made based on events occurring after his 1995 arrest for the instant offense, but the Sixth Circuit rejected the argument. To test the validity of the 1995 acceptance, the district court was entitled to consider that defendant chose to continue his course of criminal conduct after his 1992 “acceptance.” The district court properly considered the continuing criminal conduct in evaluating the sincerity of the claimed acceptance of responsibility. U.S. v. Childers, 86 F.3d 562 (6th Cir. 1996), abrogation as to standard of review recognized by U.S. v. Webb, 335 F.3d 534 (6th Cir. 2003).
6th Circuit denies acceptance reduction where defendant used drugs while on bond. (494) Defendant cooperated by pleading guilty and informing the government of his entire scheme. While on bond he attended counseling for his marijuana addiction. Due to a lack of funding, the rehabilitation program was discontinued. Thereafter, he tested positive for marijuana use on three separate occasions prior to sentencing. Defendant argued that he was entitled to a reduction for acceptance of responsibility. The 6th Circuit rejected this, since defendant committed a crime related to his underlying guilty plea and violated his bond conditions. The fact that his rehabilitation program was discontinued might be a mitigating factor, but it was not of such magnitude as to make the denial of the reduction clearly erroneous. U.S. v. Zimmer, 14 F.3d 286 (6th Cir. 1994).
6th Circuit denies reduction where defendant arranged drug deal while in jail. (494) Defendant was the “perfect candidate” for the acceptance of responsibility reduction, except for the fact that while in jail for the instant offense, he arranged a drug transaction. The 6th Circuit approved the denial of a reduction for acceptance of responsibility. Although defendant’s admissions of guilt and his acceptance of responsibility for the things he admitted doing were commendable, the district court was completely justified in taking the arrangement of a drug deal from the jailhouse as compelling evidence that defendant did not accept responsibility. U.S. v. Crousore, 1 F.3d 382 (6th Cir. 1993).
6th Circuit prohibits denial of credit based on post-arrest misconduct unrelated to offense of conviction. (494) Defendant was convicted of being a felon in possession of a firearm. The district court denied him an acceptance of responsibility reduction because while on release, he (a) attempted to steal a pickup truck, (b) was in constructive possession of other firearms, and (c) tested positive for a controlled substance. The 6th Circuit remanded because the district court relied on an inappropriate factor in deciding whether defendant had accepted responsibility. In determining whether a defendant has voluntarily terminated criminal conduct for purposes of the acceptance of responsibility reduction, a court may only consider conduct which is related or similar to the underlying offense. An individual who is truly repentant for one crime but commits other unrelated crimes still qualifies for an acceptance of responsibility reduction. Judge Kennedy dissented. U.S. v. Morrison, 983 F.2d 730 (6th Cir. 1993).
6th Circuit holds denial of acceptance of responsibility reduction was properly based upon continuing criminal conduct. (494) While in jail on unrelated charges, defendant perpetrated a credit card fraud and was involved in a scheme to fraudulently obtain Dilaudid. Defendant had a history of such fraudulent schemes. The district court denied defendant a reduction for acceptance of responsibility because “it does appear to this Court that [defendant] is engaged in on-going criminal activity; that he is incorrigible.” The 6th Circuit affirmed, rejecting defendant’s claim that the reduction was improperly based upon his prior conduct. The court’s statements indicated it believed that defendant was continuing to engage in unlawful activities, as evidenced by the order to supervise defendant’s use of the phone. U.S. v. Downs, 955 F.2d 397 (6th Cir. 1992).
6th Circuit denies acceptance of responsibility reduction to defendant who continued fraud in jail. (494) Defendant was denied a reduction for acceptance of responsibility because he continued his credit card fraud while in jail awaiting sentencing. The 6th Circuit affirmed, noting that such continued criminal conduct was incompatible with an acceptance of responsibility. The court rejected defendant’s claim that section 3E1.1 only requires a defendant to indicate a willingness to be held accountable for his crime. Such a reading would permit a defendant not to express remorse, not to apologize to any victim, and not to promise not to commit criminal acts in the future. U.S. v. Reed, 951 F.2d 97 (6th Cir. 1991).
6th Circuit finds that defendant who conspired to obtain cocaine while incarcerated did not accept responsibility. (494) Reviewing the district court’s decision under the clearly erroneous standard, the 6th Circuit found that defendant’s attempts to obtain cocaine while incarcerated on drug charges supported the district court’s determination that defendant was not entitled to a sentence reduction for acceptance of responsibility. The Commentary to guidelines § 3E1.1 states that “a voluntary termination or withdrawal from criminal conduct or associations” is a factor to consider for determining a defendant’s acceptance of responsibility. U.S. v. Snyder, 913 F.2d 300 (6th Cir. 1990).
6th Circuit holds that defendant’s threats against witnesses preclude credit for acceptance of responsibility. (494) Defendant contended he should have received a two level credit for acceptance of responsibility because he pled guilty and stated he was “sorry.” He argued that the district court penalized him for not cooperating with authorities and improperly equated cooperation with acceptance of responsibility. Although the district court commented on lack of cooperation, in denying the reduction, the 6th Circuit agreed that threats by the defendant to a government informant and witness showed defendant had not accepted responsibility. U.S. v. Barrett, 890 F.2d 855 (6th Cir. 1989), abrogation on other grounds recognized by U.S. v. Moore, 225 F.3d 637 (6th Cir. 2000).
6th Circuit holds no acceptance of responsibility where defendant gave deceptive answers to police when arrested. (494) Defendant pled guilty to being a felon in possession of a firearm. The 6th Circuit held that the district court’s denial of an offense level reduction for acceptance of responsibility (§ 3E1.1) was not clearly erroneous given the defendant’s failure to fully recognize and affirmatively accept responsibility. More than a guilty plea is required; the defendant must manifest a sincere acceptance of responsibility for the offense. The defendant here failed to do so, because he gave deceptive answers to the police upon his arrest. U.S. v. Wilson, 878 F.2d 921 (6th Cir. 1989).
7th Circuit says efforts to obtain child porn while in custody supported denial of acceptance reduction. (494) Defendant pled guilty to multiple child pornography counts, and received a 40-year sentence. While in custody on those charges, defendant had prepared a list of child pornography he wanted and offered another inmate payment if the inmate could procure it for him. The Seventh Circuit found that defendant’s efforts to obtain child pornography while in custody provided ample support for the district court’s finding that defendant did not accept responsibility. U.S. v. Annoreno, 713 F.3d 352 (7th Cir. 2013).
7th Circuit denies acceptance credit where defendant continued fraud while on bond. (494) Defendant faked a claim that his wife was dead in order to try to collect on a $500,000 life insurance policy. He pled guilty to mail fraud. After pleading guilty, but before being sentenced, defendant traveled to St. Louis in violation of his pretrial release and engaged in another fraud scheme in which he entered into a fraudulent residential sale contract for a $2.6 million home. Defendant argued that he still deserved an acceptance of responsibility reduction, claiming that the violations of his pretrial release did not outweigh his positive behavior that warranted the reduction. The district court rejected this contention, finding that defendant’s conduct was more than “merely improper” but instead qualified as “incipient criminal charges” and reflected defendant’s failure to terminate his criminal conduct. The Seventh Circuit agreed that defendant was not entitled to an acceptance of responsibility reduction. Defendant’s violation of his bond was a continuation of his criminal conduct and criminal associations for purposes of the acceptance reduction. U.S. v. Horn, 635 F.3d 877 (7th Cir. 2011).
7th Circuit denies acceptance reduction based on post-arrest misconduct. (494) Defendant pled guilty to cocaine trafficking charges. The district court found that a reduction for acceptance of responsibility was not warranted based on two post-arrest incidents. First, defendant had called his wife five days after his arrest and instructed her to contact Doyle, a drug distributor, and warn him to “empty his bookcases.” Defendant also told his wife to tell Doyle that the police could not make a case against him if he kept quiet. Second, defendant attacked another prisoner during a card game while detained. The court found that the post-arrest phone call and his jail fight were criminal acts that suggested a heightened risk of recidivism and signaled that defendant had not withdrawn from his criminal associations. The Seventh Circuit upheld the denial of the acceptance reduction based on these two post-arrest examples of misconduct. Although timely pleading guilty and truthfully admitting the offense of conviction and relevant conduct are actions consistent with acceptance of responsibility, such evidence can be outweighed by other incompatible acts or statements. See Note 3 to § 3E1.1. U.S. v. Sellers, 595 F.3d 791 (7th Cir. 2010).
7th Circuit denies acceptance reduction for prisoner’s filing of fraudulent tort claim. (494) Defendant pled guilty to possession of marijuana by a federal inmate. Before sentencing, he filed a two million dollar “Claim for Damage, Injury or Death” against the Bureau of Prisons, alleging that he had received the drugs from another inmate rather than from his girlfriend during a prison visit. He claimed that he had wrongfully been denied visits with his girlfriend since the marijuana incident, which had caused him mental and emotional injury. Two weeks after he filed the tort claim, he admitted to his probation officer that his girlfriend had given him the marijuana. The Seventh Circuit affirmed the denial of an acceptance of responsibility reduction based on defendant’s filing of a fraudulent tort claim. Lying, which the filing of the false tort claim must be considered, is, by itself, sufficient grounds for denying the acceptance reduction. Also, defendant waited until sentencing to inform the judge that the tort claim was false, which suggested that he was motivated by a desire for a lower sentence. U.S. v. Taliaferro, 211 F.3d 412 (7th Cir. 2000).
7th Circuit denies reduction to addict who used drugs and failed to participate in treatment. (494) The district court denied defendant a § 3E1.1 reduction because while on release she tested positive for drug use and failed to participate in a court-ordered drug treatment program. Defendant argued that she was remorseful about her part in the offense of conviction but that she was unable, due to a drug addiction, to terminate all illegal drug use. The Seventh Circuit upheld the denial of the § 3E1.1 reduction since this was not a case involving an individual addicted to drugs who nevertheless genuinely accepted responsibility. Defendant did not simply fail an occasional drug test. For almost a year, she continually failed to cooperate with the various drug therapy proceedings, including drug testing and counseling programs in which she was ordered to participate. While in one drug program, defendant failed to appear for drug testing and counseling on more than 10 occasions. In addition, on several occasions, she tested positive for cocaine. U.S. v. Boatner, 99 F.3d 831 (7th Cir. 1996).
7th Circuit says new offense after plea permitted government to oppose acceptance credit. (494) While working as a live‑in nanny, defendant fraudulently obtained credit cards in the name of her employers and charged over $22,000. Her plea agreement provided that she was entitled to a reduction for acceptance of responsibility. She acknowledged that the government’s position was “based on the information presently available and known to the government.” After her plea hearing, defendant committed a similar offense, forging another employer’s signature on stolen checks. Before sentencing, the government stated its intention not to recommend the acceptance of responsibility reduction. Defendant argued that this breached the plea agreement. The Seventh Circuit held that the statement that the government’s position was based on current information qualified the government’s obligation. Defendant’s new criminal conduct after signing the plea agreement undercut her claim of acceptance of responsibility. Given the qualifying language of the plea agreement, it was unreasonable for defendant to believe that the government would still be obligated to recommend the § 3E1.1 reduction. U.S. v. Ashurst, 96 F.3d 1055 (7th Cir. 1996).
7th Circuit denies reduction to addict who tested positive for drug use 20 out of 30 times. (494) On bond, defendant tested positive for drug use in 20 of 30 random urine tests. Defendant argued that he was an addict who could not help using drugs. The district court acknowledged defendant’s early plea, his cooperation, and his payment of taxes on illegal income. However, given defendant’s continued drug use while on bond, the court declined to grant him the reduction. The Seventh Circuit affirmed, even though except for his drug use, it appeared that defendant had accepted responsibility. U.S. v. Kirkland, 28 F.3d 49 (7th Cir. 1994) recognizes that there might be a situation in which an addict genuinely accepts responsibility for his offense, but because of his addiction will occasionally test positive. However, defendant’s drug use was more than “occasional.” The district court stated that it would have granted the reduction if defendant only had a few positive urine tests. U.S. v. Dawson, 52 F.3d 631 (7th Cir. 1995).
7th Circuit says additional frauds were grounds for denying acceptance of responsibility reduction. (494) Defendant fraudulently induced victims to invest in a non-existent business. The district court denied a reduction for acceptance of responsibility because after pleading guilty, defendant rented a residence under a false name, kited checks, forged checks, and wrote checks for which he knew there were insufficient funds. The 7th Circuit agreed that this additional fraudulent behavior was grounds for denying the § 3E1.1 reduction. The conduct was almost identical to the crimes for which he was convicted. U.S. v. Marvin, 28 F.3d 663 (7th Cir. 1994).
7th Circuit denies reduction to defendant who continued drug use and failed to appear for testing. (494) The government agreed to recommend a three level reduction for acceptance of responsibility, provided defendant continued to manifest acceptance of responsibility and abstained from using any controlled substances. After his plea, defendant tested positive for THC three times and failed to appear for testing twice. The 7th Circuit held that defendant’s continued drug use and failure to appear for testing were proper grounds for denying an acceptance of responsibility reduction. Although pleading guilty is persuasive evidence of acceptance of responsibility, it is not sufficient. A defendant must also continue to manifest acceptance of responsibility, which includes terminating both criminal conduct and non-criminal behavior inconsistent with acceptance of responsibility. U.S. v. Kirkland, 28 F.3d 49 (7th Cir. 1994).
7th Circuit holds court may consider use of drugs on release even if not similar to instant offense. (494) Defendant pled guilty to aiding and abetting a counterfeiting operation. The district court denied defendant a reduction for acceptance of responsibility because he used cocaine while awaiting sentencing. The 7th Circuit affirmed, holding that the court could properly consider a defendant’s criminal conduct while free on bond, even if that conduct was not similar to the charged offense. Application note 1(b) says acceptance of responsibility is evidenced by voluntary termination or withdrawal from criminal conduct or associations. This broad language includes criminal conduct or associations generally. Defendant’s repeated failure to submit urine samples and the positive test results for marijuana and cocaine indicated that defendant had not accepted responsibility for his crime. U.S. v. McDonald, 22 F.3d 139 (7th Cir. 1994).
7th Circuit denies acceptance credit to defendant who continued to engage in fraud on bond. (494) Defendant argued that she was entitled to a reduction for acceptance of responsibility because she pled guilty and provided potentially incriminating information to the government regarding her fraud. The 7th Circuit upheld the denial of credit because defendant had defrauded several banks while awaiting disposition of the instant fraud charges. In addition, the district court found defendant’s acceptance of responsibility was insincere. Instead of expressing actual remorse, defendant had accepted responsibility only to reduce her sentence. She had in the past committed similar crimes, pled guilty, received light sentences and then resumed her criminal activity upon release. Denial of the reduction was consistent with precedents that recognized the distinction between actual acceptance of responsibility and merely seeking to reduce one’s sentence. U.S. v. Panadero, 7 F.3d 691 (7th Cir. 1993).
7th Circuit denies acceptance of responsibility reduction to defendant who did not voluntarily surrender. (494) Defendant failed to appear for trial on drug charges. He was apprehended over two years later in a different city carrying a false driver’s license under another name. In sentencing him on the failure to appear offense, the 7th Circuit affirmed a denial of a reduction for acceptance of responsibility, in light of defendant’s failure to surrender voluntarily and his own false identification to officers at his arrest. U.S. v. Lechuga, 975 F.2d 397 (7th Cir. 1992).
7th Circuit finds drug arrests and use of cocaine while on bond were inconsistent with acceptance of responsibility. (494) While free on bond, the defendant was arrested twice in possession of small quantities of marijuana in the presence of minors. He also used cocaine while awaiting sentencing on his cocaine conviction. Holding that appellate courts should be especially deferential in reviewing a finding that the defendant has not accepted responsibility the 7th Circuit upheld the district judges ruling, noting that defendant’s actions were inconsistent with acceptance of responsibility. U.S. v. Jordan, 890 F.2d 968 (7th Cir. 1989), abrogated on other grounds by U.S. v. Thompson, 944 F.2d 1331 (7th Cir. 1991).
7th Circuit denies credit for acceptance of responsibility where defendant attempted to flee after failing to appear. (494) Defendant was convicted of failing to appear for sentencing. The district court denied a reduction for acceptance of responsibility because he disappeared for seven months, and when U.S. Marshals eventually found him, he attempted to flee. The 7th Circuit rejected defendant’s claim that the denial of credit for acceptance of responsibility was improperly based on a factor that was a necessary prerequisite to the offense. Unlike the crime of escape, failure to appear is not a continuing offense. Defendant’s crime was complete when he failed to appear for sentencing. He could have demonstrated his acceptance of responsibility by surrendering, but he did not. In fact, when U.S. Marshals approached him, he attempted to flee. The district court properly considered his flight, which was not a prerequisite to the crime, as grounds for denying the reduction. U.S. v. Knorr, 942 F.2d 1217 (7th Cir. 1991).
7th Circuit finds no breach of plea agreement in government’s failure to recommend acceptance of responsibility reduction. (494) Defendant contended that according to his plea agreement, the government agreed to recommend a reduction for acceptance of responsibility. He further contended that the government’s introduction of evidence concerning defendant’s obstruction of justice breached the plea agreement because it was an attempt to deny defendant the acceptance of responsibility reduction. The 7th Circuit found no breach of the plea agreement. At the time the government entered into the plea agreement, it was unaware that defendant had sought the help of others to kill government witnesses. Once it learned of such attempt, the government was entitled to withdraw from the plea agreement on the ground defendant was not accepting responsibility for his crime and was in fact planning a more serious crime. U.S. v. Osborne, 931 F.2d 1139 (7th Cir. 1991).
7th Circuit finds no acceptance of responsibility by defendant who lied to federal agents and attempted to hide evidence. (494) The 7th Circuit found that the district court’s denial of a reduction for acceptance of responsibility was supported by the facts. Defendant initially lied to federal agents, attempted to conceal several heroin-filled balloons by passing them from his system, and denied that he knew that the balloons contained heroin at his initial plea hearing. U.S. v. Oduloye, 924 F.2d 116 (7th Cir. 1991).
7th Circuit finds no acceptance of responsibility when defendant “came clean” due to a practical concern to lessen his punishment. (494) The 7th Circuit affirmed the trial court’s finding, that the defendant’s guilty plea and truthful admissions arose more from his practical concern to lessen his punishment then from any true remorse for his crimes. Furthermore, the district court found that the defendant was not entitled to the reduction because he continued to deal in cocaine while out on bond. This type of conduct is the opposite of the type of conduct “expected from someone who is truly remorseful about his crimes.” U.S. v. Franklin, 902 F.2d 501 (7th Cir. 1990).
8th Circuit denies acceptance credit to defendant who committed robbery and manufactured evidence while on release. (494) Defendant pled guilty to two counts of distributing cocaine base. Defendant was released pending sentencing and subsequently arrested for robbery. At the sentencing for defendant’s federal drug offenses, the district court found that defendant’s arrest for robbery and his attempts to manufacture exculpatory evidence meant that he was not entitled to a three-level reduction for acceptance of responsibility. The Eighth Circuit affirmed. Defendant’s argument essentially was a disagreement with how the district court weighed the facts. Defendant’s guilty plea and truthful admission of the conduct comprising the offense of conviction was significant evidence in favor of the acceptance reduction. See Note 3 to § 3E1.1. However, the application note states that “this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility.” Previous cases have consistently upheld the denial of the acceptance reduction to defendants whose conduct “belies their claims of contrition.” Here, the district court was entitled to consider defendant’s involvement in a robbery and his attempts to manufacture exculpatory evidence from jail in determining whether he had clearly accepted responsibility for his federal crimes. U.S. v. William, 681 F.3d 936 (8th Cir. 2012).
8th Circuit considers post-plea attempted purchase of drugs in denying acceptance reduction. (494) Defendant worked for a health care agency, first as a registered nurse and eventually as the assistant director of nursing. She admitted taking vicodin, morphine and dilaudid from clients, and later pled guilty to one count of obtaining a controlled substance by fraud. The district court allowed her to be released until sentencing. Defendant violated a condition of her release by attempting to obtain refills of a vicodin prescription when none had been authorized. Before sentencing, she submitted a letter to the court in which she discussed her various physical problems, and wrote that she “just needed a little more medication than I had which lead [sic] to my violation.” The Eighth Circuit upheld the denial of an acceptance of responsibility reduction, holding that the district court was entitled to consider defendant’s post-plea attempted procurement of drugs and the content of her letter in determining whether she had accepted responsibility. U.S. v. Fronk, 606 F.3d 452 (8th Cir. 2010).
8th Circuit approves denial of acceptance reduction and four-level upward variance based on jail misconduct. (494) While in jail awaiting sentencing on damage to property charges, defendant engaged in numerous acts of disruptive behavior. His advisory guideline range was 27-33 months, but based on his misconduct, the district court sentenced defendant to 50 months, which amounted to a four-level increase in his offense level. The Eighth Circuit held that the district court did not err in both denying defendant an acceptance of responsibility reduction and imposing the four-level variance based on the same jailhouse misconduct. Defendant’s misconduct not only demonstrated his lack of acceptance of responsibility, but it was clearly relevant to other § 3553(a) factors, such as protecting the public from defendant’s future crimes, deterring criminal conduct and promoting respect for the law. Although the use of the same conduct to deny the reduction and grant the variance “stretche[d] the outer bounds” of what was reasonable, the court did not abuse its discretion. The fact that the court did not find that the misconduct warranted a departure under § 5K2.0 did not mean that it could not grant a variance on these grounds. U.S. v. Jones, 509 F.3d 911 (8th Cir. 2007).
8th Circuit denies acceptance reduction to defendant who resumed fraud after signing plea agreement. (494) Defendant pled guilty to one count of bank fraud in connection with a check-kiting scheme. In an effort to demonstrate his acceptance of responsibility, defendant began to incrementally repay the bank victimized by his fraud. However, the government discovered that defendant financed his repayments with proceeds from a new fraud scheme, and withdrew its recommendation for an acceptance of responsibility reduction. The Eighth Circuit held that the district court did not clearly err in refusing to grant defendant the acceptance reduction. Although defendant disputed the government’s claim that his post-plea conduct was fraudulent, the government’s evidence, if believed, established that defendant had not ceased his wrongdoing as required by the plea agreement. He did not provide any evidence to support his contention that he was involved in a legitimate business enterprise. U.S. v. Tjaden, 473 F.3d 877 (8th Cir. 2007).
8th Circuit denies reduction where defendant hid and then fled after being incorrectly released from jail. (494) Defendant claimed that he accepted responsibility by entering a plea of guilty and discussing his role in the offense with law enforcement on three separate occasions. The Eighth Circuit affirmed the denial of the reduction, given that defendant hid from authorities after being inadvertently released from jail and fled from officers when he learned he was to be taken back into custody. Moreover, other conduct, including his continued use of methamphetamine while awaiting trial and the fact that he fled before his first trial date, also supported the denial of the reduction. The district court properly found that defendant’s conduct was inconsistent with acceptance of responsibility. U.S. v. Boettger, 316 F.3d 816 (8th Cir. 2003).
8th Circuit denies acceptance increase to defendant who sold drugs to minors while on pretrial release. (494) The district court applied an obstruction of justice increase because while on pretrial release, defendant distributed methamphetamine several times to three women under the age of 21. Defendant did not challenge this enhancement on appeal, but argued that the court clearly erred in denying him a reduction for acceptance of responsibility. In determining whether a defendant who has obstructed conduct has accepted responsibility, the court should consider the timing and nature of the defendant’s obstructive conduct, the degree of his acceptance of responsibility, whether his obstruction was an isolated and early incident, whether he voluntarily terminated his obstructive conduct, whether he admitted and recanted his obstructive conduct, and whether he assisted in the investigation of his and others’ offenses. The Eighth Circuit upheld the denial of the acceptance reduction, finding that court weighed defendant’s obstructive conduct against his acceptance conduct in a manner consistent with this framework. Most troubling to the court was defendant’s repeated distribution of meth to minors while he was on pretrial release, an ongoing obstruction of justice that terminated only when police arrested him. In weighing the facts, the weight assigned to any one factor is within the district court’s discretion. U.S. v. Stoltenberg, 309 F.3d 499 (8th Cir. 2002).
8th Circuit says assault after plea justified denying credit for acceptance of responsibility. (494) A month after he pled guilty, defendant hit a correction officer and knocked him over. He was charged in state court with assaulting a correctional officer, but had not been tried before he was sentenced in the present case. The district court denied credit for acceptance of responsibility because of the assault, even though defendant had cooperated, provided truthful information and pled guilty. On appeal, the Eighth Circuit affirmed the denial of the reduction, holding that “even unrelated criminal conduct may make an acceptance of responsibility reduction inappropriate.” Therefore the district court was entitled to consider the assault, and “we cannot say that the district court erred in its finding.” U.S. v. Arellano, 291 F.3d 1032 (8th Cir. 2002).
8th Circuit denies reduction where defendant engaged in similar illegal conduct while on pretrial release. (494) Defendant opened bank accounts using false names, deposited checks drawn on closed account to create false balances, and withdrew money from the accounts. In a plea agreement, the government agreed to recommend an acceptance of responsibility reduction, but only if defendant exhibited conduct consistent with acceptance of responsibility. While on pretrial release, defendant opened a checking account at a Kansas City bank using a former address and a false social security number; deposited into the account four checks drawn on a California bank, all of which were ultimately returned due to insufficient funds, and wrote checks which exceeded the balance in the Kansas City account. Because defendant engaged in illegal conduct similar to the offense of conviction, the Eighth Circuit upheld the district court’s refusal to grant an acceptance of responsibility reduction. Moreover, the government did not breach the plea agreement by failing to recommend such a reduction. The recommendation was conditioned on defendant exhibiting conduct consistent with acceptance of responsibility, and reserved to the government the discretion to void the agreement if defendant engaged in any further criminal activity. U.S. v. Adams, 197 F.3d 1221 (8th Cir. 1999).
8th Circuit denies § 3E1.1 reduction where defendant repeatedly tested positive for meth while on bond. (494) The Eighth Circuit summarily affirmed the denial of an acceptance of responsibility reduction where defendant repeatedly tested positive for methamphetamine while released on bond following his arrest for manufacturing methamphetamine. U.S. v. Cole, 125 F.3d 654 (8th Cir. 1997).
8th Circuit denies § 3E1.1 reduction where defendant repeatedly tested positive for meth while on bond. (494) The Eighth Circuit summarily affirmed the denial of an acceptance of responsibility reduction where defendant repeatedly tested positive for methamphetamine while released on bond following his arrest for manufacturing methamphetamine. U.S. v. Cole, 125 F.3d 654 (8th Cir. 1997).
8th Circuit permits denial of § 3E1.1 reduction and upward departure for same conduct. (494) While free on bond pending sentencing, defendant embezzled funds from her employer. Based on this crime, the district court refused to grant a § 3E1.1 acceptance of responsibility reduction and also departed upward under § 5K2.0. Agreeing with U.S. v. Aimufua, 935 F.3d 1199 (11th Cir. 1991), the Eighth Circuit affirmed, holding that double counting is permissible if the Sentencing Commission intended the result and the statutory sections are conceptually separate. The policy statement for § 5K2.0 specifically provides that a court may depart even for factors considered by the guidelines if the guideline level for that factor is inadequate. Section 3E1.1 and Chapter 4 allow a court to consider criminal conduct that occurred before sentencing. Section 5K2.0 and § 3E1.1 are conceptually separate notions. Section 3E1.1 reduces a sentence for a defendant who has shown sincere remorse for his crime while an upward departure under § 5K2.0 enhances an otherwise inadequate sentence. U.S. v. Hipenbecker, 115 F.3d 581 (8th Cir. 1997).
8th Circuit approves consideration of presentence deportment as factor under § 3E1.1. (494) The court awarded defendant a two level acceptance of responsibility reduction. However, it refused to make the additional one level reduction because while incarcerated awaiting sentencing, defendant continually violated facility rules and was a disruptive influence at the facility. The Eighth Circuit agreed that presentence deportment is a factor that may be considered under § 3E1.1. U.S. v. Atlas, 94 F.3d 447 (8th Cir. 1996).
8th Circuit considers unrelated criminal conduct for acceptance of responsibility purposes. (494) While on release pending sentencing for an assault conviction, defendant submitted a urine sample that tested positive for marijuana. At sentencing, defendant denied using marijuana, attributing his positive test to having resided at the home of friends who smoked marijuana. The Eighth Circuit upheld the denial of an acceptance of responsibility reduction based on the court’s finding that defendant smoked marijuana while on release. The burden of proof is on the defendant with respect to mitigating factors. Section 3E1.1 does not prohibit a court from considering unrelated criminal conduct. Note 1(b) permits a court to consider whether defendant has demonstrated “voluntary termination or withdrawal from criminal conduct or associations.” The fact that a defendant engaged in later, undesirable behavior does not necessarily prove that he is not sorry for an earlier offense, but it can shed light on the sincerity of a defendant’s claims of remorse. U.S. v. Byrd, 76 F.3d 194 (8th Cir. 1996).
8th Circuit denies acceptance reduction based on marijuana use while on pretrial release. (494) While on release pending a drug trial, defendant submitted ten urine specimens which tested positive for marijuana use. The Eighth Circuit upheld the denial of a § 3E1.1 acceptance of responsibility reduction based on defendant’s marijuana use while on pretrial release. Although marijuana was not the drug of the offense of conviction, it is a controlled substance, and defendant’s offense was a controlled substance offense. The district court did not abuse its discretion in taking the ten positive test results into account. U.S. v. Walter, 62 F.3d 1082 (8th Cir. 1995).
8th Circuit denies reduction to defendant who committed same offense while on bond. (494) Defendant pled guilty to using a counterfeit credit card and the government agreed that he was entitled to an acceptance of responsibility reduction. The government later learned that while on bond defendant conspired with others to use additional counterfeit credit cards. Defendant argued he was entitled to an acceptance of responsibility reduction because he acknowledged the facts that supported the charges and acknowledged the illegality of those acts. The Eighth Circuit upheld the denial of the reduction based on defendant’s commission of the same type of offense while on bond. U.S. v. Nguyen, 52 F.3d 192 (8th Cir. 1995).
8th Circuit denies acceptance of responsibility reduction for drug use while on bond for drug offense. (494) Defendant pled guilty to conspiracy to manufacture and distribute methamphetamine. While released on bond, defendant twice tested positive for drug use. The Eighth Circuit approved the denial of an acceptance of responsibility reduction based on defendant’s drug use while out on bond. A defendant’s related criminal conduct while free on bond can be considered in determining acceptance of responsibility. Continued drug use is related to the offense of conspiring to manufacture and distribute that drug. The court did not determine whether continuing, unrelated criminal conduct may be grounds for denying the reduction. U.S. v. Poplawski, 46 F.3d 42 (8th Cir. 1995).
8th Circuit denies reduction to defendant who fled from custody. (494) Defendant was originally indicted on mail fraud charges. He failed to appear at a show cause hearing, and subsequently pled guilty to five separate charges stemming from both his failure to appear and his fraudulent conduct. The 8th Circuit held that the facts of the case, including defendant’s flight from custody, supported the district court’s decision to deny defendant a reduction for acceptance of responsibility. U.S. v. Reetz, 18 F.3d 595 (8th Cir. 1994).
8th Circuit upholds post-conviction flight as basis for obstruction and denial of acceptance credit. (494) Pending sentencing, defendant was released on her own bond. After testing positive for drugs, she abandoned her family and fled to California. The 8th Circuit held that defendant’s flight to California before sentencing was sufficient to deny her a reduction for acceptance of responsibility and to impose an enhancement for obstruction of justice. U.S. v. Shinder, 8 F.3d 633 (8th Cir. 1993).
8th Circuit denies acceptance of responsibility reduction because defendant continued illegal conduct after questioning by INS agents. (494) Defendant, a previously deported alien, was arrested on unrelated charges and admitted to INS agents that he had illegally reentered the United States and had used a false social security number to obtain welfare benefits. Several months later he again used the false number to obtain benefits. A jury found him guilty of illegally entering the United States and using a false social security number. The 8th Circuit affirmed the denial of a reduction for acceptance of responsibility, since defendant’s continued illegal use of the social security number after his admissions to the INS was inconsistent with a genuine acceptance of responsibility. U.S. v. Unzueta-Gallarso, 966 F.2d 390 (8th Cir. 1992).
8th Circuit denies acceptance of responsibility reduction to defendant who did not cease illegal activities. (494) Defendant argued that he was entitled to a reduction for acceptance of responsibility based upon his confession shortly after arrest and his statements to police. The 8th Circuit affirmed the refusal to grant the reduction. A sentencing court’s findings in this areas are reversed only if they are “without foundation.” Defendant was not entitled to the reduction because he neither pled guilty to his crimes nor voluntarily stopped his illegal activities. U.S. v. Jones, 965 F.2d 1507 (8th Cir. 1992).
8th Circuit denies reduction to defendant who did not accept responsibility until after he was convicted in absentia. (494) Defendant disappeared before the 7th day of trial and was convicted in absentia. He was then rearrested and cooperated in the government’s efforts to apprehend others. In denying defendant a reduction for acceptance of responsibility, the district court commented “I never understood what’s the value of giving acceptance of responsibility for a person who waits to see if they are convicted and then decides whether they accept responsibility.” The 8th Circuit upheld the denial of the reduction, finding that the district court did not punish defendant for exercising his right to a trial. The district court had noted that defendant’s acceptance was untimely because it did not occur until after he was convicted in absentia after fleeing his trial, and this was not an extraordinary case in which a defendant both obstructs justice and accepts responsibility. U.S. v. Askew, 958 F.2d 806 (8th Cir. 1992).
8th Circuit affirms denial of acceptance of responsibility reduction to defendant who failed to name source. (494) Defendant contended that the district court erred in denying him a reduction for acceptance of responsibility because he refused to name his source. He claimed that he could not reveal his source out of fear for his family, but that other factors demonstrated his acceptance. The 8th Circuit affirmed the district court’s action. Defendant not only failed to name his source, he “bordered on perjuring himself” at the plea hearing. Moreover, while awaiting sentencing, defendant tested positive for cocaine use in violation of his bond. U.S. v. Eberspacher, 936 F.2d 387 (8th Cir. 1991).
8th Circuit upholds enhancement for offense committed on bond and denial of credit for acceptance of responsibility. (494) Based on defendant’s series of arrests both before and after being arrested on the instant offense, the district court denied defendant a reduction for acceptance of responsibility. Defendant also received a three-level enhancement under guideline § 2J1.7 because the instant offense was committed while he was released on bond. The 8th Circuit affirmed, finding no impermissible double counting. The denial of the reduction for acceptance of responsibility was based on his continued criminal conduct, and not his release status. U.S. v. Hibbert, 929 F.2d 434 (8th Cir. 1991).
8th Circuit refuses acceptance of responsibility reduction despite government admission that defendant did not lie. (494) When defendant was asked about his cocaine source and to whom he intended to deliver his cocaine, defendant expressed his belief that a government informant was his source and that the person to whom he was to deliver the cocaine did not exist because the entire deal was a government set-up. The government claimed that both of these statements were erroneous. The district court denied defendant a reduction for acceptance of responsibility in part because defendant lied to the probation officer regarding the details of his offense. At oral argument, the government conceded that nothing in the record showed that defendant actually lied, other than the fact that his version of the events was erroneous. The 8th Circuit upheld the denial of the reduction, finding that the district court based its denial on broader grounds than its finding that defendant had lied. Chief Judge Lay, dissenting, would have remanded the case to the district court for reevaluation in light of the government’s admission that defendant did not lie. U.S. v. Morales, 923 F.2d 621 (8th Cir. 1991).
8th Circuit denies acceptance of responsibility reduction to defendant who escaped custody. (494) After pleading not guilty by reason of a mental defect to a robbery charge, defendant escaped from custody. After defendant was apprehended, he changed his plea to guilty with respect to both the robbery charge and the new escape charge. The 10th Circuit upheld the district court’s denial of a reduction for acceptance of responsibility based on defendant’s escape. The escape “clearly show[ed] that he did not accept responsibility for his criminal conduct.” U.S. v. Cox, 921 F.2d 772 (8th Cir. 1990).
8th Circuit finds that defendant who ran from police did not accept responsibility. (494) Police officers went to defendant’s home to question him about a bank robbery. As his girlfriend opened the door, defendant ran out. He was caught later that night after a foot chase around town. Although defendant voluntarily confessed to the crime immediately after his arrest, the 8th Circuit upheld the district court’s finding that defendant did not accept responsibility. The court found it relevant that “defendant did not voluntarily terminate his illegal conduct or surrender before arrest.” U.S. v. Casal, 915 F.2d 1225 (8th Cir. 1990).
8th Circuit holds denial of acceptance of responsibility proper where defendant dealt drugs while awaiting disposition of case. (494) Despite guilty plea, expression of remorse and asking for drug treatment, the district court denied reduction for acceptance of responsibility because defendant continued to deal cocaine while on bond and awaiting disposition of case. The 8th Circuit found that the denial of the reduction was proper. U.S. v. Wivell, 893 F.2d 156 (8th Cir. 1990).
8th Circuit holds flight, concealment, and failure to surrender are proper grounds for denial of acceptance of responsibility reduction. (494) The 8th Circuit held that it was proper for the District Court to deny an acceptance of responsibility adjustment for a defendant who fled, hid, and failed to voluntarily surrender even after he learned that his victim had died as a result of the stabbing inflicted by the defendant. The district court was not required to follow the probation officer’s recommendation that the benefit was warranted. U.S. v. Johnson, 879 F.2d 331 (8th Cir. 1989).
9th Circuit finds no error in denial of acceptance for failure to appear at sentencing. (494) After pleading guilty to a drug-trafficking offense, defendant failed to appear at sentencing. When he was apprehended, defendant pleaded guilty to failure to appear, in violation of 18 U.S.C. § 3146. At the consolidated sentencing for defendant’s drug-trafficking and failure to appear convictions, the district court declined to give defendant an acceptance of responsibility reduction on the drug-trafficking offense because defendant failed to appear at sentencing for the drug-trafficking offense. Defendant argued that the district court erred because he had failed to appear at the original drug-trafficking sentencing because his grandfather was ill in Mexico. The Ninth Circuit held that the district court did not err in denying defendant a reduction for acceptance of responsibility. U.S. v. Rosas, 615 F.3d 1058 (9th Cir. 2010).
9th Circuit says unrelated criminal conduct may show lack of acceptance of responsibility. (494) Defendant pleaded guilty to being a felon in possession of a firearm. While awaiting sentencing at a county jail, defendant was involved in a physical altercation in which he played a “culpable role.” At sentencing, the district court held that the incident showed that defendant had failed to accept responsibility and declined to give defendant a downward adjustment on that ground. The Ninth Circuit held that a district court may, in its discretion, consider criminal activity unrelated to the offense of conviction in evaluating whether a defendant has voluntarily withdrawn from criminal conduct for purposes of granting a sentencing reduction for acceptance of responsibility. U.S. v. Mara, 523 F.3d 1036 (9th Cir. 2008).
9th Circuit sets forth standard of review for government’s refusal to authorize third acceptance point. (494) A defendant may receive a third point for acceptance of responsibility only if the government files a motion stating that “the defendant has assisted authorities” by “timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial.” Defendant agreed to enter a conditional plea of guilty under which he could preserve his right to appeal his motion to dismiss the indictment. When the government declined to accept the conditional plea, defendant agreed to a bench trial on stipulated facts. At sentencing, the government declined to file a motion allowing defendant to receive the third acceptance-of-responsibility point. The Ninth Circuit held that a court may not override the government’s refusal to file a motion entitling a defendant to a third acceptance-of-responsibility point unless the government acts pursuant to an unconstitutional motive or reasons not rationally related to any legitimate governmental interest. U.S. v. Espinoza-Cano, 456 F.3d 1126 (9th Cir. 2006).
9th Circuit denies credit where actions and statements belied claim of remorse. (494) The sentencing judge was acutely aware of defendant’s dubious credibility because defendant had asked the judge for leniency in his earlier conviction for receiving child pornography. The judge apparently believed him at that time because he departed downward and sentenced him to five years of probation. One year into his probation, defendant sexually molested a thirteen-year old boy. While awaiting trial for the molestation charge, defendant made contact with what he believed was a fifteen-year old boy for sexual purposes. He was arrested and police seized his computer and collection of child pornography. In pleading guilty in state court to the child molestation offense, defendant refused to admit guilt and said he was pleading guilty only to take advantage of the prosecutor’s recommendation. Under these circumstances, the Ninth Circuit said it was “hardly surprising” that the district judge looked for affirmative evidence that defendant had accepted responsibility for the present child pornography conviction. Defendant’s “late and very limited letter” was “something, but not much.” The district court properly denied the reduction for acceptance of responsibility. U.S. v. Fellows, 157 F.3d 1197 (9th Cir. 1998).
9th Circuit holds that court may consider defendant’s continued criminal conduct as evidence of lack of remorse. (494) Four days before she entered her guilty plea, the defendant fraudulently purchased a new car using a false name and false credit information. She argued that the district court should not have considered this information in denying her credit for acceptance of responsibility, because it was not part of the offense with which she was charged, citing U.S. v. Perez-Franco, 873 F.2d 455 (1st Cir. 1989). Chief Judge Goodwin and Judges Sneed and Noonan noted that Perez has been rejected by at least two other circuits but found it unnecessary to resolve the issue. The district court did not base its denial of the credit on defendant’s failure to show contrition for the fraudulent purchase of the automobile. Instead the court simply relied on defendant’s continued criminal conduct “to belie her professions of remorse and acceptance of responsibility for the offense of conviction.” U.S. v. Cooper, 912 F.2d 344 (9th Cir. 1990).
10th Circuit denies acceptance reduction where defendant found in apartment with drugs. (494) While at a halfway house pending sentencing, defendant signed out for work and never returned. He remained at large past sentencing, and eventually was apprehended in an apartment containing drug manufacturing equipment. He signed a statement claiming responsibility for the manufacturing paraphernalia, but later contended that he made that statement only to protect his girlfriend. Defendant’s original PSR recommended a three-level acceptance of responsibility reduction, but the recommendation was rescinded after flight because at the time of his arrest he acknowledged ownership of the drug paraphernalia in his residence. The Tenth Circuit affirmed the denial of an acceptance of responsibility reduction. Although defendant argued that he claimed responsibility for the paraphernalia to protect his girlfriend from criminal charges, the only evidence before the court was an unsworn letter from defendant’s girlfriend to his attorney. Defendant turned down the court’s offer of an evidentiary hearing on the issue. Moreover, regardless of his actual responsibility for the paraphernalia, defendant was living in an apartment where methamphetamine was manufactured. U.S. v. Swanson, 253 F.3d 1220 (10th Cir. 2001).
10th Circuit says government did not breach plea agreement by advising court of post-plea misconduct. (494) The government agreed, as part of defendant’s plea agreement, not to oppose a three-level acceptance of responsibility reduction. While defendant was in custody awaiting sentencing, the government received FBI reports that defendant stabbed another prisoner. The government passed these reports on to the probation officer, who included the information in his PSR. Based on this information, the district court denied defendant the acceptance reduction. The Tenth Circuit held that the government did not breach the plea agreement by informing the court of defendant’s post-plea criminal conduct. The agreement could not be reasonably construed to bar the government from informing the sentencing court of conduct relevant to sentencing. The district court properly denied the reduction based on defendant’s criminal conduct while in prison awaiting sentencing. Note 2(b) says that voluntary withdrawal from criminal conduct is a relevant consideration in deciding whether to grant an acceptance of responsibility reduction. Joining the majority of circuits to address this issue, the Tenth Circuit held that a sentencing court may consider criminal conduct unrelated to the offense of conviction in determining whether a defendant has accepted responsibility. U.S. v. Prince, 204 F.3d 1021 (10th Cir. 2000).
10th Circuit says continued contact with former girlfriend showed no acceptance of responsibility. (494) After the end of tumultuous relationship, defendant repeatedly called, mailed letters to and sent flowers to his former girlfriend. He was convicted of using a telephone to communicate a threat after leaving a threatening message on her new boyfriend’s answering machine. The district court denied an acceptance of responsibility reduction because defendant continued to write letters to the girlfriend while released on bond. Defendant argued that his contacts with the girlfriend were not relevant because he never threatened her. The Tenth Circuit held that the court properly considered defendant’s determined efforts to contact the girlfriend as grounds for denying the § 3E1.1 reduction. The sentencing judge has a unique capacity to assess the defendant’s demeanor with regard to his acceptance of responsibility. U.S. v. Edgin, 92 F.3d 1044 (10th Cir. 1996).
10th Circuit denies reduction to defendant who continued illegal business after arrest. (494) Defendant pled guilty to conspiracy to manufacture explosives. The Tenth Circuit held that he was not entitled to an acceptance of responsibility reduction since he did not voluntarily terminate his criminal conduct. After his arrest, defendant sought to revive his business by ordering additional materials for the manufacture of explosives. His girlfriend also did not deserve an acceptance of responsibility reduction, since she attempted to minimize her role in the conspiracy despite her involvement in the manufacture of the explosive devices and her knowledge of the sales of these devices to third parties. Moreover, her denial of knowledge of the dangerousness of the explosive devices lacked credibility. U.S. v. Gacnik, 50 F.3d 848 (10th Cir. 1995).
10th Circuit upholds denial of reduction despite post-offense rehabilitation efforts. (494) The 10th Circuit upheld the denial of a reduction for acceptance of responsibility, despite defendant’s post-offense rehabilitation efforts. Although defendant admitted he sold cocaine, he never accepted his culpability. On appeal, defendant continued to contest his guilt, blaming the government for inducing him to act. At the time defendant was sentenced, the guidelines did not include post-offense rehabilitative efforts as a factor in determining the defendant’s acceptance of responsibility. Moreover, although the court did not think defendant’s drug rehabilitation demonstrated an acceptance of responsibility for his crimes, the court considered the rehabilitation a mitigating factor and sentenced defendant at the bottom of guideline range. U.S. v. Hoenscheidt, 7 F.3d 1528 (10th Cir. 1993).
11th Circuit holds that defendant should not be denied acceptance reduction based on pre-indictment conduct. (494) The district court found that defendant had not accepted responsibility because after his initial arrest for possession of a firearm (December 2003), he committed the same offense several months later (May 2004). Defendant argued that the focus should be on his conduct after federal charges were brought, which did not happen until July 2004. There was no dispute that after the federal charges were brought, defendant “did everything right.” The Eleventh Circuit held the court should not have denied defendant the acceptance reduction. A defendant’s conduct following earlier state charges, at least where that conduct occurred before he knows that federal charges were forthcoming, ought not to vitiate the effect of his otherwise exemplary acceptance of responsibility once the federal charges are filed. The commencement of federal charges against the defendant should have been the starting point for measuring his acceptance of responsibility. U.S. v. Wade, 458 F.3d 1273 (11th Cir. 2006).
11th Circuit denies reduction where defendant continued to use marijuana pending trial. (494) The district court denied defendant’s request for an acceptance of responsibility reduction because he admitted at sentencing that he had continued to use marijuana while the trial was pending. The Eleventh Circuit agreed that defendant’s continued use of illegal drugs was in part a continuation of the offense for which he was indicted and therefore the district court’s denial of the § 3E1.1 decrease was not clearly erroneous. U.S. v. Matthews, 168 F.3d 1234 (11th Cir. 1999).
11th Circuit denies acceptance of responsibility based on brief drug use while on pretrial release. (494) The district court denied defendant an acceptance of responsibility reduction because he tested positive for drug use while on pre-trial release. Defendant argued that his two “indiscretions” were insufficient to deny him the reduction, because during a two year period of pre-trial release, he was subjected to bi-weekly urinalysis, but only tested positive after his initial release. The Eleventh Circuit disagreed. To adopt defendant’s argument would give any defendant one or two free passes to violate the law or breach pre-trial release conditions. Moreover, besides using drugs while on bond, defendant lied twice to his pretrial services officer about using them. U.S. v. Hromada, 49 F.3d 685 (11th Cir. 1995).
11th Circuit upholds denial of reduction for crime committed while awaiting sentencing. (494) Defendant filed false income tax returns claiming refunds. The district court denied defendant a reduction for acceptance of responsibility because he had used marijuana while on release pending sentencing. Defendant argued that this was inappropriate, since his marijuana use was unrelated to his offense of conviction. The 11th Circuit upheld the denial, holding that a district court is authorized to consider subsequent criminal conduct, even if it is unrelated to the offense of conviction, in determining whether a reduction for acceptance of responsibility is appropriate. U.S. v. Pace, 17 F.3d 341 (11th Cir. 1994).
11th Circuit denies acceptance of responsibility after defendant tested positive for marijuana. (494) Defendant argued that he was entitled to a reduction for acceptance of responsibility because he pled guilty and agreed to testify against his co-defendants at trial if necessary. Moreover, the government recommended a reduction. The 11th Circuit upheld the denial of the reduction, in light of evidence that defendant had tested positive for marijuana while on probation in a related state case. A defendant’s continued drug use is a proper basis for denying an acceptance of responsibility reduction. U.S. v. Thompson, 972 F.2d 201 (8th Cir. 1992).
11th Circuit finds no acceptance of responsibility where defendant continued to use cocaine after arrest. (494) Although defendant had voluntarily provided information about other postal thefts he had committed, the district court refused to reduce his sentence for acceptance of responsibility because he had continued to use cocaine after his arrest. The 11th Circuit affirmed, agreeing that the defendant’s continued use of cocaine “cast doubt on the sincerity of his avowed acceptance of responsibility.” U.S. v. Scroggins, 880 F.2d 1204 (11th Cir. 1989).
11th Circuit finds defendant’s actions supported trial court’s denial of acceptance of responsibility adjustment. (494) A drug defendant appealed her sentence, claiming that the district court erroneously refused to adjust her base offense level due to her acceptance of responsibility. Applying a “higher deferential” standard of review, the 11th Circuit affirmed the denial. The factual basis for the finding was not without foundation. Although the defendant expressed remorse for her crimes, she had refused to implicate other participants and had continued to use drugs while on bond. U.S. v. Davis, 878 F.2d 1299 (11th Cir. 1989).
Indiana District Court holds no acceptance of responsibility where post-arrest conduct showed lack of candor. (494) To qualify for a two-level reduction, a defendant must make a “clear” showing of acceptance of responsibility. However, he need not necessarily confess the moral wrongfulness of his conduct. The court here refused to give the reduction due to (1) the defendant’s lack of candor in debriefings by the government and (2) positive drug tests while on pretrial release. U.S. v. Weidner, 703 F.Supp. 1350 (N.D. Ind. 1988).