§482 Acceptance of Responsibility: As to “Related” Conduct
8th Circuit upholds denial of acceptance credit where defendant minimized relevant conduct. (482) Defendant pleaded guilty to receiving child pornography. At sentencing, the district court denied him any reduction for acceptance of responsibility under §3E1.1, because defendant falsely denied and minimized relevant conduct, in particular that his Dropbox account contained child pornography. The Eighth Circuit affirmed, ruling that defendant’s “frivolous factual contentions and his attempts to minimize his conduct” supported the denial of acceptance credit. U.S. v. Hennings, __ F.4th __ (8th Cir. Jan. 21, 2022) No. 20-3483.
8th Circuit found defendant’s denial of relevant conduct inconsistent with acceptance of responsibility. (482) Defendant pleaded guilty to possession of a firearm by a felon. In a presentence interview, defendant admitted possessing another firearm. At sentencing, he denied that he possessed this firearm. The district court rejected this objection and enhanced defendant’s offense level because he possessed two firearms other than the one that led to his plea. The district court denied defendant an acceptance-of-responsibility reduction because defendant “frivolously contest[ed]” relevant conduct. The Eighth Circuit found that the district court had not erred in finding that defendant denied relevant conduct and that denying relevant conduct was inconsistent with acceptance of responsibility. U.S. v. Goodson, __ F.3d __ (8th Cir. Apr. 15, 2019) No. 18-1515.
Commission allows acceptance reduction despite unsuccessful challenge to relevant conduct. (482) Citing concerns that some courts had interpreted Application Note 1(A) to §3E1.1 to preclude a reduction for acceptance of responsibility where the defendant unsuccessfully challenges relevant conduct, the Commission amended the note to add the words, “but the fact that a defendant’s challenge is unsuccessful does not necessarily establish that it was either a false denial or frivolous.” Proposed Amendment 6, effective Nov. 1, 2018.
1st Circuit rejects acceptance reduction for defendant who denied relevant conduct and obstructed justice. (482)(492) Defendant pled guilty to bank robbery. The district court applied an obstruction of justice enhancement based on letters defendant wrote to his girlfriend in which he provided her with a “script” of what to say if called to testify. It also denied him an acceptance of responsibility reduction because defendant did not admit to relevant conduct (possession of a screwdriver during the robbery), and because a finding of obstruction of justice generally indicated that acceptance of responsibility should not be given. Defendant conceded that an obstruction enhancement was appropriate, but argued that he should have received the acceptance reduction. The First Circuit found no error. Defendant claimed that his case was extraordinary because he “unambiguously acknowledged his wrongdoing and ceased criminal activities at the point of his change-of-plea.” However, the court’s finding that defendant had falsely denied possessing a screwdriver during the bank robbery cut against defendant’s claim that he “unambiguously acknowledged his wrongdoing.” The court also properly considered defendant’s conduct while incarcerated. U.S. v. D’Angelo, __ F.3d __ (1st Cir. Oct. 6, 2015) No. 14-1688.
5th Circuit denies acceptance reduction based on silence or refusal to answer questions about relevant conduct. (482)(484) Defendant pled guilty to marijuana charges. The PSR advised against an acceptance of responsibility reduction, noting that in his interview with probation officers, he initially said “he just wants to serve his time for the offense and go home, rather than answer questions about his involvement.” When he did agree to answer questions, he was hesitant to talk about the offense and minimized his involvement in the drug deliveries, even though the evidence indicated that his involvement was much greater. Defendant argued that it violated his rights under the Fifth Amendment to consider his silence or refusal to answer questions about relevant conduct when deciding whether to grant him an acceptance of responsibility reduction. Although the Supreme Court has deliberately left this question unresolved, the Fifth Circuit found that its binding precedent doomed defendant’s argument. In U.S. v. Mourning, 914 F.2d 699 (5th Cir. 1990), the Fifth Circuit held that rewarding a defendant who expresses contrition and cooperates with the government is not the same as compelling him to incriminate himself. Consequently, any inference that the district court drew from the defendant’s silence for purposes of §3E1.1 was permissible. U.S. v. Preciado-Delacruz, __ F.3d __ (5th Cir. Sept. 15, 2015) No. 14-11023.
7th Circuit denies acceptance reduction where defendant denied relevant conduct. (482) Defendant pled guilty to being a felon in possession of a firearms. Over defendant’s objection, the court applied an enhancement based on its finding that defendant had pointed the loaded gun at the head of Harris. Based on his denial of this conduct, the court also denied him a reduction for acceptance of responsibility, finding that the gun-pointing was relevant conduct. The Seventh Circuit upheld the denial of the acceptance reduction. Defendant seemed to concede that, had he actually pointed the firearm at Harris, his actions would constitute relevant conduct. Therefore, since the panel previously ruled that the court did not err in finding that defendant pointed the loaded firearm at Harris, it followed that the district court did not err in denying the acceptance of responsibility reduction. U.S. v. Sandidge, __ F.3d __ (7th Cir. Apr. 20, 2015) No. 14-1492.
4th Circuit rejects acceptance reduction where defendant denied mental state for uncharged offense. (482) Defendant pled guilty to being a felon in possession of a firearm. The district court found that he had used the firearm in an attempted murder, and therefore applied the offense level for attempted murder. See §2K2.1(c)(1). Defendant disputed that he had the requisite mens rea for attempted murder and argued that the guideline for aggravated assault should have applied. Because defendant made this argument, the district court concluded that defendant had falsely denied relevant conduct, and declined to give him a reduction for acceptance of responsibility. The Fourth Circuit affirmed, holding that by disputing that he possessed the mental state necessary to commit the cross-referenced (but uncharged) offense of attempted murder, defendant disputed “relevant conduct.” Acting with a particular mental state constitutes relevant conduct under §1B1.3(a)(1)(A). Thus, the court properly denied defendant credit for acceptance of responsibility. U.S. v. Burns, __ F.3d __ (4th Cir. Feb. 13, 2015) No. 13-4662.
1st Circuit says failure to give acceptance credit was offset by failure to find obstruction. (482) Defendant was convicted of smuggling aliens into the United States. He was denied a reduction for acceptance of responsibility because he refused to admit that he had used a gun and had forced passengers from the boat, resulting in two deaths. The 1st Circuit found it unnecessary to decide whether under the old version of § 3E1.1 a reduction could be denied based on a refusal to admit relevant conduct. Even if the two point reduction should have been given, defendant’s false denial required a two point increase for obstruction of justice under § 3C1.1. The two errors offset each other. The fact that the government did not seek the 3C1.1 enhancement did not prevent the court from taking note of it in this context. U.S. v. Hernandez-Coplin, 24 F.3d 312 (1st Cir. 1994).
1st Circuit rejects acceptance of responsibility where defendant obstructed justice. (482) The 1st Circuit found defendant did not win the “uphill battle” of proving that he was wrongly denied a reduction for acceptance of responsibility, in light of his obstruction of justice. The only thing extraordinary about his case was his “temerity in continuing to press” for the reduction notwithstanding his failed effort to suborn perjury. He was not denied the credit for refusing to admit relevant conduct. While a defendant is not required to affirmatively admit relevant conduct, a court may properly consider whether a defendant who “mendaciously denies” relevant conduct has acted in a manner inconsistent with acceptance of responsibility. U.S. v. Gonzales, 12 F.3d 298 (1st Cir. 1993).
1st Circuit holds judge did not require defendant to accept responsibility for related conduct. (482) The 1st Circuit rejected defendant’s claim that he was denied a reduction because he refused to accept responsibility for the conduct underlying dismissed counts. Defendant attempted to convince the court that he was a mere “tagalong” in a conspiracy orchestrated by his co-defendant. Defendant was actually a full partner. The lower court denied the reduction because defendant attempted to minimize his involvement in the offense of conviction. U.S. v. Ocasio-Rivera, 991 F.2d 1 (1st Cir. 1993).
1st Circuit rules court did not deny acceptance of responsibility reduction based upon uncharged conduct. (482) The 1st Circuit rejected defendant’s claim that the district court improperly denied defendant a reduction for acceptance of responsibility based upon his failure to accept responsibility for uncharged criminal conduct. The Rule 11 hearing did not indicate that the judge believed that defendant was charged with bank fraud rather than making false statements to a bank. The two “fraud” references the judge made during the sentencing hearing could not be considered error in a case involving the making of false statements. U.S. v. Gregorio, 956 F.2d 341 (1st Cir. 1992).
1st Circuit denies credit for acceptance of responsibility based on defendant’s continued criminal behavior. (482) 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).
1st Circuit holds defendant need only accept responsibility on the counts to which he pled guilty, not the dismissed counts. (482) Defendant pled guilty to one count the other 4 were dismissed. The District Court refused to grant him a two point decrease because he refused to accept responsibility for the dismissed counts. The 1st Circuit held that the sentencing court’s interpretation of the guidelines was erroneous, and remanded the case for a determination as to whether the defendant had sincerely accepted responsibility on the count to which he pled. A reduction cannot be predicated upon the defendant making self-incriminating statements regarding counts which were to be dismissed pursuant to a plea agreement. The court stated that any other holding would provide little incentive for a guilty plea. U.S. v. Perez-Franco, 873 F.2d 455 (1st Cir. 1989).
2nd Circuit upholds acceptance reduction despite false denial of relevant conduct. (482) The government argued that in light of defendant’s testimony falsely denying his involvement in relevant conduct, it was error for the district court to find that he demonstrated acceptance of responsibility. The Second Circuit upheld the reduction, since a false denial of relevant conduct is simply one factor among many to be weighed by a district court making the acceptance of responsibility determination. Note 3 suggests weighing the evidence favoring acceptance of responsibility against evidence of conduct inconsistent with acceptance of responsibility. The judge’s careful determination here, based on evidence such as defendant’s remorse, his guilty plea, and his confession on the stand, was not without foundation. U.S. v. Ruggiero, 100 F.3d 284 (2d Cir. 1996).
2nd Circuit says reduction may not be denied for refusal to help recover other guns. (482) Although defendant admitted that he illegally purchased and resold 36 firearms, he only pled guilty to offenses involving five of them. The 2nd Circuit found that it was improper to deny defendant a reduction for acceptance of responsibility because he refused to assist the government in the recovery of the other 31 firearms. The district court looked beyond the offense of conviction in evaluating defendant’s acceptance of responsibility; however, neither application note 1(a) nor 1(e) to § 3E1.1 empowered it to do so. Under circuit caselaw and application note 1(a), effective November 1, 1992, a defendant is only required to accept responsibility for the offense of conviction. Note 1(e), which allows a court to consider a defendant’s assistance in the recovery of the fruits and instrumentalities of the offense, did not support the denial either. U.S. v. Austin, 17 F.3d 27 (2nd Cir. 1994).
2nd Circuit denies reduction for failure to tell whole truth about offense of conviction. (482) Defendant was convicted of conspiracy to import cocaine after attempting to check on a canister of cocaine attached to the hull of a ship which had recently arrived in the U.S. The court denied defendant a reduction for acceptance of responsibility because it did not believe his claim that he planned only to examine the canister and not to remove it from the hull. The 2nd Circuit rejected defendant’s claim that the district could improperly denied the reduction because he failed to admit related conduct. The denial was based on defendant’s failure to tell the whole truth about the offense of conviction. The plan to remove the canister was not a separate offense from a plan to examine it. They were both encompassed by the charge of conspiracy to import cocaine. U.S. v. Reyes, 9 F.3d 275 (2nd Cir. 1993).
2nd Circuit denies acceptance of responsibility where judge disbelieved defendant’s explanation. (482) Defendant organized a dockside diving expedition to the hull of a ship to which a canister of cocaine had been affixed. He claimed that his sole objective was to determine whether the canister was still in place, and not to remove it and bring it ashore. The district court found that although defendant had accepted responsibility for the bare essentials of the offense, his explanation was “unbelievable.” Therefore he denied credit for acceptance of responsibility. The 2nd Circuit affirmed, finding no violation of defendant’s 5th Amendment rights against self-incrimination. The court rejected defendant’s position that a court may not look beyond the acts disclosed by the defendant at the plea allocution. Although a court may not compel testimony with respect to other offenses, it may require a candid and full explanation of the offense to which defendant pled guilty, and need not accept lies and equivocation. U.S. v. Reyes, 9 F.3d 275 (2nd Cir. 1993).
2nd Circuit directs reconsideration of acceptance of responsibility in light of remand on drug quantity issue. (482) The district court had denied defendant a reduction for acceptance of responsibility since defendant had only acknowledged responsibility for two kilograms of cocaine, and the jury had found defendant responsible for five kilograms. However, the 2nd Circuit had remanded the case for the sentencing judge to make its own independent determination of the quantity of cocaine involved in the offense. Therefore, the appellate court directed the district court to reassess defendant’s entitlement to an acceptance of responsibility reduction in light of its own findings. U.S. v. Jacobo, 934 F.2d 411 (2nd Cir. 1991).
2nd Circuit affirms denial of acceptance of responsibility reduction despite reliance on improper reason. (482) Defendant contended that the district court improperly denied him a reduction for acceptance of responsibility based upon his failure to accept conduct for which he was not convicted. The 2nd Circuit agreed that this reason would be improper, but affirmed the district court’s action. “[A] denial of a reduction for acceptance of responsibility may be affirmed where a district court articulates permissible as well as impermissible reasons for the denial.” Here, the district court also denied defendant the reduction because he failed to show remorse or acknowledge the wrongfulness of the conduct for which he was convicted. U.S. v. Cousineau, 929 F.2d 64 (2nd Cir. 1991).
2nd Circuit holds that defendant need not accept responsibility for crimes of which he was not convicted, nor for crimes of codefendants. (482) Relying on its decision in U.S. v. Oliveras, 905 F.2d 623 (2nd Cir. 1990) the 2nd Circuit held that the guidelines do not require a defendant to accept responsibility for crimes other than those to which he has pleaded guilty, or of which he has been found guilty, in order to earn credit for acceptance of responsibility. Moreover, the court found “problematic” the district court’s reliance on defendant’s refusal to acknowledge that he had informed his girlfriend of the contents of the narcotics package. The district court did not clearly state “its rationale for viewing this refusal as bearing on [defendant]’s acknowledgement of his own responsibility as contrasted with that of [the codefendant girlfriend].” U.S. v. Santiago, 906 F.2d 867 (2nd Cir. 1990).
2nd Circuit rules that defendant need accept responsibility only for “related conduct,” not “relevant conduct.” (482) The officers alleged that defendant dropped eight additional bags of PCP from his pocket when he was arrested. The defendant disputed this allegation The 2nd Circuit found that the defendant would not be required to accept responsibility for the eight bags of PCP in order to be entitled to an adjustment for acceptance of responsibility. The court distinguished between § 3E1.1’s “related conduct” and § 1B1.3’s “relevant conduct.” Although a sentencing court may consider all relevant conduct in determining the offense level, it cannot require a defendant to accept responsibility for all relevant conduct. To impose a such a requirement would raise distinct 5th Amendment questions. However, the case was remanded because the record was not clear as to the basis for the district court’s denial of the adjustment for acceptance of responsibility. U.S. v. Oliveras, 905 F.2d 623 (2nd Cir. 1990).
2nd Circuit rules that requiring acceptance of responsibility for dismissed counts violated 5th Amendment. (482) Defendant argued that the trial court violated his 5th Amendment rights against self-incrimination by requiring him to accept responsibility for counts which had been dismissed as part of his plea agreement. The 2nd Circuit agreed, finding that unless defendant’s statements were immunized from use in subsequent criminal prosecutions, the effect of requiring him to accept responsibility for crimes other than those to which he pled guilty or which he had been found guilty constituted a penalty for refusing to incriminate himself in violation of the 5th Amendment. The court found that just because the prosecution had agreed to dismiss counts did not remove the risk of self incrimination posed by admissions made to a probation officer. Additionally, a reasonable interpretation of guideline § 3E1.1(a) and its 1988 amendment supported this interpretation. U.S. v. Oliveras, 905 F.2d 623 (2nd Cir. 1990).
2nd Circuit holds that admission of involvement in illegal gambling activity does not constitute acceptance of responsibility for engaging in extortion. (482) In a handwritten letter to the court presented prior to sentencing, a convicted extortionist admitted his responsibility for involvement in an illegal gambling enterprise. He claimed that the District Court therefore erred in denying him a two point offense level reduction for acceptance of responsibility. The 2nd Circuit disagreed, holding that the denial was proper because the defendant never admitted responsibility for committing the charged offenses, i.e. using extortion to collect gambling debts. U.S. v. Lanese, 890 F.2d 1284 (2nd Cir. 1989).
2nd Circuit holds that defendant was not entitled to acceptance of responsibility adjustment despite his partial admissions. (482) The 2nd Circuit upheld the denial of an acceptance of responsibility adjustment, without discussion, despite the fact that the defendant admitted to possessing cocaine and butane on board a commercial airliner. It found no basis in the record for disturbing the trial judges’ findings. U.S. v. Moskowitz, 888 F.2d 223 (2nd Cir. 1989).
3rd Circuit approves acceptance reduction to one count even though defendant went to trial on other count. (482) Defendant was charged with bank robbery, 18 U.S.C. § 2113, and carrying a firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c). He pled guilty to bank robbery, but went to trial and was convicted of the § 924(c) charge. The district court granted defendant an acceptance of responsibility, in spite of the fact that he contested the § 924(c) charge. The government argued that the district court failed to take into account that defendant denied “relevant conduct,” as defined in Note 1(a) to § 3E1.1. However, Note 1(a) does not establish a per se bar to the grant of an acceptance reduction. Even if defendant falsely denied, or frivolously contested relevant conduct, this is simply “an appropriate consideration” for the court to take into account in determining whether a defendant qualifies for the reduction, but it is not the only consideration. The court did not improperly disregard Note 2 to § 3E1.1, which states that the reduction should not be granted to a defendant who proceeds to trial and denies factual elements of guilt. The court adjusted defendant’s offense level only as to the robbery count, and defendant put the government to its burden of proof on the other count. Where counts are not grouped and credit may be granted to them separately, there is no error when the district court grants the reduction as to a count that defendant did not challenge. U.S. v. Williams, 344 F.3d 365 (3d Cir. 2003).
3rd Circuit says 3-level acceptance reduction cannot be denied for refusal to admit acquitted conduct. (482) Defendant was willing to plead guilty to counts one and two, but refused to plead guilty to count three. The jury ultimately convicted him of the first two counts, but acquitted him on the third count. The district court granted defendant a two level acceptance of responsibility reduction, but refused to grant an additional one level decrease based in part on defendant’s refusal to plead guilty on the third count. The 3rd Circuit, relying on U.S. v. Rodriguez, 975 F.2d 999 (3rd Cir. 1992), reversed. The court appeared to have incorrectly considered defendant’s refusal to admit conduct not comprising part of the offenses of conviction. A defendant is not required to affirmatively admit relevant conduct beyond the offense of conviction in order to obtain an acceptance of responsibility reduction. U.S. v. Fields, 39 F.3d 439 (3rd Cir. 1994).
3rd Circuit holds section 3E1.1 requires defendant to accept responsibility for relevant conduct. (482) Defendant pled guilty to unarmed robbery, but was found, despite his denials, to possess a gun during the robbery. The district court relied upon his denials of gun possession to deny him a reduction for acceptance of responsibility. The 3rd Circuit held that guideline section 3E1.1 authorizes the sentencing court to consider related conduct as well as conduct constituting the offense of conviction in determining whether a defendant has accepted responsibility. U.S. v. Frierson, 945 F.2d 650 (3rd Cir. 1991).
4th Circuit rejects acceptance reduction where defendant denied relevant conduct. (482) Defendant argued that she deserved an acceptance of responsibility reduction even though she went to trial because she never contested the fact underlying her false statement convictions and merely argued as a matter of law that her conduct did not violate the statute in question. However, the Fourth Circuit ruled that the court properly denied the reduction based on defendant’s false denials of relevant conduct. In a 1998 FBI interview, defendant admitted both that she had observed her father endorse several checks with her brother’s signature, and that it was likely that she also fraudulently endorsed some. After trial, however, she admitted to the probation officer only that she had witnessed her father sign these checks for her brother, thus implicitly denying her own previously acknowledged role in the forgeries. A denial of relevant conduct is inconsistent with acceptance of responsibility. Elliott v. U.S., 332 F.3d 753 (4th Cir. 2003).
4th Circuit denies reduction where defendant did not admit dismissed counts. (482) Defendant pled guilty to one count and two other counts were dismissed. She argued that the district court’s election not to consider the substance of the dismissed counts as relevant conduct precluded the court from considering that conduct in denying credit for acceptance of responsibility. The 4th Circuit rejected her argument, finding that the scope of the acceptance of responsibility inquiry is not necessarily coextensive with the concept of relevant conduct. The district court was not required to grant defendant an acceptance of responsibility reduction simply because it exercised its discretion to find that her involvement in the uncharged offenses did not justify increasing her sentence. U.S. v. Choate, 12 F.3d 1318 (4th Cir. 1993).
4th Circuit rejects 1st Circuit’s holding that defendant need only accept responsibility for count of conviction. (482) Rejecting the opinion in U.S. v. Perez-Franco, 873 F.2d 455 (1st Cir. 19898), the 4th Circuit agreed with the 2nd and 5th Circuits that in order to obtain credit for acceptance of responsibility under U.S.S.G. § 3E1.1, “a defendant must first accept responsibility for all of his criminal conduct,” not just the count to which he pled guilty. See U.S. v. Moskowitz, 888 F.2d 223 (2nd Cir. 1989) and U.S. v. Tellez, 882 F.2d 141 (5th Cir. 1989). Here the defendant admitted he was guilty of simple possession of cocaine but did not accept responsibility for his intent to distribute it. He argued that to have done so “would have rendered a successful appeal a hollow victory.” The 4th Circuit upheld the district court’s finding that he did not accept responsibility as not clearly erroneous. U.S. v. Gordon, 895 F.2d 932 (4th Cir. 1990).
5th Circuit denies acceptance reduction for falsely denying relevant conduct. (482) Defendant pled guilty to failing to create and maintain records pertaining to an individual who was the object of a sexually explicit photo. The district court refused to grant defendant an acceptance of responsibility reduction because defendant denied that the person depicted in the photo was a minor. Defendant argued that because the offense to which he pled guilty applies to all sexually explicit photos, regardless of the age of the subject, his denial that the individual was a minor was irrelevant to his acceptance of responsibility. However, defendant’s production of child pornography, while not an element of the offense of conviction, allegedly occurred during the commission of the offense. It was thus relevant conduct. Under Note 1 to § 3E1.1, defendant was not required to affirmatively admit that the subject was a minor in order to receive the reduction. However, a false denial of such conduct is grounds for denying the reduction. The government presented evidence that the person depicted was a minor, contradicting defendant’s denial. Because the district court had a basis for concluding that defendant falsely denied relevant conduct, the Fifth Circuit upheld its refusal to grant defendant an acceptance of responsibility reduction. U.S. v. Pierce, 237 F.3d 693 (5th Cir. 2001).
5th Circuit upholds acceptance credit even though defendant did not admit relevant conduct. (482) Defendant was convicted of harboring several illegal aliens in his house on February 28 and March 20, 1996. His PSR recounted several incidents of alien harboring, involving 36 illegal aliens. Defendant did not object to the relevant conduct recitations in the PSR. The PSR recommended an acceptance of responsibility reduction based on defendant’s acknowledgement of responsibility, his expressions of remorse and his entry of a guilty plea. The government argued that defendant admitted to housing only 14 illegal aliens rather than the 36 detailed in the PSR. The Fifth Circuit deferred to the district court’s decision to grant the acceptance of responsibility reduction. There is no requirement that a defendant volunteer or affirmatively admit relevant conduct beyond the offense of conviction. Both the probation officer and the district judge, who had the opportunity to observe the defendant’s demeanor, believed that defendant had accepted responsibility for his acts. An appellate court should not substitute its “remote and detached reading of the cold record” for the judgment of the probation officer and judge who directly interacted with the defendant. U.S. v. Salinas, 122 F.3d 5 (5th Cir. 1997).
5th Circuit finds no basis to deny credit where defendant did not falsely deny or contest relevant conduct. (482) Defendant pled guilty to transporting an alien within the U.S. He contended that he was entitled to an acceptance of responsibility reduction because he pled guilty and admitted all of the conduct comprising the offense charged. The government contended that defendant failed to admit that he negotiated for and received fees for the release of the some of the aliens. The Fifth Circuit held that these acts were additional relevant conduct, rather than conduct comprising the offense charged, and therefore defendant had no duty to affirmatively admit those acts. Defendant did not deny that he actually received the fees. His statement that any money he collected was for the benefit of others was offered in response to the recommendation of a leadership enhancement. It did not constitute a false or frivolous denial of relevant conduct. Thus, there was no foundation for the court’s refusal to grant the reduction. U.S. v. Patino‑Cardenas, 85 F.3d 1133 (5th Cir. 1996).
5th Circuit denies reduction for refusal to admit connection with additional cocaine in house. (482) Defendant and others sold crack cocaine from the same house. They were arrested after defendant sold 2 grams of crack to an undercover agent. An additional 3.9 grams were found on the floor of the house. The evidence suggested that this crack belonged to one of the other drug sellers, but defendant was held responsible for it based on her relationship with the other sellers. Although defendant admitted selling the drugs and admitted her relationship with the other sellers, the district court denied her a reduction for acceptance of responsibility because she refused to admit any connection with the drugs found in the house. The 5th Circuit affirmed, but noted that it might have reached a different conclusion if it had been the sentencing judge. U.S. v. Smith, 13 F.3d 860 (5th Cir. 1994).
5th Circuit requires defendant to accept responsibility for relevant conduct under pre-1992 guidelines. (482) Defendant admitted committing the offense of conviction, but refused to take responsibility for previous drug dealings. The 5th Circuit affirmed that under the pre-November 1, 1992 version of section 5E1.1, defendant was required to accept responsibility for all relevant conduct in order to be granted the reduction. Although the guideline was amended effective November 1, 1992 to delete this requirement, this amendment became effective after defendant was sentenced. The court said guideline changes generally should not be applied to cases in which the defendant was sentenced before the amendment took effect. U.S. v. Windham, 991 F.2d 181 (5th Cir. 1993).
5th Circuit denies reduction for refusal to discuss prior or subsequent drug activities. (482) Defendant contended for the first time in his reply brief that he should have received a reduction for acceptance of responsibility. The 5th Circuit noted that ordinarily it would not consider a new claim raised for the first time in a defendant’s reply brief, but that even if it were to address the issue, it would not disturb the district court’s decision. Defendant declined to discuss any prior or subsequent drug activities with his probation officer. Under the 1991 version of section 3E1.1, the version applicable at defendant’s sentencing, this was an appropriate reason to deny the reduction. U.S. v. Hoster, 988 F.2d 1374 (5th Cir. 1993).
5th Circuit finds that court adopted the presentence report’s recommendation on acceptance of responsibility. (482) The 5th Circuit rejected defendant’s argument that the district court failed to state at sentencing whether defendant deserved a reduction for acceptance of responsibility. The presentence report recommended against a reduction because defendant made only limited admissions of his involvement in the offense, denied his intent to purchase a larger quantity of drugs, refused to discuss the large quantity of cash found in the trunk of his car, and refused to discuss prior drug deals. Defendant objected to the presentence report’s recommendation, but did not put any facts into dispute. When a defendant objects to his presentence report but offers no rebuttal evidence to refute the facts, the district court is free to adopt the facts in the presentence report without further inquiry. By assigning defendant an offense level of 28, the court “obviously” adopted the finding of the presentence report that defendant had not demonstrated his acceptance of responsibility. Given defendant’s limited admissions, the refusal to grant the reduction was not clearly erroneous. U.S. v. Sherbak, 950 F.2d 1095 (5th Cir. 1992).
5th Circuit rejects acceptance of responsibility where defendants denied involvement outside charged conduct. (482) Defendants were arrested after purchasing half a pound of methamphetamine from an undercover agent. The 5th Circuit affirmed the district court’s denial of a reduction for acceptance of responsibility because defendants denied culpability for any criminal conduct beyond the specific offense charged. One defendant claimed that he was pressured into committing the offense and denied that the purchase money came from the prior sale of other drugs. The other defendant denied that he knew that his co-defendant planned to purchase methamphetamine and denied testing the drug, insisting that he was simply “using” the drug. Both defendants continued to deny their involvement in the sale of 17 additional ounces of methamphetamine. U.S. v. Kinder, 946 F.2d 362 (5th Cir. 1991).
5th Circuit denies reduction where defendant did not accept responsibility for all relevant conduct. (482) Although defendant said that he accepted responsibility for his offense of conviction, he denied his involvement in six other documented drug transactions between himself and an undercover agent. The 5th Circuit found that this was sufficient to deny defendant a reduction for acceptance of responsibility. To obtain a reduction under guideline § 3E1.1, the defendant must show that he accepted responsibility for all his relevant criminal conduct. U.S. v. Alfaro, 919 F.2d 962 (5th Cir. 1990).
6th Circuit holds that court properly considered prior illegal re-entries in denying acceptance reduction. (482) Defendant pled guilty to re-entering the U.S. after deportation. He argued that he accepted responsibility by pleading guilty and truthfully admitting the conduct comprising the offense of conviction. The district court denied the reduction, noting that defendant had previously been deported for committing crimes in this country. The Sixth Circuit held that the district court properly denied the reduction based on defendant’s repeat violations of the same statute violated here. The district court was suspicious that defendant would again illegally reenter the country. Lack of true remorse is a valid consideration. The district court’s disbelief in defendant’s remorse was well-founded. When the probation officer asked him what he intended to do after being deported, defendant said that he intended to come back. Additionally, when given the opportunity to address the court at sentencing, defendant did not express remorse or contrition for his actions. U.S. v. Castillo-Garcia, 205 F.3d 887 (6th Cir. 2000).
6th Circuit rules court did not reject reduction based on denial of relevant conduct. (482) Defendant asserted that he was improperly denied credit for acceptance of responsibility based on his failure to admit relevant conduct. In denying the reduction, the district court stated that to earn the reduction, a defendant must give “a full and complete truthful statement of guilt and relevant conduct surrounding the guilt.” It then relied on defendant’s statements concerning the legalization of marijuana and the police officers’ role in the case. The Sixth Circuit found that the denial of the § 3E1.1 reduction was not based on the denial of relevant conduct. The district court used the term “relevant conduct” not in the guidelines sense, but as conduct related to the count of conviction or guilt. Defendant’s comments about the police clearly related to that count. Oliver v. U.S., 90 F.3d 177 (6th Cir. 1996).
6th Circuit approves firearm increase despite claim that girlfriend kept gun for protection. (482) Defendant pled guilty to a drug charge. When he was arrested, police found drugs in the bathroom and a semiautomatic pistol and ammunition in the top drawer of a dresser in the master bedroom. Defendant challenged a § 2D1.1(b)(1) enhancement, because his girlfriend, with whom he lived, testified that the gun belonged to someone else and that the girlfriend kept the gun in the apartment for her protection. The Sixth Circuit affirmed because even if the gun was in the house for the girlfriend’s protection, the gun could be jointly possessed and was located in a residence to which defendant had full access and where drugs were found. U.S. v. Hill, 79 F.3d 1477 (6th Cir. 1996).
6th Circuit denies reduction to defendant who frivolously contested relevant conduct during grand jury testimony. (482) The district court denied defendant an acceptance of responsibility reduction, finding that during his grand jury testimony, he frivolously contested relevant conduct concerning the scope of his involvement in a plan to manufacture methcathinone. He testified that he only received two shipments of ephedrine, when he actually received six. He also made additional numerous false statements concerning relevant conduct during his grand jury testimony. Finally, defendant’s obstruction of justice enhancement (based on the grand jury perjury) was inconsistent with acceptance of responsibility. U.S. v. Mahaffey, 53 F.3d 128 (6th Cir. 1995).
6th Circuit holds that reduction may be conditioned on acceptance of responsibility for related conduct. (482) Agreeing with the 4th, 5th, 7th, 10th and 11th Circuits, and disagreeing with the 1st, 2nd, 3rd and 9th Circuits, the 6th Circuit held that it did not violate defendant’s 5th Amendment right against self-incrimination to deny him a reduction based on his refusal to accept responsibility for conduct related to the offense of conviction. The court adopted the rationale of the 4th Circuit in U.S. v. Fraizer, 971 F.2d 1076 (4th Cir. 1992), cert. denied, 113 S.Ct. 1028 (1993). The choice presented to a defendant under §3E1.1 is constitutionally indistinguishable from the choice confronting defendants in the plea bargain cases, and is different from the choice faced by the plaintiffs in the public employment penalty cases. The guidelines’ approach is consistent with the historic ability of sentencing judges to withhold leniency if they believe that a defendant concealed the true scope of his crimes. U.S. v. Clemons, 999 F.2d 154 (6th Cir. 1993).
6th Circuit remands because denial of acceptance credit was based on nonconviction matters. (482) The district court denied defendant a downward adjustment for acceptance of responsibility in part because of defendant’s attitude with respect to a fraud that predated the crime of conviction. The 6th Circuit remanded because it found that the earlier fraud could not be considered relevant conduct of the offense of conviction. Moreover, it noted that circuit precedent required acceptance of responsibility to be assessed based solely on the offense of conviction. U.S. v. Moored, 997 F.2d 139 (6th Cir. 1993).
6th Circuit rejects reduction where defendant denied involvement in earlier cocaine transaction. (482) Defendant and his co-conspirator initially attempted to purchase five kilograms of cocaine from undercover agents, but the deal was never completed. Defendant and his co-conspirator were subsequently arrested after attempting to purchase three kilograms of cocaine from the same undercover agents. The 6th Circuit affirmed the denial of a reduction for acceptance of responsibility because at the sentencing hearing, defendant denied involvement in the initial attempt to purchase five kilograms of cocaine, despite persuasive evidence to the contrary. U.S. v. Nichols, 979 F.2d 402 (6th Cir. 1992), cert. granted in part, Nichols v. U.S. 114 S.Ct. 39 (1993).
6th Circuit finds no acceptance of responsibility by defendant who only accepted responsibility for drugs listed in indictment. (482) The 6th Circuit found that defendant was not entitled to a reduction for acceptance of responsibility because he only accepted responsibility for the drugs listed in the indictment. However, the district court had found that defendant was responsible for a much larger quantity of drugs than those listed in the indictment. U.S. v. Herrera, 928 F.2d 769 (6th Cir. 1991).
6th Circuit dismisses as “inappropriate,” argument that defendant need only accept responsibility for counts of conviction. (482) The sentencing court refused to grant a downward adjustment for acceptance of responsibility based solely on defendants’ guilty plea. Citing U.S. v. Perez-Franco, 873 F.2d 455 (1st Cir. 1989), defendant argued that he need only accept responsibility for offenses to which he pled guilty and argued that the district court expected him to accept responsibility by naming his New York sources. The 6th Circuit disagreed, holding “Perez-Franco is instructive only when, absent the district courts’ allegedly illegitimate expectation, there is clear evidence that defendant actually accepted responsibility.” In this case, the district court clearly stated that defendant was not receiving a reduction merely for pleading guilty. U.S. v. Guarin, 898 F.2d 1120 (6th Cir. 1990).
7th Circuit denies acceptance reduction for false testimony and frivolously denying relevant conduct. (482) Defendants contested the district court’s decision to deny them reductions for acceptance of responsibility under § 3E1.1. They argued that because they had the right to require the government to prove relevant conduct at sentencing, it was error for the court to deny them an acceptance reduction simply because they exercised that right. The Seventh Circuit found no error in the court’s denial of the acceptance reduction. The district court decided that defendant Bowman gave false testimony and that defendant Cole frivolously denied the amounts of crack cocaine attributed to him. Defendant argued that he was responsible for roughly 10 percent of the quantity of crack cocaine that the government attributed to him. He insisted that the government’s witnesses made up facts about him, but he presented only one witness to contest their version of events. Given the deferential standard of review that applied, the district court’s conclusion that defendant frivolously denied relevant conduct was not clear error. U.S. v. Etchin, 614 F.3d 726 (7th Cir. 2010).
7th Circuit rejects acceptance reduction based on denial of relevant conduct. (482) Defendant contended that he cooperated so fully with law enforcement authorities after his arrest that he deserved a three-level acceptance of responsibility reduction. The court gave two independent reasons for its decision to deny the reduction: first, a letter defendant wrote to the court was not fully honest and denied relevant conduct (such as whether defendant knew that the drug was methamphetamine, and how much money he was going to receive), and second, that he denied relevant conduct when he insisted that he was not the person in charge. The first of these reasons was enough to support the denial of the adjustment for acceptance of responsibility. U.S. v. Hernandez, 309 F.3d 458 (7th Cir. 2002).
7th Circuit denies acceptance reduction based on false denial of relevant conduct. (482) In the plea agreement, the government promised to recommend a reduction if defendant exhibited behavior consistent with acceptance of responsibility. At the time the government made this promise, it was aware that defendant intended to dispute the amount of crack attributable to relevant conduct and also to contest whether he possessed a dangerous weapon during a drug offense. Defendant argued that the government deluded him in the plea agreement by making an illusory promise to recommend the reduction when the government fully intended to argue that defendant frivolously denied ownership of the gun and the crack found in the basement duct work. The Seventh Circuit found no error. The district court was entitled to credit the testimony of an informant over that of defendant after hearing both testify. Having found that defendant falsely denied the extent of his drug dealing, the district court did not err in denying defendant an acceptance of responsibility reduction. Moreover, the government’s promise was not illusory. If the government had believed defendant’s testimony, the government would have been obliged to recommend a reduction in defendant’s sentence for acceptance of responsibility. U.S. v. Willis, 300 F.3d 803 (7th Cir. 2002).
7th Circuit rejects acceptance reduction where defendant denied relevant conduct. (482) Defendant argued that he deserved a three-level acceptance of responsibility reduction because he never challenged the facts underlying his convictions, but instead merely raised good faith legal objections to the conclusions that should be drawn from those facts. He also voluntarily gave a statement to police shortly after his arrest, quickly informed the government that he wished to plead guilty, assisted the government by providing information as to a co-conspirator’s whereabouts, and consistently admitted his guilt. However, the district court did not believe that defendant’s cooperation in these instances was sufficient to outweigh his other protests. He objected to the district court’s conclusion that 19 grams of crack dropped by a co-conspirator while fleeing from police was relevant conduct. Although defendant’s cooperation made this a closer case than it otherwise might have been, the Seventh Circuit affirmed the denial of the acceptance reduction. The objections defendant raised boiled down to denials of the facts comprising relevant conduct. Defendant denied the fact that the 19 grams found by the back door of the house belonged to a co-conspirator and were part of their joint venture in crack distribution. He also denied the fact that the firearms inside the house were there to protect the drugs and the individuals like himself who were selling the drugs. Although a defendant is free to challenge the government’s proffer of relevant evidence, doing so “exposes his denials to the scrutiny of the court.” U.S. v. Booker, 248 F.3d 683 (7th Cir. 2001).
7th Circuit denies acceptance reduction where defendant denied relevant conduct. (482) Defendant argued that his denial of drug quantity found by the district court was not evidence of frivolously contesting relevant conduct, but simply an indication of his desire for his sentence to reflect the actual quantity for which he was responsible. Thus, he contended he was entitled to an acceptance of responsibility reduction. The Seventh Circuit noted that it is permissible to withhold an acceptance of responsibility reduction from a defendant who denies relevant conduct in the face of credible statements from witnesses tying him to the offense. The district court’s decision to find the testimony of Cooke and the statement of Neumann credible was supported by the record. Thus, faced with credible evidence that defendant sold 3735 grams of methamphetamine, and defendant’s insistence that he sold 1360 grams, the district court’s finding that defendant frivolously contested relevant conduct was proper. U.S. v. Berthiaume, 233 F.3d 1000 (7th Cir. 2000).
7th Circuit remands because court applied old guideline requiring acceptance of relevant conduct. (482) Defendant pled guilty to extortion stemming from his sale of general contractors’ licenses for $1500 to two applicants who did not take the required test. In his statement to the probation officer, defendant admitted the two sales, but did not discuss additional sales that constituted relevant conduct. The district court concluded that defendant had been less than truthful, and thus did not accept responsibility, because the government produced a number of witnesses who testified that defendant sold many more than two general contractors’ licenses. The Seventh Circuit remanded, holding that the district court incorrectly applied a prior version of the application notes that required acceptance of responsibility for all related conduct. In 1998, Note 1(a) to § 3E1.1 was amended to provide that a defendant is not required to volunteer or affirmatively admit relevant conduct in order to obtain the acceptance reduction. However, the court may consider whether a defendant frivolously denies relevant conduct. Here, the district court improperly denied the reduction because defendant did not admit relevant conduct. However, there was no evidence that the probation officer asked defendant about the relevant conduct or that defendant falsely denied this uncharged conduct. U.S. v. Hollis, 230 F.3d 955 (7th Cir. 2000).
7th Circuit withholds acceptance reduction from defendant who denies relevant conduct. (482) The district court did not grant defendant an acceptance of responsibility reduction because he challenged the district court’s calculation of his relevant conduct. The Seventh Circuit affirmed. Defendant contested the judge’s application of the drug aggregation rule, and denied responsibility for the full extent of his involvement with his supplier in a statement wholly at odds with witness testimony. The sentencing court found that defendant had “falsely denied and frivolously contested relevant conduct which the Court has determined to be true.” Defendant did more than challenge whether the Brown or Christiansen drug conspiracies were “relevant” to the offense of conviction, he also challenged the amount of drugs attributable to the Brown conspiracy. As in U.S. v. Taylor, 72 F.3d 533 (7th Cir. 1995), defendant offered only his bare denials to counter the largely consistent stories of several witnesses. The sentencing court did not err in finding that defendant’s challenge was frivolous. U.S. v. Zehm, 217 F.3d 506 (7th Cir. 2000).
7th Circuit denies reduction to prisoner who refused to provide name of drug supplier. (482) Defendant was caught possessing marijuana while he was a prisoner in a federal correctional facility. The district court denied defendant a § 3E1.1 acceptance of responsibility reduction because he refused to tell the probation officer or the district court where he acquired the marijuana. A sentencing court cannot condition a § 3E1.1 reduction on defendant’s admission of details related to crimes other than the offense of conviction. A sentencing court can, however, require that the defendant provide a “candid and full unraveling of the circumstances surrounding the offense of conviction, including information about the methods used by the defendant to commit his crime and the source of the contraband he possessed at the time of arrest.” U.S. v. Hammick,36 F.3d 594, 599-600 (7th Cir. 1994). The Seventh Circuit held that under Hammick, it was clearly permissible for the district court to condition the acceptance of responsibility reduction on defendant’s willingness to provide information regarding his drug source. The district court was not attempting to obtain information about uncharged crimes, but only obtain a candid and full account of how defendant came to possess the marijuana. U.S. v. Larkin, 171 F.3d 556 (7th Cir. 1999).
7th Circuit holds that failure to recommend acceptance of responsibility reduction breached plea agreement. (482) The government agreed as part of defendant’s plea agreement to recommend an acceptance of responsibility reduction “based upon facts currently known” to the government. The government later withdrew its recommendation, claiming that defendant denied relevant conduct. The Seventh Circuit held that the government’s failure to make the recommendation breached the plea agreement, since it was not based on any newly discovered evidence. The government claimed that it discovered post-plea that defendant lied about the starting date of his association with a drug runner named Duran. However, the “discovery” was based on a taped conversation between defendant and an informant that government possessed long before the plea agreement was negotiated. The government also claimed that defendant knew more about the role of Duran’s ex-wife than he admitted. However, the record did not support this conclusion. Defendant admitted from the beginning that he once picked up drugs from the ex-wife’s house. Absent newly discovered evidence, the government was bound by its agreement to recommend the acceptance of responsibility reduction. U.S. v. Grimm, 170 F.3d 760 (7th Cir. 1999).
7th Circuit rejects acceptance of responsibility reduction where defendant later changed his story. (482) Defendant pled guilty to a single drug count and a gun charge. However, he later moved unsuccessfully to withdraw his guilty plea. The Seventh Circuit ruled that the district court properly found defendant did not accept responsibility for his crime. After pleading guilty, he changed his story and falsely denied facts about membership in the drug conspiracy and his intended use of the gun. U.S. v. Martinez, 169 F.3d 1049 (7th Cir. 1999).
7th Circuit finds no acceptance of responsibility where defendant falsely denied relevant conduct. (482) In denying defendant a reduction for acceptance of responsibility, the court explained that defendant had falsely denied relevant conduct. Defendant argued that the court erroneously required him to affirmatively admit relevant conduct, whereas § 3E1.1 says a defendant need not volunteer or affirmatively admit relevant conduct to show acceptance of responsibility. The Seventh Circuit found the reduction was proper based on defendant’s false denial of relevant conduct, even though the judge’s comments could be read as suggesting that he wanted defendant to volunteer information about the relevant conduct. However, the court’s findings were insufficient to support its conclusion that the uncharged conduct was “relevant” under the guidelines. On remand, the court was instructed to revisit this issue. U.S. v. Patel, 131 F.3d 1195 (7th Cir. 1997).
7th Circuit denies § 3E1.1 reduction where defendants falsely denied relevant conduct. (482) Defendant and his family fraudulently procured unemployment compensation checks for fictitious employees of the bar and restaurant he owned with his brother. The Seventh Circuit found defendant’s appeal of the denial of an acceptance of responsibility reduction to be frivolous given his persistent denial of relevant conduct. The most glaring example was his denial that he was the “Louis A. Valera” who devised and directed the scheme. There was compelling evidence to the contrary, including fingerprints and the bar accountant who identified defendant as Valera. Defendant’s sister also did not earn the § 3E1.1 reduction because she denied that she supplied the scheme with names and personal information for phony claimants by misappropriating files from her employer. U.S. v. Zaragoza, 117 F.3d 342 (7th Cir. 1997).
7th Circuit refuses to attribute attorney’s factual challenge to silent defendant. (482) Defendant pled guilty to conspiracy to import cocaine and marijuana. He admitted the conduct relating to the offense of conviction, but remained silent about a smuggling trip that was not part of the charged conspiracy. The district court denied credit for acceptance of responsibility because defense counsel argued that this trip was not relevant conduct and challenged certain facts about the trip. The court also found that defendant was not actually remorseful. The Seventh Circuit found that contesting whether conduct is “relevant” is analogous to challenging the constitutionality of a statute or the application of a statute to the facts. This does not bar acceptance credit. It would also be troubling to attribute the attorney’s factual challenges to defendant where defendant remained silent on advice of his attorney. In such a situation, a court should require counsel to present evidence to support his factual challenges, or question the defendant to see if he adopts the attorney’s challenge. Given defendant’s limited English and education, it was possible he did not agree with or even understand his attorney’s challenge. However, the reduction was still properly denied because the district court found that defendant was insincere in his one-sentence apology to the court. U.S. v. Purchess, 107 F.3d 1261 (7th Cir. 1997).
7th Circuit prohibits denying additional § 3E1.1 reduction once court finds defendant meets the criteria. (482) The district court granted defendant a two‑level acceptance of responsibility reduction because defendant timely provided information to the prosecutor and had timely pled guilty. However, because he falsely denied relevant conduct that the court found to be true, it refused to grant him an additional one level reduction under § 3E1.1(b). The Seventh Circuit reversed, holding that once a defendant meets the criteria of § 3E1.1(b), the reduction is mandatory and not permissive. Under the guidelines, a defendant must be given a two‑level decrease under subsection (a) when he clearly accepts responsibility for his offense. After he qualifies for subsection (a), he also must be given an additional one‑level decrease under subsection (b) when its criteria are met: the offense level must be 16 or greater before the two level reduction, and the defendant must timely assist authorities. The district court expressly found that defendant met the § 3E1.1(b) criteria. Once it did, it was required to grant the additional reduction, rather than announcing that defendant was lucky to receive the two‑point reduction he did receive. U.S. v. Townsend, 73 F.3d 747 (7th Cir. 1996).
7th Circuit refuses § 3E1.1 reduction for false denial of relevant conduct. (482) Defendant argued that the court denied her a § 3E1.1 reduction because she challenged the accuracy of the PSR. The Seventh Circuit held that the § 3E1.1 reduction was properly rejected because defendant falsely denied relevant conduct. The judge noted that defendant’s testimony differed from the accounts provided by others and concluded that defendant had tried to minimize her role in the drug conspiracy. The district court refused to accept defendant’s version of the facts and made a specific finding that she was not credible. Defendant’s uncorroborated and self-serving assertions were a false denial of relevant conduct. U.S. v. Taylor, 72 F.3d 533 (7th Cir. 1995).
7th Circuit denies reduction for defendants who denied full extent of relevant criminal conduct. (482) Defendants engaged in a fraudulent “Ponzi” scheme. They pled guilty to a single count of mail fraud based on a mailing to one investor. They argued that they should not be required to admit their conduct beyond the offense of conviction in order to obtain an acceptance of responsibility reduction. The Seventh Circuit held that defendants were properly denied an acceptance of responsibility reduction based on their denial of relevant conduct. Although a defendant need not admit relevant conduct to obtain the reduction, he cannot lie about such conduct. Defendants here affirmatively denied that they engaged in a scheme to defraud. A defendant who denies the government’s statement of relevant conduct exposes his denials to the scrutiny of the court. U.S. v. Brown, 47 F.3d 198 (7th Cir. 1995).
7th Circuit denies acceptance reduction for failing to discuss source of fraudulent credit cards and ID. (482) Defendant pled guilty to using counterfeit credit cards and identification documents. The district court denied defendant a reduction for acceptance of responsibility because she refused to explain how she arrived in Wisconsin, where she acquired the fraudulent credit cards and IDs she used to commit her crimes, or who was the source of $14,000 that she and her co-conspirator held at the time of their arrest. She argued that her silence was protected by note 1(a) to § 3E1.1, which allows a defendant to remain silent concerning relevant conduct outside the scope of his offense. The 7th Circuit held that the reduction was properly denied based on defendant’s failure to fully explain the conduct comprising her offense of conviction. Defendant’s silence about the source of the excess funds was protected by note 1(a), since the money was not involved in the offense of conviction. However, by refusing to explain how she arrived in Wisconsin or where she received the counterfeit documents, defendant failed to provide “a candid and full unraveling” of the conduct comprising her offense of conviction. Judge Bauer dissented. U.S. v. Hammick, 36 F.3d 594 (7th Cir. 1994).
7th Circuit rejects acceptance of responsibility reduction for falsely denying relevant conduct. (482) Defendant pled guilty to armed bank robbery. He admitted committing the robbery, but denied firing four shots at a witness while making his escape. He also denied brandishing a firearm at a woman’s house to obtain her car. The 7th Circuit upheld the district court’s denial of an acceptance of responsibility reduction based on defendant’s false denial of the relevant conduct. Under the 1992 amendments to § 3E1.1, a defendant may remain silent about relevant conduct without affecting his ability to obtain the reduction. However, a defendant who falsely denies relevant conduct that a court determines to be true has acted in a manner inconsistent with acceptance of responsibility. U.S. v. Schuler, 34 F.3d 457 (7th Cir. 1994).
7th Circuit says defendant not required to accept responsibility for conduct that is not “relevant.” (482) Defendant threatened a 14-year-old mentally retarded girl with a silencer-equipped gun, warning that he would harm “a lot of people” if she reported his sexual abuse. Defendant was convicted in federal court of possessing two unregistered silencers. The district court denied a reduction for acceptance of responsibility in part because defendant refused to accept responsibility for the obstruction of justice or the sexual assault. The 7th Circuit held that defendant might be eligible for the reduction because he acknowledged his responsibility for possessing the unregistered silencers. He was not required to accept responsibility for the obstruction of justice or the sexual assault because they were not relevant conduct under § 1B1.3. U.S. v. Ritsema, 31 F.3d 559 (7th Cir. 1994).
7th Circuit holds that, under pre-1992 guidelines, defendant must accept responsibility for all relevant conduct. (482) Agreeing with the majority of courts, the 7th Circuit held that, under the pre-1992 guidelines, a defendant must accept responsibility for both his offense of conviction and his related criminal conduct to receive a two level reduction under section 3E1.1. Consideration of related conduct does not violate a defendant’s right against self-incrimination. The denial of a section 3E1.1 reduction is not a penalty. A defendant who remains silent is only denied the benefit of having his sentence reduced as a reward for affirmatively admitting both to his offense and to his related conduct. The 1992 amendment to section 3E1.1, which, in part, states that a court should consider whether a defendant falsely denies relevant conduct, is a substantive change and not a clarification. The amendment is not retroactive. Ebbole v. U.S., 8 F.3d 530 (7th Cir. 1993).
7th Circuit denies reduction where defendant falsely denied relevant conduct. (482) The 7th Circuit upheld the denial of a reduction for acceptance of responsibility based on defendant’s denial of related conduct. It was true that under note 1(a) to section 3E1.1, as amended effective November 1992, a defendant need only accept responsibility for the conduct underlying his offense of conviction and should not be required to affirmatively “come clean” on relevant conduct in order to obtain the reduction. However, a defendant who falsely denies relevant conduct, as defendant did here, is not entitled to the reduction. Thus, even if the amendment applied to defendant retroactively, he was not entitled to the reduction. U.S. v. Cedano-Rojas, 999 F.2d 1175 (7th Cir. 1993).
7th Circuit sees no 5th Amendment barrier to denying acceptance credit for lie about non-convicted conduct. (482) Defendant argued that he was denied a downward adjustment for acceptance of responsibility in violation of the right against self-incrimination because the denial was based on defendant’s statements about conduct other than the offense of conviction. The 7th Circuit disagreed. While prior cases suggested that the circuit would not find a 5th Amendment violation in denying the adjustment for a defendant who refused to accept responsibility for related conduct, the court reserved decision on that point. Even assuming applicability of the 5th Amendment, the court concluded that defendant’s lies about related conduct would not be protected. U.S. v. Corbin, 998 F.2d 1377 (7th Cir. 1993).
7th Circuit requires defendant to accept responsibility for relevant conduct despite Fifth Amendment claim. (482) Defendant complained that he was denied a downward adjustment for acceptance of responsibility based on his denial of uncharged relevant conduct. The 7th Circuit affirmed, noting that guideline amendments have clarified that a defendant must accept responsibility for “relevant conduct,” not for some smaller category of “related conduct.” While recognizing that some circuits have disagreed, the court concluded that the right against self-incrimination is not violated by the guideline when the defendant has not asserted his Fifth Amendment right to remain silent about uncharged relevant conduct, but instead has denied the conduct and the district court has found that he lied. U.S. v. White, 993 F.2d 147 (7th Cir. 1993).
8th Circuit denies acceptance reduction where defendant falsely denied relevant conduct and there is no evidence of claimed coercion. (482) Defendant pled guilty to conspiracy to distribute methamphetamine and reentry as a previously removed alien. He appealed the district court’s refusal to grant a three-level acceptance-of-responsibility reduction. The district court had found that defendant challenged a § 2D1.1(b)(5) importation enhancement by falsely denying the importation of the meth, and falsely claimed his participation was coerced by threats. The Eighth Circuit affirmed. Although defendant argued that he made a “good faith” objection to the importation enhancement, pled guilty, and generally cooperated, the district court found that defendant falsely denied relevant conduct. In addition, the court found “simply no evidence” of coercion. Defendant had stated in his sentencing memo that he was often threatened, and his family in Mexico would be harmed if he did not continue to work in the conspiracy. U.S. v. Rivera-Mendoza, 682 F.3d 730 (8th Cir. 2012).
8th Circuit denies reduction where defendant denied involvement in uncharged crack deals. (482) Defendant was arrested after a crack cocaine transaction. The district court relied on defendant’s post-arrest statements describing his previous crack transactions to determine drug quantity. However, at sentencing, defendant denied that he had engaged in the prior crack transactions assessed against him as relevant conduct. The 8th Circuit held that defendant’s denial was inconsistent with an acceptance of responsibility, and upheld the denial of a section 3E1.1 reduction. U.S. v. Wyatt, 26 F.3d 863 (8th Cir. 1994).
8th Circuit directs court to reconsider whether defendant falsely denied relevant conduct. (482) Defendant argued that the district court erroneously denied him a reduction because he refused to accept responsibility for offenses other than those to which he pled guilty. Since the case was being remanded on other grounds, the 8th Circuit directed the district court to reconsider this issue in light of the November 1992 amendments to the application notes to section 3E1.1. They provide that a defendant is not required to affirmatively admit relevant conduct beyond the offense of conviction in order to obtain an acceptance of responsibility reduction. However, a defendant who falsely denies relevant conduct has acted in a manner inconsistent with acceptance of responsibility and may be denied the reduction. U.S. v. Matthews, 5 F.3d 1161 (8th Cir. 1993).
8th Circuit denies reduction where defendant did not accept responsibility for uncharged drug quantities. (482) The 8th Circuit rejected defendant’s claim that he was entitled to a reduction for acceptance of responsibility simply because he pled guilty to conspiring to possess 42 pounds of marijuana. First, a defendant is not entitled to a reduction simply because he pleads guilty. Second, the court found that defendant was involved with 125 pounds of marijuana. Accepting responsibility for 42 pounds of marijuana is different than accepting responsibility for the full amount. U.S. v. Abanatha, 999 F.2d 1246 (8th Cir. 1993).
8th Circuit holds lie need not involve “relevant conduct” to preclude acceptance of responsibility adjustment. (482) Defendant maintained that he grew marijuana solely for personal use, but substantial evidence indicated that he actually sold it. Nevertheless, defendant argued that his position could not justify denying him an adjustment for acceptance of responsibility, since whether he intended to sell the plants was neither an element of the offense of conviction nor “relevant conduct” under 1B1.3. The 8th Circuit disagreed. False statements at a plea hearing, whether regarding relevant criminal conduct or otherwise, are “inconsistent” with acceptance of responsibility. U.S. v. Welna, 998 F.2d 599 (8th Cir. 1993).
8th Circuit denies acceptance credit where defendant did not admit related conduct. (482) Defendant pled guilty to receiving a photograph of a minor engaging in sexually explicit conduct, and the charge of producing the photograph was dismissed. His wife pled guilty to misprision of defendant’s felony. Notwithstanding the dismissal of the charges relating to producing the photograph, the district court found that defendant took the photos involved. The 8th Circuit upheld the denial of a reduction for acceptance of responsibility for both defendant and his wife based on their claim that they did not know who took the photographs. The background commentary to the 1991 version of section 3E1.1 provides that a defendant may receive the reduction if he or she accepts responsibility for the offense and related conduct. U.S. v. Jones, 994 F.2d 456 (8th Cir. 1993).
9th Circuit says unrelated criminal conduct may show lack of acceptance of responsibility. (482) 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 says that trial on one of two indictments does not bar acceptance reduction at sentencing in both cases. (482) Defendant was charged in two separate indictments with engaging in two fraudulent schemes. He went to trial on the first indictment and was convicted; he then pled guilty to the second indictment. At a combined sentencing hearing for the convictions arising out of both indictments, the district court awarded defendant a reduction for acceptance of responsibility over the government’s objection that defendant’s decision to go to trial showed that he had not accepted responsibility for all of the charges that he faced. On the government’s appeal, the Ninth Circuit affirmed, holding that a district court may grant a defendant charged in two separate indictments that are combined for sentencing a downward adjustment for acceptance of responsibility if the defendant pleads guilty to all charges in one indictment, even if the defendant goes to trial on the charges in the other indictment. U.S. v. Kellum, 372 F.3d 1141 (9th Cir. 2004).
9th Circuit requires acceptance of responsibility for all counts of conviction. (482) Defendant was convicted of two bank robberies, but accepted responsibility for only one. The Ninth Circuit agreed with the Third and Fifth Circuits that a defendant is not entitled to an adjustment for acceptance of responsibility when he does not accept responsibility for all of the counts of which he is convicted. U.S. v. McDowell, 888 F.2d 285, 293 (3rd Cir. 1989); U.S. v. Kleinebreil, 966 F.2d 945, 951-53 (5th Cir. 1992). This is because, under the guidelines, credit for acceptance of responsibility is given only after the base offense level for all offenses of conviction is computed. U.S. v. Ginn, 87 F3d 367 (9th Cir. 1996).
9th Circuit orders third level off where defendant was acquitted on only charge he contested. (482) From the beginning, defendant admitted he was involved in the illegal weapons offenses but denied involvement in his co-defendant’s drug trafficking. He offered to plead guilty to the firearms charges, and at trial, he fully admitted ownership and unlawful possession of the weapons. He was convicted of the firearms charges but acquitted of all drug charges. Under guideline § 3E1.1(b) a defendant is entitled to a reduction in his offense level by two points for acceptance of responsibility and by a third point if he timely provides complete information concerning his own involvement in the offense. The district court refused to give defendant the third level off, but on appeal the Ninth Circuit reversed because defendant had timely provided complete information about the offenses for which he was convicted. The court said he could not be punished for failing to provide information about offenses for which he had been acquitted. Nor did it matter that the district court found that defendant’s information was not “complete,” because the incomplete information did not affect defendant’s criminal liability. U.S. v. Eyler, 67 F.3d 1386 (9th Cir. 1995).
9th Circuit says lying about motive does not preclude adjustment for acceptance of responsibility. (482) The district judge found that defendants lied about their motive for importing opium into the country, but nevertheless found that they accepted responsibility. The government appealed, arguing that because the defendants obstructed justice by lying, they were ineligible for a downward adjustment for acceptance of responsibility. The 9th Circuit rejected the government’s argument and affirmed the district court, stating it was bound by U.S. v. Gonzalez, 16 F.3d 985, 991 (9th Cir. 1993), “which establishes that lying about motive to commit the crime does not preclude downward adjustment for acceptance of responsibility, where the lie would not establish a defense to the crime or avoid criminal liability.” U.S. v. Khang, 36 F.3d 77 (9th Cir. 1994).
9th Circuit says false denial of relevant conduct earns no credit for acceptance of responsibility. (482) Under U.S. v. Piper, 918 F.2d 839, 840 (9th Cir. 1990), a defendant cannot be required to admit to uncharged conduct or to relinquish his Fifth Amendment right to silence in order to obtain credit for acceptance of responsibility. But in U.S. v. Olea, 987 F.2d 874, 878 (1st Cir. 1993), the 1st Circuit held that this rule does not allow a defendant to give false information about relevant conduct. Here, the 9th Circuit agreed with Olea and upheld the denial of credit for acceptance of responsibility. Although defendant pled guilty to being a felon in possession of a firearm, he denied using the gun to rob a sandwich shop. This robbery was “relevant conduct,” and it was captured on videotape viewed by the sentencing judge. Defendant could have remained silent about the robbery without being penalized. But his false denial was inconsistent with acceptance of responsibility. U.S. v. Rutledge, 28 F.3d 998 (9th Cir. 1994).
9th Circuit says court did not improperly consider offenses outside the offense of conviction. (482) Defendant argued that the district court improperly denied the two level reduction because, while he admitted his guilt in committing a fraud, he stated that he also believed he was entitled to social security disability benefits based on his medical condition. The 9th Circuit rejected the argument, ruling that the district court did not expressly base its decision on defendant’s statements regarding the social security benefits. Instead, the district court appeared to have relied on “the government’s argument that [defendant] had shown no remorse for having committed his offense of conviction.” U.S. v. Scarano, 975 F.2d 580 (9th Cir. 1992).
9th Circuit finds no acceptance of responsibility where defendant showed no remorse. (482) Defendant argued that he showed no remorse because he could not discuss criminal behavior of which he was yet to be convicted. The 9th Circuit rejected the argument, ruling that the reduction was not denied because defendant refused to discuss uncharged behavior but because he did not exhibit remorse for the conduct for which he was convicted. U.S. v. Daly, 974 F.2d 1215 (9th Cir. 1992).
9th Circuit upholds denial of credit for acceptance of responsibility for offense of conviction. (482) Guideline § 3E1.1 requires that a defendant accept responsibility “only for the offense of conviction.” The defendant argued that he was denied credit for acceptance of responsibility because he did not elaborate on his involvement in the “whole criminal enterprise.” The 9th Circuit held that the record did not support this assertion. The sentencing court stated that the defendant did not accept responsibility “for his acts, primarily his acts of perjury.” Only after the court announced its decision did the defendant make statements apologizing for his perjury. U.S. v. Goodrich, 919 F.2d 1365 (9th Cir. 1990).
9th Circuit rules that defendant need only accept responsibility for the offense of conviction. (482) In U.S. v. Perez-Franco, 873 F.2d 455, 459 (1st Cir. 1989), the 1st Circuit held that a reduction for acceptance of responsibility may not be conditioned on defendant’s acknowledgement of responsibility for dismissed counts. The 1st Circuit’s reasoning has been endorsed by the 2nd, 6th and 10th Circuits, but rejected by the 4th, 5th and 11th Circuits. Here the 9th Circuit agreed with Perez-Franco “that a defendant may controvert evidence of other criminal conduct at sentencing without thereby losing the reduction for acceptance of responsibility.” “To merit such a reduction a defendant must show contrition for the crime for which he was convicted, but need not accept blame for all crimes of which he may be accused.” However, the court added that evidence of continued criminal activity may be used to cast doubt his sincere acceptance of responsibility for the offense of conviction. U.S. v. Piper, 918 F.2d 839 (9th Cir. 1990).
10th Circuit says defendant did not falsely deny relevant conduct by requiring government to meet burden of proof. (482) The government argued that defendant was not entitled to receive a three-level acceptance of responsibility reduction because he frivolously contested his relevant conduct by objecting to the amount of methamphetamine being attributed to him. The Tenth Circuit upheld the district court’s finding that defendant was entitled to a three-level acceptance of responsibility reduction. Defendant admitted to the drug quantities directly attributable to him. The rules of criminal procedure and the guidelines permit a defendant to object to drug quantities he believes are not attributable to him. Defendant did not frivolously contest relevant conduct when he simply required the government to bear its burden of proof. Moreover, early in the proceedings, the government offered a package plea agreement conditioned on each defendant accepting the agreement. Defendant accepted the offer, but it was withdrawn after one of the defendants refused to entered into it. Thus, defendant showed an early acceptance of responsibility. U.S. v. Virgen-Chavarin, 350 F.3d 1122 (10th Cir. 2003).
10th Circuit says lie about cocaine source was lie about relevant conduct. (482) Defendant pled guilty to cocaine conspiracy charges. The district court denied him an acceptance of responsibility reduction because it found that he had lied about the source of his cocaine. Defendant argued that a lie about the actions of a co-conspirator can never be considered grounds for denying the reduction. The Tenth Circuit ruled that defendant’s lie about the source of the cocaine was a lie about relevant conduct; thus the court properly denied the acceptance reduction. The lie told by defendant involved the identity of a participant in the conspiracy. Under the guidelines, defendant was accountable for any reasonable foreseeable acts committed by others “in furtherance of the jointly undertaken criminal activity.” When a defendant falsely identifies a participant in the criminal activity, investigators are hindered in determining all acts committed in furtherance of the jointly undertaken criminal activity. Thus, defendant’s false identification of the source of the cocaine necessarily constituted a lie about relevant conduct. U.S. v. Patron-Montano, 223 F.3d 1184 (10th Cir. 2000).
10th Circuit denies acceptance credit for understating drugs in relevant conduct. (482) Defendant was convicted of methamphetamine conspiracy charges. Although he admitted the facts underlying the charges, the court refused to grant him a § 3E1.1 reduction because it found that he “falsely denied and frivolously contested” relevant conduct which the court found to be true. The Tenth Circuit affirmed, holding that the § 3E1.1 reduction was properly denied based on defendant’s false denial of relevant conduct. The government proved that defendant was accountable for about 12 kilograms of methamphetamine, while defendant testified that he was responsible for only 4 or 5 kilograms. The court found defendant’s testimony was not credible. Because he significantly understated the amount of drugs properly attributable to him, the court properly denied the reduction. U.S. v. Cruz-Camacho, 137 F.3d 1220 (10th Cir. 1998).
10th Circuit denies acceptance reduction for understating culpability in relevant conduct. (482) Although defendant admitted the elements of the offense of conviction, the district court denied a § 3E1.1 reduction because defendant had understated his culpability for other relevant conduct. Defendant admitted participating in a significantly lesser number of episodes of transporting marijuana than the government had proven. Defendant argued that admitting the offense of conviction was all that was required. The Tenth Circuit upheld the denial of the adjustment, finding that defendant had falsely denied his involvement in relevant conduct. Although a defendant is not required to affirmatively admit relevant conduct beyond the offense of conviction, a defendant cannot falsely deny, or frivolously contest, relevant conduct. U.S. v. Contreras, 59 F.3d 1038 (10th Cir. 1995).
10th Circuit says denial of relevant conduct is grounds for denying credit for acceptance. (482) When confronted by a prison guard, defendant refused to submit to a pat search, and ran away. The guard observed defendant pull a shank out of his sock and throw it into a cubicle. Defendant pled guilty to interfering with an officer engaged in the performance of his official duties. He argued he should not have been denied a reduction for acceptance of responsibility because the actions he denied, possessing and throwing away the shank, were not elements of the offense of conviction. The 10th Circuit ruled that a defendant’s denial of conduct that is not part of the offense of conviction may be relied on to deny credit for acceptance of responsibility. Carrying and throwing away the shank was relevant conduct which defendant falsely denied. Therefore, the reduction could be properly denied. U.S. v. Anderson, 15 F.3d 979 (10th Cir. 1994).
10th Circuit denies reduction because defendant refused to accept responsibility for dismissed counts. (482) The 10th Circuit affirmed the district court’s decision to deny defendant a reduction for acceptance of responsibility. “A guilty plea to one count of a multi-count indictment does not necessarily entitle a defendant to a reduced offense level based upon acceptance of responsibility.” Defendant appeared to have accepted responsibility for his acts underlying the count of conviction, and “little more.” U.S. v. Ruth, 946 F.2d 110 (10th Cir. 1991).
10th Circuit rejects argument that acceptance of responsibility provision subjects defendant to “Hobson’s Choice.” (482) When defendant was interviewed by the probation officer writing the presentence report, he admitted dealing in 24 ounces of heroin, rather than the 5 ounces specified in the indictment. He argued that U.S.S.G. § 3E1.1 presents an impermissible “Hobson’s Choice” between confessing to acts that could lead to a greater sentence, and refusing to confess, which would result in the denial of the two level reduction for acceptance of responsibility. The 10th Circuit rejected the argument, holding that defendant was not required to disclose uncharged evidence in order to satisfy the acceptance of responsibility provision. Moreover the court said that a downward adjustment under § 3E1.1 does not constitute a “penalty or an enhancement of sentence.” U.S. v. Rogers, 899 F.2d 922 (10th Cir. 1990).
11th Circuit denies acceptance reduction to defendant who falsely denied relevant conduct. (482) Defendant was part of an operation that smuggled individuals from Cuba to Florida by boat. Defendant argued that he was entitled to an acceptance of responsibility reduction because he attempted to plead guilty to the conspiracy charge, even though he did not admit guilt to the remaining charges. However, defendant proceeded to trial and falsely denied relevant conduct that the district court later found to be true. The Eleventh Circuit held that the district court did not err in denying defendant the reduction. U.S. v. De La Cruz Suarez, 601 F.3d 1202 (11th Cir. 2010).
11th Circuit denies acceptance reduction to defendant who falsely denied relevant conduct. (482) Defendant was part of an operation that smuggled individuals from Cuba to Florida by boat. Defendant argued that he was entitled to an acceptance of responsibility reduction because he attempted to plead guilty to the conspiracy charge, even though he did not admit guilt to the remaining charges. However, defendant proceeded to trial and falsely denied relevant conduct that the district court later found to be true. The Eleventh Circuit held that the district court did not err in denying defendant the reduction. U.S. v. De La Cruz Suarez, 601 F.3d 1202 (11th Cir. 2010).
11th Circuit denies acceptance reduction to defendant who falsely denied relevant conduct. (482) Defendant argued that he was entitled to an acceptance of responsibility reduction because he did not take the government to trial, conceded the applicability of all guideline enhancements except one, and submitted an acceptance of responsibility letter to probation. However, a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility. Here, defendant challenged a § 2G2.2 for engaging in a pattern of activity involving the sexual abuse or exploitation of a minor, despite detailed “Spy Reports” compiled by defendant himself that detailed his repeated abuse of children. The Eleventh Circuit upheld the denial of the acceptance reduction. U.S. v. Moriarty, 429 F.3d 1012 (11th Cir. 2005).
11th Circuit denies § 3E1.1 reduction where defendant admitted kidnapping but denied rape. (482) Defendant kidnapped a woman from a gas station, drove her across state lines, and raped her. He pled guilty to kidnapping. He claimed he accepted responsibility by admitting to kidnapping the victim and that a dispute about whether he raped her was a sentencing issue that should not have precluded a § 3E1.1 reduction. The Eleventh Circuit held that defendant’s claim that the victim consented to sexual intercourse was inconsistent with his claim of acceptance of responsibility. A defendant does not warrant a § 3E1.1 reduction if he falsely denies relevant conduct for which he is accountable. U.S. v. Lewis, 115 F.3d 1531 (11th Cir. 1997).
11th Circuit says felon in possession must accept responsibility for acts while he possessed gun. (482) Defendant pled guilty to possession a firearm by a felon. He admitted using a gun to commit a robbery, but claimed he could not remember whether he had pulled the trigger. The district court denied a § 3E1.1 reduction because defendant was not forthright about brandishing the gun and pulling its trigger. Defendant argued that these actions did not constitute relevant conduct because they were not used to calculate his offense level. The Eleventh Circuit held that the actions were relevant conduct because they occurred during the offense of conviction. Relevant conduct is not limited to those acts and omissions that are used to calculate the applicable guideline range. U.S. v. Coe, 79 F.3d 126 (11th Cir. 1996).
11th Circuit denies reduction to defendant who denied involvement in additional conduct. (482) The 11th Circuit upheld the denial of a reduction for acceptance of responsibility to a defendant who objected to the presentence report and denied that he had used 12 of the aliases attributed to him. Evidence at sentencing proved that defendant’s picture appeared in 13 different driver’s license photos, all bearing fictitious names corresponding with the names on fraudulently obtained bank accounts. Defendant also denied involvement in any fraudulent activity other than alleged in the counts of conviction. There was evidence that he came to the United States as a teacher to train other Nigerians how to perpetrate fraud, but defendant denied this. U.S. v. Chukwura, 5 F.3d 1420 (11th Cir. 1993).
11th Circuit rejects acceptance of responsibility where defendant denied involvement in uncharged related conduct. (482) Defendant challenged the sentencing court’s consideration of uncharged conduct in calculating defendant’s base offense level. Noting that in order to be entitled to a reduction in base offense level for acceptance of responsibility, a defendant must accept responsibility for related conduct, the 11th Circuit upheld the trial court’s refusal to reduce defendant’s base offense level for acceptance of responsibility. The court also rejected defendant’s argument that guidelines § 3E1.1 violated his 5th Amendment right against self-incrimination. U.S. v. Ignancio Munio, 909 F.2d 436 (11th Cir. 1990).
D.C. Circuit remands where defendant may have been penalized for exercising right to remain silent. (482) Defendant argued that the district court erred by denying him an acceptance of responsibility reduction based in part on his unwillingness to discuss matters protected by the 5th Amendment. Specially, defendant did not cooperate with the government’s bribery investigation by identifying the source of the funds he failed to report on his tax returns. The D.C. Circuit did not resolve the constitutional issue of whether defendant was required to disclose the source of his funds, because it could not determine from the record whether the court did in fact take into account defendant’s refusal to disclose the source of his funds when it denied him credit under § 3E1.1. On remand, the court should clarify the basis, and if necessary, reconsider its conclusion that defendant did not accept responsibility for his crimes. If the court does not consider defendant’s refusal to disclose the source of the funds in deciding whether to grant or deny him credit under § 3E1.1, then there will be no 5th Amendment issue. U.S. v. Saani, 650 F.3d 761 (D.C. Cir. 2011).
D.C. Circuit declines to decide whether prior guideline required acceptance of responsibility for related conduct. (482) Defendant argued that he was denied an acceptance of responsibility reduction because of his refusal to accept responsibility for conduct outside the offense of conviction. At the time of defendant’s sentencing in July 1991, the guideline required a defendant to accept responsibility for “his criminal conduct.” A majority of other circuits have interpreted this to require acceptance of responsibility for all related conduct. However, amendments to section 3E1.1 and its commentary, effective November 1, 1992, indicate that it applies only to the offense of conviction. Since this revision would render any interpretative ruling of little future effect, and given the ambiguity in the trial court’s ruling, the court remanded for resentencing (which would occur under the new guidelines). U.S. v. Hicks, 978 F.2d 722 (D.C. Cir. 1992).
D.C. Circuit denies acceptance of responsibility reduction where defendant admitted guilt on only 1 of 3 charges. (482) Defendant was convicted of two drug-related offenses and a firearm offense. The D.C. Circuit found that defendant was properly denied a reduction in offense level for acceptance of responsibility, since defendant only admitted at trial to possessing the firearm, but refused to admit guilt on the drug-related charges. Defendant complained about the judge’s reference to U.S. v. Gordon, 895 F.2d 932 (4th Cir.) (1990), which broadly stated that a defendant must accept responsibility for all of his criminal conduct. Although that statement might be extreme, this was not a case in which a defendant accepted responsibility for all but a trivial element of the offense charged. U.S. v. Hazel, 928 F.2d 420 (D.C. Cir. 1991), overruled on other grounds by U.S. v. Dorcely, 454 F.3d 366 (D.C.Cir. 2006).
Article supports constitutionality of considering conduct unrelated to offense of conviction under 3E1.1. (482) A student author describes the various approaches that courts have taken in considering whether a court may condition a downward adjustment for acceptance of responsibility on the defendant’s acceptance of responsibility for conduct not included in the count of conviction. The author discusses the courts’ various interpretations of 3E1.1, as well as the arguments that have been offered regarding whether the provision unconstitutionally burdens the defendant’s fifth amendment right to silence, concluding that the constitution is not violated by permitting consideration of conduct not included in the offense of conviction. Note, Section 3E1.1 Contrition and Fifth Amendment Incrimination: Is There an Iron Fist Beneath the Sentencing Guidelines’ Velvet Glove? 65 St. John’s L. Rev. 1077-1103 (1991).