Cases published since November 1987.
  • Contact Us
  • James Publishing
  • Login
Logo
Searching Tips

How To Search: Type words into the entry box that you want to search for, then click [Search].
Any Word: Just type one or more words to find any of the words. [ Find ANY ] is the usual default.
All Words: Type more than one word and select [ Find ALL ] to find all of the words.
Or you can use Booleans (see below).
Exact Phrase: “…”
You can search for exact phrases by surrounding them in double quotes. Or you can just type the words and select [ Find EXACT phrase ]. Punctuation must be the same to be found between words, for example “Smith, John”
Boolean Operators: + –
Use + in front of each word or a quoted phrase that you require.
Use – in front of each word that you want to exclude.
Boolean Expressions: AND OR NOT ( )
Use AND, OR, NOT, (, and ) to form a Boolean expression. AND requires, OR allows, NOT excludes.
Use double quotes to protect the words “and”, “or”, or “not” in a phrase.
Examples:

Query Gets the documents with
stock market ‘stock’ or ‘market’ or both
“stock market” the phrase ‘stock market’
+stock +market ‘stock’ and ‘market’
+stock -market ‘stock’ but not ‘market’
+president -“United States” ‘president’ but not ‘United States’
(stock OR market) AND NOT president ‘stock’ or ‘market’, and without ‘president’

Capitalization doesn’t matter. The ranked results will come from a total match on the words and phrases which you supply, so try to think of several specific terms for your topic and spell them correctly. It may help to include important plurals and derived words too, like [address addresses contact contacting information] .

Table of Contents

400 – Adjustments, Generally (Chapter 3)

400 – Adjustments, Generally (Chapter 3)
  • 410 Victim-Related Adjustments (§3A)
  • 420 Role in Offense, Generally (§3B)
  • 460 Obstruction of Justice (§3C)
  • 470 Multiple Counts (§3D)
  • 480 Acceptance of Responsibility, Generally (§3E)
  • 431 Cases Finding Aggravating Role
  • 461 Cases Finding Obstruction

Back to main table of contents

§486 Acceptance of Responsibility: Probation Interview/Cooperation

First Circuit
Second Circuit
Third Circuit
Fourth Circuit
Fifth Circuit
Sixth Circuit
Seventh Circuit
Eighth Circuit
Ninth Circuit
Tenth Circuit
Eleventh Circuit
D.C. Circuit
Miscellaneous

6th Circuit affirms denial of acceptance credit for ly­ing at presentence interview. (486) Defendant plead­ed guilty to fraud. He then lied to Probation in his presen­tence interview about the extent of his involvement in the fraud. At sentencing, the district court denied a reduction for acceptance of responsibility. The Sixth Circuit held that a guilty plea, standing alone, does not justify an ac­ceptance-of-responsibility reduction and that defen­dant’s lies were a proper basis for denying the adjustment. U.S. v. Thomas, __ F.3d __ (6th Cir. Aug. 6. 2019) No. 18-1592.

1st Circuit allows court to consider failure to identify accomplices in denying acceptance credit. (486) Defendant was involved in a carjack­ing in which a co‑conspirator shot and killed the driver. The district court denied an acceptance of responsibility reduction based on defendant’s re­fusal to disclose the identity of the other collabora­tors. The First Circuit held that in appropriate circumstances, a court may consider under § 3E1.1 whether a defendant truthfully has identified accomplices in the offense of conviction. However, if a defendant has not identified his accomplices because he genuinely fears retaliation, but his conduct otherwise demonstrates genuine remorse, a § 3E1.1 reduction might be appropriate. Here, it was unclear whether the court deemed defendant’s failure to identify his associates as sufficient, by itself, to preclude a § 3E1.1 reduction without regard to whether defendant knew the names of his accomplices or feared retaliation. Therefore, remand was necessary. U.S. v. Nunez-Rodriguez, 92 F.3d 14 (1st Cir. 1996).

 

1st Circuit upholds denial of third point reduction for acceptance of responsibility. (486) Defendant argued he was entitled to a third point reduction for acceptance of re­sponsibility.  The 1st Circuit upheld the de­nial.  Even though the district court made no explicit findings in denying a third point, the court’s sentence followed shortly after the prosecutor argued against the extra point, and the appellate court assumed that the prosecutor’s arguments were accepted.  De­fendant never contested the prosecutor’s claim that defendant did not provide com­plete information as to his involvement.  Since defendant did not plead guilty until af­ter the jury had been empaneled, he also did not provide “timely” notification of his guilty plea to permit the government to avoid the expense of trial preparation.  U.S. v. Lombardi, 5 F.3d 568 (1st Cir. 1993), superseded on other grounds by statute as stated in U.S. v. Martin, 363 F.3d 25 (1st Cir. 2004).

 

1st Circuit denies three level reduction to defen­dant who provided minimal details about offense. (486) The 1st Circuit rejected defendant’s claim that he should have re­ceived a three level, rather than a two level, reduction for acceptance of responsibility.  Defendant did not provide complete informa­tion about his own involvement in the offense.  He pro­vided only a “skeletal description” of the events sur­rounding the robbery and “minimal details” con­cerning his own partici­pation.  The fact that this reti­cence was prompted by a desire not to inform on a co-defendant did not change the analysis.  De­fendant also did not plead guilty in a timely fashion.  The par­ties did not reach a plea agreement until the eve of a second trial date, after the government had fully pre­pared for trial.  There was no suggestion that the gov­ernment unreasonably prolonged the negotia­tions in order to deprive defendant of the ad­ditional reduc­tion.  U.S. v. Donovan, 996 F.2d 1343 (1st Cir. 1993).

 

1st Circuit upholds acceptance of responsibil­ity provision against constitutional challenge. (484) Defendant argued that where a convicted defendant claims to be innocent, the accep­tance of responsibility provision coerces a de­fendant into waiving his or her right to assert his or her innocence on appeal.  The 1st Cir­cuit found no merit in the argument.  U.S. v. De Jongh, 937 F.2d 1 (1st Cir. 1991).

 

1st Circuit upholds constitutionality of guide­line for accep­tance of responsibility. (484) Defendant argued that the guideline permitting a two-point reduction for acceptance of re­sponsibility placed him in the “unconstitutional dilemma of abandoning his right to in­criminate himself or risking a higher sentence.”  Agree­ing with the 11th Circuit’s opinion in U.S. v. Henry, 883 F.2d 1010 (11th Cir. 1989), the 1st Circuit ruled that the guidelines “merely codify a tra­dition of le­niency and are not an impermissible burden of the exercise of constitu­tional rights.”  U.S. v. Paz-Uribe, 891 F.2d 396 (1st Cir. 1989).

 

2nd Circuit says third-level acceptance credit cannot be denied on ground that government had to prepare for evidentiary sentencing hearing. (486) Defendant pled guilty without a plea agreement to drug charges. He made certain objections to the PSR’s findings. The night before a scheduled Fatico evidentiary hearing, defendant withdrew all but one of his objections. The Fatico hearing was rescheduled and limited to the one remaining objection. At sentencing, the government recommended a two-level reduction for acceptance of responsibility, but refused to move for the third-level reduction under § 3E1.1(b) because defendant required the government to undergo extensive preparation for a Fatico hearing on multiple sentencing issues. The Second Circuit held that the government’s refusal to move for a third-point reduc­tion under § 3E1.1(b) was based on an unlawful reason. The plain language of § 3E1.1(b) refers only to prose­cution resources saved when the defendant’s timely guilty plea allows the government to avoid preparing for trial. Here, it was undisputed that defendant’s guilty plea was timely and spared the government from preparing for trial. A Fatico hearing is not a trial, and defendant’s post-plea objections to the PSR did not require the govern­ment to prepare “for trial.” U.S. v. Lee, 653 F.3d 170 (2d Cir. 2011).

 

2nd Circuit says defendant need not disclose others’ activities to receive additional acceptance reduction. (486) Defendant received a two-level acceptance of responsibility reduction. However, the district court denied the additional one-point reduction under § 3E1.1(b) because defendant had misrepresented the involvement of others in the conspiracy. The Second Circuit reversed, holding that § 3E1.1(b) refers only to the defendant’s “own misconduct” and “own involvement.” A defendant has satisfied the requirements for an adjustment under that section when he has described his own involvement in the crime. Once it is determined that a defendant has completely and truthfully disclosed his criminal conduct to the government, the inquiry under § 3E1.1(b)(1) is complete. U.S. v. Leonard, 50 F.3d 1152 (2d Cir. 1995).

 

2nd Circuit denies acceptance of responsibil­ity reduc­tion to defendant who refused to ad­mit guilt. (484) De­fendant contended he was wrongfully denied a reduction for accep­tance of responsibility because he entered a condi­tional plea and continued to challenge federal ju­risdiction.  The 2nd Circuit rejected this contention.  Defendant was denied the reduc­tion because at sen­tencing, he stated “I will go to my grave saying I did nothing wrong.”  Judge Lasker dissented, finding defen­dant’s statement was only evidence of defen­dant’s dis­agreement with the law as he now understood it.  U.S. v. Cook, 922 F.2d 1026 (2nd Cir. 1991).

 

2nd Circuit rules that requiring acceptance of respon­sibility for dismissed counts violated 5th Amendment. (484) Defen­dant argued that the trial court violated his 5th Amendment rights against self-incrimination by re­quiring him to accept responsibility for counts which had been dismissed as part of his plea agree­ment.  The 2nd Circuit agreed, finding that unless defendant’s state­ments were immunized from use in subsequent criminal prosecutions, the effect of requiring him to ac­cept re­sponsibility for crimes other than those to which he pled guilty or which he had been found guilty consti­tuted a penalty for refusing to incriminate himself in vi­olation of the 5th Amendment.  The court found that just be­cause the prosecution had agreed to dismiss counts did not remove the risk of self incrimi­nation posed by admis­sions made to a proba­tion officer. Addi­tionally, a rea­sonable inter­pretation of guideline § 3E1.1(a) and its 1988 amendment sup­ported this interpretation.  U.S. v. Oliveras, 905 F.2d 623 (2nd Cir. 1990).

 

2nd Circuit affirms constitutionality of guide­line § 3E1.1 (acceptance of responsibil­ity). (484) The 2nd Circuit rejected a defen­dant’s contention that the avail­ability of a sen­tence reduction to one who early admits per­sonal respon­sibility for the offense is the equivalent of an increase in sentence for one who does not.  The court held that the con­tention that a refusal to grant a reduction pe­nalizes those who maintain their innocence and go to trial was a meritless one.  Guideline § 3E1.1 (acceptance of responsibility) is neither unconsti­tutional nor an impermissible prejudice of the right to appeal in its require­ment that a person admit re­sponsibility to re­ceive a two level reduction in the of­fense level.  U.S. v. Parker, 903 F.2d 91 (2nd Cir. 1990).

 

3rd Circuit rejects acceptance of responsibility reduction despite admissions to police. (486) The Third Circuit upheld the denial of a reduction for acceptance of responsibility under § 3E1.1 even though defendant made “significant admissions” to investigating officers during the execution of a search warrant and during a subsequent inter­view. Defendant did not admit that he had personally committed the crimes charged in the indictment. Moreover, the adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial. U.S. v. Veksler, 62 F.3d 544 (3d Cir. 1995).

 

3rd Circuit denies acceptance of responsibility reduc­tion to defendant who raised entrapment defense at trial. (484) Defendant contended that he was entitled to a reduction for accep­tance of responsibility because he cooperated with gov­ernment agents, explained where he obtained his cocaine, and was fully debriefed by the gov­ernment.  He did go to trial and raise an entrapment defense, but pointed to U.S. v. Fleener, 900 F.2d 914 (6th Cir. 1990), in which the 6th Circuit held that assertion of an entrapment defense was not neces­sarily incon­sistent with acceptance of responsibility.  The 3rd Circuit re­jected defendant’s claim, finding it difficult to rec­oncile defendant’s claim of en­trapment with his claim that he accepted re­sponsibility.  Ordinarily, a claim of entrap­ment would seem to be the antithesis of acceptance of responsibil­ity, since the defendant, rather than accepting personal re­sponsibility, urges that the government bears responsibility for the offense.  Although it was possible to hy­pothesize a case in which a plea of entrapment was not inconsistent with acceptance of re­sponsibility, this was not such a case.  U.S. v. Demes, 941 F.2d 220 (3rd Cir. 1991).

 

3rd Circuit holds failure to cooperate with probation of­fice shows no acceptance of re­sponsibility. (486) Defen­dant ap­pealed denial of two-level reduction for accep­tance of re­sponsibility.  Defendant refused to co­operate with the pro­bation officer during presentence report, failed to appear at his original sen­tencing hearing and continued to contend he was entrapped.  On these facts the 3rd Circuit ruled that the district court’s ruling was not clearly erroneous.  U.S. v. Cianscewski, 894 F.2d 74 (3rd Cir. 1990).

 

4th Circuit rejects acceptance of responsi­bility re­duction despite defendant’s offer to cooperate. (485) The 4th Circuit affirmed the denial of a reduc­tion for acceptance of re­sponsibility, even though early in the pro­ceedings defendant approached the govern­ment with an offer to give testimony and actu­ally confirmed some aspects of the drug con­spiracy for the government.  The government did not find the information useful and was unwilling to en­ter into a plea agreement with defendant.  The district court’s conclusion that this exchange between defen­dant and the government was insufficient to demon­strate that defendant had accepted responsibility was not clearly erroneous.  U.S. v. Riley, 991 F.2d 120 (4th Cir. 1993).

 

4th Circuit says court considered all the facts in denying acceptance of responsibil­ity reduction. (486) Defendant stole money orders worth a poten­tial $5,060,000, and re­turned all but $698,000 worth.  He argued that the district court improperly used a “per se” rule to deny him an accep­tance of re­sponsibility reduction, requiring complete as­sistance to receive the reduction, without re­gard to whether defendant had indicated his acceptance in other ways.  The 4th Circuit found that the district court did not base its decision solely on the fact that defen­dant did not fully cooperate with authorities.  Rather, the district court based its decision on a number of factors.  As factors weighing against re­duction, the court noted that defen­dant had not vol­untarily made restitution, had failed to fully assist the authorities in re­covering the fruits of the offense, and had de­clined to reveal to whom those money orders had been given.  In favor of a reduction, the court considered both that defendant had pled guilty to the charges and had turned over some of the missing money or­ders.  U.S. v. Frazier, 971 F.2d 1076 (4th Cir. 1992).

 

5th Circuit reverses government’s withholding of acceptance reduction for refusal to waive right to appeal. (486) Defendant pled guilty to reentry by a deported alien, in violation of 8 U.S.C. § 1326. At sentencing, the government withheld an additional one-level reduction under § 3E1.1(b) for pretrial acceptance of responsibility solely because defendant refused to waive his right to appeal. Amendment 775 became effective November 1, 2013, after defendant was sentenced, but while his appeal was pending. Amendment 775 provides that the government should not withhold a § 3E1.1(b) motion based on interests not identified in § 3E1.1, such as whether the defendant agrees to waive his or her right to appeal. After Amendment 775 became effective, the government conceded error. The Fifth Circuit found that the amended guideline applied, vacated defendant’s sentence, and remanded for resentencing. All of the other judges in the circuit reviewed the opinion, and agreed, en banc, that U.S. v. Newson, 515 F.3d 374 (5th Cir. 2008) was abrogated by Amendment 775. U.S. v. Palacios, __ F.3d __ (5th Cir. May 21, 2014) No. 13-40153.

 

5th Circuit denies acceptance reduction where defen­dant refused to cooperate with government. (486) The PSR stated that at his interview with the probation officer, defendant would not comment on the circumstances surrounding his conviction unless given an estimate of the guideline applications. Defendant objected to the PSR, claiming, in part, that he was “ready, willing and able to cooperate in this matter at any time, but as of this date, no requests have been received by Defendant.” At sentencing, the FBI case agent testified that on three occasions he had attempted to talk to defendant, but that defendant had not cooperated or given him any information about the robbery. Given the finding in the PSR and the testimony at sentencing, the Fifth Circuit upheld the denial of an accep­tance of responsibility reduction. U.S. v. Nguyen, 190 F.3d 656 (5th Cir. 1999).

 

5th Circuit says incriminating statement did not justify acceptance reduction because defendant also claimed it was involuntary. (486) Defendant and two other inmates escaped from prison. He remained a fugitive for four and one-half years before being apprehended and deported to the U.S. He argued that he was entitled to a § 3E1.1 reduction because he cooperated with authorities at the time of his arrest, gave incriminating statements regarding the offense, and only chose to exercise his right to trial to challenge the court’s jurisdiction and the voluntariness of his confession. The Fifth Circuit held that defendant did not demonstrate acceptance of responsibility, despite his pre-trial statement regarding his role in the offense. He did not timely withdraw from criminal activity or surrender to authorities. He refused to make a statement to the probation officer upon advice from counsel, and made no statement to the court at sentencing. His claim that his statement to officers during his airplane ride to the U.S. warranted the reduction was inconsistent with his contention that the statement was involuntary. U.S. v. Chapa-Garza, 62 F.3d 118 (5th Cir. 1995).

 

5th Circuit refuses to require reduction despite written statement of accountabil­ity. (486) Defendant argued that the district court’s finding that he had not accepted re­sponsibility was clearly erroneous because he furnished a written statement of accountabil­ity.  The 5th Circuit found no error.  The probation officer recommended against the credit because defendant did not make a statement relative to his participation in the offense.  U.S. v. Maseratti, 1 F.3d 330 (5th Cir. 1993).

 

5th Circuit affirms denial of accep­tance of respon­sibility reduction to defendant who made no at­tempt to make restitution. (486) Defendant fraudu­lently obtained insur­ance pro­ceeds.  The 5th Circuit affirmed that defendant was not entitled to a reduc­tion for acceptance of responsibility.  Defen­dant made no effort to repay the insur­ance com­panies, and instead transferred funds that would have been available to repay them into an account in someone else’s name.  Defen­dant gave no assis­tance to authori­ties in the recovery of the money.  U.S. v. Lghodaro, 967 F.2d 1028 (5th Cir. 1992).

 

5th Circuit rejects reduction where defen­dant only acknowledged what was already known to govern­ment. (486) The 5th Cir­cuit found that there was suffi­cient support in the record for the district court’s denial of a reduction for acceptance of responsibility.  In addi­tion to the false statements defendant made to IRS agents, the presentence report showed a contin­ued fail­ure by defendant to disclose the source of his cash de­posits, at­tempts to excuse his acts based on tragic fam­ily difficulties, an attempt to cover up the fact that cer­tain pipe was stolen, his continu­ation of a lifestyle be­yond his financial means, and less than full cooperation in supplying fi­nancial information to the probation offi­cer.  Defendant was willing to ac­knowledge only what was known to the government through its own investi­gation and did not provide any further information.  U.S. v. Brigman, 953 F.2d 906 (5th Cir. 1992).

 

5th Circuit affirms denial of acceptance of re­sponsibility reduction to defendant who stood trial. (484) Defendant contended that he was entitled to a reduction for acceptance of re­sponsibility because he abandoned his fraudu­lent scheme voluntarily and the sentencing court refused the re­duction only because he in­sisted on going to trial.  The 5th Circuit upheld the denial of the reduction.  The district court concluded that defendant had not abandoned his scheme, and that he was untruthful with authorities.  Defendant’s de­cision to stand trial was only one of several factors men­tioned in the presentence report.  U.S. v. Hooten, 933 F.2d 293 (5th Cir. 1991).

 

5th Circuit rejects acceptance of responsibility reduc­tion for defendant who claimed entrap­ment. (484) De­fendant claimed he was entitled to a reduction for ac­ceptance of re­sponsibility because the evidence pre­sented at trial demon­strated his sincere remorse for his drug of­fense.  He con­ceded responsibility for his acts at his rearraignment and at his sentencing, consented to a search of his residence at the time of his arrest, and ad­mitted to the federal agent that he intended to use the money seized from his residence to pur­chase marijuana.  The 5th Circuit upheld the district court’s finding.  The presentence report indicated that during the presentence interview, defendant claimed that he had been en­trapped into committing the drug offense by a persistent confidential informant and that the money found at the time of his arrest had been borrowed from his father and brother to establish a used car busi­ness.  Although defendant’s attor­ney claimed that defendant, for whom English was a second language, may not have known the meaning of the word en­trapped, the district court acted within its discretion in re­jecting this explana­tion.  U.S. v. Villarreal, 920 F.2d 1218 (5th Cir. 1991).

 

5th Circuit rules acceptance of responsibility provision does not violate right to jury trial. (484) The fact that guideline § 3E1.1 provides for reduced sentences for those defen­dants who “clearly demonstrate a recogni­tion and af­firm­a­tive acceptance of personal responsibil­ity” does not violate the 6th Amendment right to a jury trial even though its purpose is to encourage guilty pleas.  It is not unconstitutional for the govern­ment to bargain for a guilty plea in exchange for a lower sen­tence.  Further­more, the guideline reduction is not au­tomatic; a defen­dant must establish his sincere contri­tion.  U.S. v. White, 869 F.2d 822 (5th Cir. 1989).

 

5th Circuit finds no acceptance of responsi­bility by defen­dant who went to trial. (484) Defendant contended that he was improperly denied a reduction for accep­tance of respon­sibility because he refused to plead guilty and went to trial.  The 5th Circuit found that this was at least partially true, but there was no er­ror by the district court.  Defendant contin­ued to maintain his innocence through the trial and up to the moment of sentencing.  “Refusal to admit factual guilt . . . is inconsistent with ac­ceptance of responsibility when such re­fusal is not based in a legal or technical defense.”  The dis­trict court’s de­termination that defendant’s eleventh hour change of heart did not demon­strate acceptance of responsi­bility was not “without foundation.”  U.S. v. Garcia, 917 F.2d 1370 (5th Cir. 1990).

 

5th Circuit finds no acceptance of responsi­bility where de­fendant refused to cooperate. (486) Defendant re­fused to provide informa­tion about the smuggling oper­ation and its participants.  The district court refused to grant a two level reduction for acceptance of responsi­bility because of his un­willingness to cooperate, and the 5th Cir­cuit affirmed the district court’s ruling.  U.S. v. Fabregat, 902 F.2d 331 (5th Cir. 1990).

 

5th Circuit reaffirms that denial of acceptance of responsi­bility adjustment does not penalize right to trial. (484) Re­lying on U.S. v. White, 869 F.2d 822 (5th Cir. 1989), the 5th Circuit reaffirmed that al­though a defendant who denies her guilt at trial may have difficulty persuading a sentencing judge that she has made a timely acceptance of responsibil­ity, there is no violation of the 6th Amend­ment.  “Denial of the credit is not a penalty for standing trial although not in­frequently it may factor into a forfei­ture of an element of legislative grace.”  U.S. v. Stephenson, 887 F.2d 57 (5th Cir. 1989), abrogation on other grounds recognized by U.S. v. Johnon, 961 F.2d 1188 (5th Cir. 1992).

 

5th Circuit holds failure to identify higher ups was proper ground for denial of acceptance of responsibil­ity adjustment. (486) The 5th Cir­cuit held that the dis­trict court properly de­nied an acceptance of responsibility adjustment for a drug smuggler who refused to name those who had hired him to smuggle marijuana or to identify significant facts relating to the opera­tion.  The denial was warranted even though the defendant claimed to have accepted responsi­bility by pleading guilty and co­operating with the author­ities.  A mere plea of guilty does not automatically entitle a defen­dant to the benefit.  U.S. v. Tellez, 882 F.2d 141 (5th Cir. 1989).

 

5th Circuit rules defendant’s failure to plead guilty may be considered in determining “acceptance of responsi­bility.” (484) Quot­ing U.S. v. White, 869 F.2d 822, 826 (5th Cir. 1989), the Fifth Cir­cuit repeated that “[a] defen­dant who puts the government to its proof by chal­lenging factual guilt may find it difficult, af­ter con­viction, to per­suade the district court that he is enti­tled to this reduc­tion.”  The court ruled that any argument that guideline § 3E1.1 places an unconstitutional re­stric­tion on the right to a jury trial was foreclosed by White.  U.S. v. Gordon, 876 F.2d 1121 (5th Cir. 1989).

 

5th Circuit holds defendant who refused to elaborate on circumstances surrounding the offense was not entitled to acceptance of re­sponsibility adjustment. (486) The 5th Circuit held it was proper for the sentencing court to deny an accep­tance of responsibility adjust­ment to a heroin dealer who: (1) pled guilty only when confronted with the govern­ment’s overwhelming evidence of quilt on 5 counts; (2) failed to surrender himself; (3) failed to elaborate on the circumstances surrounding the offense to the probation officer; and (4) refused to allocute at sentencing or oth­erwise express remorse or contrition.  U.S. v. Nevarez-Arreola, 885 F.2d 243 (5th Cir. 1989).

 

6th Circuit denies acceptance credit for refusing to provide information about offense of conviction. (486) The district court denied a reduction for acceptance of responsibility because defendant refused, on the advice of counsel, to discuss his role in the offense with his probation officer. The 6th Circuit affirmed. Although a defendant may remain silent about relevant conduct without affecting his ability to obtain the reduction, a defendant may not refuse to provide information about the offense of conviction. The mere fact that defendant timely entered a guilty plea did not entitle him to the reduction. U.S. v. Meacham, 27 F.3d 214 (6th Cir. 1994).

 

6th Circuit upholds acceptance of responsi­bility provi­sions against 5th and 6th Amend­ment challenges. (484) Defen­dant contended that guideline § 3E1.1 had an uncon­stitutional chilling effect on her 5th Amend­ment right against self-incrimination and her 6th Amendment right to a jury trial by forcing her to plead guilty in order to receive the re­duction in offense level.  The 6th Circuit re­jected these ar­guments, noting that § 3E1.1 authorizes adjustments for those who go to trial, and there is no guarantee that one who pleads guilty will receive the reduction.  Al­though § 3E1.1 might affect how criminal defendants choose to exercise their constitu­tional rights, “not every burden on the ex­ercise of a constitutional right, and not every pressure or encouragement to waive such a right, is in­valid.”  U.S. v. Cordell, 924 F.2d 614 (6th Cir. 1991).

 

6th Circuit upholds finding that defendant who main­tained innocence did not accept re­sponsibility. (484) Upon convic­tion, the defen­dant expressed regret for the scheme, but never admitted any fraudulent intent.  De­fendant continued to maintain his innocence and claimed that he failed to re­port the scheme as carried out by his codefendant because it had “gone too far.”  The 6th Circuit upheld the district court’s finding that defendant had not accepted responsibility.  U.S. v. Slo­man, 909 F.2d 176 (6th Cir. 1990).

 

6th Circuit holds that “entrapment defense” does not pre­clude reduction for acceptance of responsibility. (484) At his trial for mailing child pornography defen­dant presented an en­trapment defense.  At sentencing, the district court re­duced defendant’s offense level by two for acceptance of re­sponsibility.  The govern­ment appealed, claiming that an en­trapment defense is incon­sistent with the notion of accep­tance of responsibility.  The 6th Circuit disagreed, holding a defendant raising an en­trapment defense should be treated the same as a defendant pleading not guilty.  Defendant was properly given a reduction for cooperating with agents dur­ing a search of his house.  U.S. v. Fleener, 900 F.2d 914 (6th Cir. 1990).

 

6th Circuit upholds denial of reduction for ac­ceptance of responsibility where defendant re­fused to provide finan­cial information. (486) At the sentencing hearing the District Court refused to give defendant a 2-point reduc­tion for acceptance of respon­si­bil­ity because of his re­fusal to reveal his sources of cocaine and his refusal to provide financial information to the court so that a fine could be imposed.  The 6th Circuit affirmed, holding that the court’s re­fusal was not “without foundation.”  The court commented however, that it was “uncertain” whether the refusal to reveal sources was an appropriate consideration in determining whether to award a reduc­tion for acceptance of responsibility.  That factor may have been more appropriately considered in § 5K1.1, which covers “substantial assistance” to the gov­ernment, since acceptance of responsi­bility is directed to de­fendant’s affirmative recognition of responsibility for his own con­duct.  U.S. v. Cross, 900 F.2d 66 (6th Cir. 1990).

 

6th Circuit holds acceptance of responsibility provision does not unconstitutionally interfere with appeal pro­cess. (484) Defendant con­tended the acceptance of re­sponsibility pro­vision is unconstitutional because a per­son who is going to appeal his conviction cannot confess his guilt.  The 6th Circuit rejected this argu­ment, comment­ing that refusal to accept re­sponsibility does not result in a sentence enhance­ment.  Thus, the defen­dant’s right to appeal is not impeded.  The acceptance of re­sponsibility plea is in the same category as considera­tion shown co-operating witnesses.  U.S. v. Mon­sour, 893 F.2d 126 (6th Cir. 1990).

 

6th Circuit finds no double jeopardy violation from use of information both for acceptance of responsibility and to sentence at high end of guidelines. (484) Defendant argued that the district court violated the double jeop­ardy clause by considering defendant’s statements to the pro­bation department during two phases of sen­tencing.  The information was used to grant a reduction in base offense level for acceptance of responsibility and to im­pose a sentence at the high end of the guideline range.  The 6th Circuit affirmed the sentence, holding that the double jeopardy clause was not implicated be­cause de­fendant was only tried once for his crimes.  U.S. v. Ford, 889 F.2d 1570 (6th Cir. 1989).

 

7th Circuit denies reduction for failure to demonstrate moral acceptance of responsibi­lity. (486) Defendant stipulated that he lied to INS agents at least twice during their investigation, refused to make a statement for the PSR concerning his version of the offense, and gave untruthful or incomplete information to the probation officer writing the PSR. The district court denied defendant a § 3E1.1 reduction on the grounds that he had not demonstrated a moral acceptance of responsi­bility and had not cooperated with the probation officer’s investigation. The Seventh Circuit upheld the denial of the § 3E1.1 acceptance reduction. The court did not deny the reduction because defendant went to trial, but because defendant failed to demonstrate a moral acceptance of responsibility. It was appropriate for the court to weigh defendant’s plea for clemency and his statement nominally accepting culpability along with his other statements and his demeanor in deciding whether he had accepted responsibility. The court also permissibly considered defendant’s lack of cooperation with the probation depart­ment. U.S. v. Herrera-Ordones, 190 F.3d 504 (7th Cir. 1999).

 

7th Circuit denies third-level reduction where defendant denied co-conspirators’ involvement. (486) Under § 3E1.1(b)(1), a defendant can be given a third level reduction for acceptance of responsibility if he timely provides complete information to the government concerning his own involvement in the offense. Defendant argued that his statement to the FBI the day after his arrest concerning his own involvement in a drug conspiracy entitled him to the additional reduction. The 7th Circuit disagreed, since defendant later retracted portions of his statement concerning the involvement of his co-conspirators. In the context of a conspiracy, a defendant’s denial of his co-conspirators’ involvement could directly affect the seriousness and scope of his own offense and minimize his culpability. Even if defendant’s main motivation was to protect his co-conspirators, the result was still a less than a complete account of his own involvement in the conspiracy. U.S. v. Francis, 39 F.3d 803 (7th Cir. 1994).

 

7th Circuit denies reduction where defendant did not accept responsibility for one of five counts. (486) Defendant asserted he was entitled to a reduction for acceptance of responsibility because he cooperated with FBI agents and his probation officer. The 7th Circuit held that defendant was not entitled to the reduction. Although he admitted possessing stolen vehicles, he “stoutly denied” his guilt of bank fraud charges. He then proceeded to trial on all charges, and continued to deny his guilt on the bank fraud charge in his interview with the probation officer and at sentencing. U.S. v. Evans, 27 F.3d 1219 (7th Cir. 1994).

 

7th Circuit rejects reduction where defen­dant re­fused to be interviewed in depth. (486) The 7th Circuit rejected defendant’s claim that he cooperated with law enforce­ment officials and therefore deserved a reduc­tion for acceptance of responsibility.  There was no indication that defendant admitted any in­volvement in the offenses charged or that he volun­teered in any way to assist au­thorities in recovering the missing funds.  In fact, he refused to be inter­viewed in depth about the scheme.  The court also rejected defendant’s claim that his nolo contendere plea saved the government the time and ex­pense of a long trial.  Although section 3E1.1 encourages judi­cial and law enforcement economy, that is not its only purpose.  U.S. v. Boyle, 10 F.3d 485 (7th Cir. 1993).

 

7th Circuit denies reduction to defen­dant who did not withdraw from crim­inal activi­ties. (486) The 7th Circuit af­firmed the de­nial of a reduction for ac­ceptance of responsi­bility, in light of evidence that defendant did not vol­untarily withdraw from his criminal ac­tivities in a timely fashion, did not pro­vide voluntary assistance to officials, and stated that he felt “pressured.”  More­over, defendant received an en­hancement for obstruc­tion of justice be­cause of his attempt to “mold” a wit­ness’s testimony to conform with his own grand jury testimony.  U.S. v. Curry, 977 F.2d 1042 (7th Cir. 1992).

 

7th Circuit rules that entrapment de­fense did not entitle defendant to ac­ceptance of responsibility reduction. (486) Defendant argued that the district court should not have denied him a re­duction for ac­ceptance of re­sponsibility because he presented an en­trapment defense.  According to de­fendant, the presentation of the entrapment defense could be viewed as his acknowledge­ment of his par­ticipation in illegal con­duct.  The 7th Circuit affirmed the de­nial of the reduction.  The trial judge stated that he appreciated de­fendant’s contentions regarding his acknowledge­ment on the stand of his participa­tion in illegal conduct, but believed that defen­dant’s position was also “one of to­tal de­nial of his obligation in this matter.”  U.S. v. Haddad, 976 F.2d 1088 (7th Cir. 1992).

 

7th Circuit says court could properly re­ject proba­tion officers’ acceptance of re­sponsibility recom­mendation. (486) The 7th Circuit rejected defen­dant’s claim that the district court should have de­ferred to the probation officer’s recommendation that he receive a reduction for acceptance of responsibil­ity.  A probation officer’s rec­ommendation for such a reduction is not enti­tled to special deference.  Defen­dant failed to accept responsibility for all of his criminal acts.  Although he admitted committing the arson, he did not accept responsibility for his mail fraud.  Even if the average person does not appreci­ate the statutory definition of mail fraud, defendant was convicted of having en­gaged in this conduct and therefore was re­quired to accept respon­sibility for it in order to receive the re­duction under section 3E1.1.  Finally, the district judge found that defen­dant’s purported “acceptance” came too late in the proceedings, and that his characteri­zation of the fire he set as a “needless mistake that happened to him” was hardly an affirma­tive acceptance.  De­fendant’s at­tempt to ac­cept responsibil­ity was in reality an effort to decrease his sentence. U.S. v. Guadagno, 970 F.2d 214 (7th Cir. 1992).

 

7th Circuit denies acceptance of re­sponsibility re­duction where defendant re­fused to speak with pro­bation officer. (486) Defendant pled guilty to posses­sion of a prohibited object by a federal prison in­mate.  The 7th Circuit affirmed that it was proper to refuse to grant a reduction for ac­ceptance of re­sponsibility in part because de­fendant refused to be interviewed by the pro­bation officer.  Application note 3 to section 3E1.1 states that failure to cooper­ate with the court’s efforts to gather information is inconsis­tent with acceptance of responsibil­ity.  The opinion in U.S. v. En­quist, 745 F.Supp. 541 (N.D. Ind. 1990) is not to the contrary.  Al­though the de­fendant in Enquist was granted a reduc­tion despite his failure to cooperate with his probation officer, this was because other factors convinced the court that the defendant had accepted responsibil­ity.  Here, defendant’s only explanation for his refusal to coop­erate was a generalized mis­trust of persons in au­thority and a fear that other prisoners would retaliate against him if he provided damaging information about them.  U.S. v. Beal, 960 F.2d 629 (7th Cir. 1992).

 

7th Circuit rejects acceptance of responsi­bility re­duction to defendant who “waffled” in his coopera­tion with authorities. (486) The 7th Circuit found no clear error in dis­trict court’s denial of a reduc­tion for accep­tance of responsibility to a defendant who “waffled” in his dealings with the police.  The district court found that defendant cooper­ated and then dis­sembled;  he made state­ments about his drug activi­ties and then re­canted those state­ments.  U.S. v. McGuire, 957 F.2d 310 (7th Cir. 1992).

 

7th Circuit denies acceptance of responsibility reduc­tion despite defendant’s cooperation with government. (486) The district court de­nied defendant a reduction for acceptance of responsibility, even though he provided exten­sive informa­tion concerning his marijuana distri­bution network, because he was reluctant to pro­vide tes­timony in connection with the information he pro­vided.  The 7th Circuit af­firmed the dis­trict court’s decision, al­though it found it to be a “close ques­tion.”  At the sentenc­ing hearing, the district judge stated that it had “grave doubts” about the veracity of anything de­fendant told the court, and that defendant was motivated to say anything to ad­vance his cause, including making illusory promises in re­turn for favorable sentencing recommenda­tions.  Since the district judge was in the best position to de­termine this issue, the appellate court refused to find an abuse of discretion.  U.S. v. Atterson, 926 F.2d 649 (7th Cir. 1991).

 

7th Circuit refuses acceptance of responsibil­ity reduc­tion to defendant who refused to co­operate in presen­tence investi­gation. (486) Although at trial and at sen­tencing defendant expressed remorse, he “fought tooth and nail to avoid con­viction, and he refused to cooperate with the probation of­fice’s presentence investi­gation.”  Therefore, the district judge did not abuse his discretion in determining that defen­dant’s last minute apology was “a deceitful little show.”  U.S. v. Fonner, 920 F.2d 1330 (7th Cir. 1990).

 

7th Circuit remands because unclear whether judge confus­ed acceptance of responsibility with govern­ment assistance. (486) After de­fendant refused to tell the dis­trict court any­thing about his sources or accomplices, the judge declined to grant defendant a reduction for accep­tance of responsibility.  The 7th Cir­cuit remanded be­cause the record was unclear whether the judge con­fused the stan­dards for acceptance of responsibility with those of substan­tial assistance to the government.  Al­though the judge sug­gested that the court needed infor­mation concerning defen­dant’s sources because defen­dant was not being can­did about his own acts, the judge’s statements could also be interpreted as incorrectly stat­ing that a defendant must cooperate with the govern­ment in order to receive a reduction for accep­tance of responsibility.  U.S. v. Escobar-Mejia, 915 F.2d 1152 (7th Cir. 1990).

 

7th Circuit upholds denial of acceptance of responsi­bility for defendant who lied to proba­tion officer. (486) Under a plea agreement, defendant agreed to pay resti­tution in con­nection with his theft of government prop­erty, and the gov­ernment agreed to recommend a two-level reduction in de­fendant’s base offense level for ac­ceptance of responsibility.  How­ever, defen­dant inten­tionally withheld infor­mation from his probation officer concerning his expected receipt of cer­tain pension funds.  The 7th Circuit held that the evidence sup­ported the district court’s finding that defen­dant had im­peded proceed­ings, and therefore the court was justified in de­termining that defen­dant had not accepted responsibil­ity.  U.S. v. Larsen, 909 F.2d 1047 (7th Cir. 1990).

 

7th Circuit rules that statements made to probation of­ficer may be used to deny accep­tance of responsibility adjust­ment even if counsel is not present. (484) The 7th Cir­cuit held that neither the 5th Amendment privilege against compelled self incrimination nor the 6th Amend­ment right to counsel pre­cluded the use during sentenc­ing of statements made to a probation officer by a con­victed defendant in the absence of his attorney.  The trial judge’s use of the state­ments to deny an acceptance of re­sponsibility ad­justment was proper.  In this case, the evi­dence supported a finding that the defendant was not truthful with the probation officer who was preparing the presentence re­port, thus warranting the denial of the ad­justment.  The Sixth Amendment is not appli­cable be­cause the preparation of a presentence report is not a “critical stage” of the proceed­ings.  U.S. v. Jack­son, 886 F.2d 838 (7th Cir. 1989).

 

8th Circuit upholds reliance on FBI reports that defendant recanted previous admission. (486) At sentencing, the government submitted FBI reports from defendant’s interviews on August 14, 2008 and January 6, 2010. These reports recounted that, in an August 14, 2008 interview, defendant admitted his criminal con­duct. However, in a January 6, 2010 interview, defendant recanted those very admissions, deny­ing his criminal conduct. The Eighth Circuit held that the district court properly considered the FBI reports in denying defendant an acceptance of responsibility reduction. The rules of evidence do not apply in the context of sentencing hear­ings, and courts may rely on hearsay or other typically inadmissible evidence if that evidence bears sufficient indicia of reliability. Defendant did not object to the factual findings contained in the PSR, including that defendant had recanted his previous statements to law enforcement. U.S. v. Shade, 661 F.3d 1159 (8th Cir. 2011).

 

8th Circuit says government’s opposition to accept­ance credit was not plain error breach of plea agreement. (486) Defendant argued for the first time on appeal that the government breached his plea agreement by failing to recommend that he receive a reduction for acceptance of responsi­bility. The govern­ment argued that defendant failed to comply with the plea agree­ment when he sent a letter to the probation officer that made several misleading or untrue state­ments. Defen­dant claimed in the letter that he believed his 1981 pardon resulted in the reinstatement of his gun rights. However, he continued to engage in unlawful conduct even after he was advised by ATF agents that he was a prohibited person and could not be involved in firearms sales. Defendant’s letter also implied that his only misdeed was “touching” his co-defen­dant’s guns, when he actually negotiated sales for his co-defendant’s business. The Eighth Circuit held that the government’s recommenda­tion against the acceptance reduction did not amount to a plain error breach of the plea agreement. The plea agreement did not preclude the government from making a good faith argument that defendant did not satisfy one or more of the conditions entitling him to the recommen­da­tion. U.S. v. Smith, 590 F.3d 570 (8th Cir. 2009).

 

8th Circuit denies acceptance reduction to defendant who disputed drug quantity. (486) Defendant contended that he only went to trial because he disputed the amount of methamphet­amine the government attributed to him. He pointed to his statement to police as proof that he admitted his conduct prior to the trial. However, just because defendant cooperated did not mean he was entitled to an acceptance of responsibility adjustment. By disputing the amount of metham­phetamine he was responsible for, he put the government to its proof and challenged his factual guilt. Therefore, the District Court was within its discretion to deny defendant an adjust­ment for acceptance of responsi­bility. U.S. v. Johnston, 353 F.3d 617 (8th Cir. 2003).

 

8th Circuit denies reduction where defendant did not cooperate and did not withdrawn from criminal conduct. (486) Defendant argued that he was entitled to an acceptance of responsibility reduction under § 3E1.1 because he admitted the substantive offense. The Eighth Circuit upheld the denial of the reduction because defendant did not cooperate with the government investigation and did not voluntarily withdraw from criminal conduct. U.S. v. Hawkins, 78 F.3d 348 (8th Cir. 1996).

 

8th Circuit denies reduction to defendant who refused to discuss case with probation officer. (486) The district court denied defendant an acceptance of responsibility reduction, finding this was not one of the rare situations where the reduction is appropriate for a defendant who has gone to trial. Defendant refused to discuss his criminal conduct with his probation officer. The 8th Circuit found no error in the denial of the reduction. U.S. v. Karam, 38 F.3d 467 (8th Cir. 1994).

 

8th Circuit denies acceptance of re­sponsibility re­duction where primary mo­tivation for cooperation was to ob­tain sen­tence reduction. (486) The 8th Circuit af­firmed the district court’s de­nial of a reduc­tion for acceptance of re­sponsibility, even though defendant vol­untarily admitted his in­volvement in the offenses to the government and offered to cooperate in further investiga­tions.  Defendant’s primary motive in cooper­ating with the government was to obtain a re­duction in his sentence, and was not based on a sense of remorse over his past conduct.  Defendant also put the government to its burden of proof by pleading not guilty to all counts.  U.S. v. Davila, 964 F.2d 778 (8th Cir. 1992).

 

8th Circuit denies credit for acceptance of respon­sibility where defendant refused to discuss her in­volvement. (486) The 8th Circuit upheld the district court’s denial of a reduction for acceptance of re­sponsibility, where the district court relied on the presen­tence report, which indicated that defendant withheld a credit bureau report from the pro­bation offi­cer, refused to discuss her involve­ment in the of­fense, and stated that she signed the plea agreement under duress.  U.S. v. Miller, 951 F.2d 164 (8th Cir. 1991).

 

8th Circuit affirms denial of acceptance of responsibil­ity reduction despite defen­dant’s assis­tance. (486) Defen­dant con­tended that he should have received a reduc­tion for ac­ceptance of responsibility be­cause he voluntarily termi­nated his criminal activ­ity, provided truthful admis­sions, assisted authorities in the recovery of the fruits and instru­mentalities of the of­fense, and wore a body wire to a meeting with his drug source.  The 8th Circuit found that the denial of the re­duction was not clearly erroneous.  De­fendant’s ac­ceptance of responsibility was “equivocal.”  At one point in the sen­tencing hearing defendant acknowl­edged his accep­tance of responsibility, but later in the hear­ing said that he was not responsible because his drug source made him commit the of­fense. U.S. v. Laird, 948 F.2d 444 (8th Cir. 1991).

 

8th Circuit finds no acceptance of responsi­bility by defen­dant who failed to provide in­formation to proba­tion officer. (486) The 8th Circuit found that the record supported the district court’s denial of a reduction for accep­tance of re­sponsibility.  The record indicated that defendant failed to provide information to his probation officer.  Therefore, it also re­jected defendant’s claim that he was denied the re­duction because he asserted his constitu­tional right to a trial.  U.S. v. Payne, 923 F.2d 595 (8th Cir. 1991).

 

8th Circuit holds that defendant was not pe­nalized for at­tempting to withdraw his guilty plea. (484) At the time of sentencing, the de­fendant attempted to with­draw his guilty plea and repeatedly asserted that he did not use a gun during the robbery.  The district court re­fused to allow him to with­draw his plea, and refused to grant him a two level reduction for acceptance of re­sponsibility.  On appeal, the defendant argued that the district court un­fairly denied him credit for acceptance of re­sponsibility because he attempted to with­draw his guilty plea.  The majority rejected the ar­gument, hold­ing that his “repeated refusals to acknowledge that he used a gun during the course of his crimes demon­strated his refusal to personally accept responsibility.”  Judge Bright ex­pressed concern that the defendant had been punished for attempting to exercise his constitu­tional right to trial by withdrawing his guilty plea.  However, since that issue had not been directly raised, he concurred in the result.  U.S. v. Carroll, 908 F.2d 340 (8th Cir. 1990).

 

8th Circuit finds acceptance of responsibility provision is not unconstitutionally vague. (484) On appeal, defen­dant contended that ac­ceptance of responsibility provi­sion was uncon­stitutionally vague.  The 8th Circuit re­jected this argu­ment, holding that “there is no constitu­tional right to sen­tencing guidelines or more generally, to a less discretionary applica­tion of sentences than that permitted prior to the guidelines.”  The limitations the guidelines place on a judge’s discretion cannot violate a defendant’s right to due process by being “vague.”  The defendant’s challenge was “uniquely absurd” because ac­ceptance of re­sponsibility is an attempt to individualize sen­tencing.  The guidelines and commentary have enough “flesh” to prevent a successful attack on vague­ness grounds.  U.S. v. Wivell, 893 F.2d 156 (8th Cir. 1990).

 

8th Circuit holds denial of reduction for ac­ceptance of responsibility was pro­per. (486) Giving great deference to the sentencing court on this issue, the 8th Circuit held that the trial court had sufficient grounds to deny the de­fendant a two point re­duction in his base of­fense level for acceptance of respon­sibility.  The defendant did not make voluntary and truth­ful admissions to the police af­ter his ar­rest.  His plea of guilty, by itself, was not enough to en­title him to such a reduction.  He also failed to cooperate with the probation of­ficer who interviewed him.  Provid­ing the name of the man who had arranged for him to trans­port drugs was not enough, given that the de­fendant did not voluntarily terminate his illegal conduct or sur­render himself to the authorities.  On the whole, the trial court did not abuse its discretion in de­ciding this issue.  U.S. v. Thompson, 876 F.2d 1381 (8th Cir. 1989).

 

8th Circuit holds that defendant was not pe­nalized for exercising his constitutional right to jury trial. (484) The 8th Circuit noted that the guidelines do not fore­close an adjustment for acceptance of responsibility even for those who do not plead guilty.  Here the defendant did not demonstrate a recognition of personal responsi­bility.  The trial court did not err in declining to give the defendant credit for ac­ceptance of responsibility.  U.S. v. Young, 875 F.2d 1357 (8th Cir. 1989).

 

8th Circuit rules decrease in offense level for accep­tance of responsibility does not depend on whether de­fendant pled guilty. (484) De­fendant argued that § 3E1.1 which pro­vides for a two point reduction in the base of­fense level for a accep­tance of responsibility in­fringed upon his right to a jury trial.  The 8th Circuit disagreed.  By its clear terms, the provi­sion applies re­gard­less of whether the defen­dant went to trial or pled guilty.  The fact that a defendant who goes to trial and denies his guilt may have a more difficult time in per­suading a judge of his sincerity is re­grettable, but not unlawful.  U.S. v. Young, 875 F.2d 1357 (8th Cir. 1989).

 

9th Circuit says post-arrest cooperation does not support acceptance for defendant who went to trial. (486) After his arrest for drug trafficking, defendant admitted some of his illegal conduct and offered to cooperate with the authorities. Over the next two weeks, defendant gave the officers information about his co-conspirators and helped them in intercepting several shipments of drugs, but he was not entirely truthful with investigators. When the government declined to give defendant complete immunity, defendant ceased cooperat­ing. He was later convicted at a trial where he contested every count against him and testified falsely. The district court declined to give defendant an accep­tance of responsibility adjustment, finding defendant’s attempts to cooperate “insincere.” The Ninth Circuit found that defendant’s post-arrest, pretrial efforts to cooperate did not entitle him to an acceptance adjustment. U.S. v. Wilson, 392 F.3d 1055 (9th Cir. 2004).

 

9th Circuit says admitting firearm possession did not admit possession of machinegun. (486) Defendant was charged with possessing a machine gun. At trial, he conceded that he owned a semiautomatic weapon, but he argued that the gun was not a machine gun.  Accord­ingly, the government put on evidence to show that the firearm was fully automatic. The Ninth Circuit held that defendant’s admission that he owned a firearm did not entitle him to a reduction for acceptance of responsibility on the charge of possessing a machinegun. U.S. v. Daychild, 357 F.3d 1082 (9th Cir. 2004).

 

9th Circuit denies acceptance credit where defendant made false statements to probation officer about his citizenship. (486) Defendant was convicted of mail fraud, possession of stolen mail, and money laundering after he used other persons’ names to obtain and use credit card accounts. At sentencing, the district court denied credit for acceptance of responsibility, based on defendant’s false statement to the probation officer about his citizenship. The court viewed the false statement as a continuation of the deceit used by defendant in the offense, and inconsistent with sincere acceptance of responsibility. In affirming, the Ninth Circuit gave “great defer­ence” to the sentencing court’s determina­tion, as required by Note 5 to § 3E1.1. However, the panel cautioned that its holding did not require denial of the acceptance reduction in other fraud cases where the defendant makes a false statement to the probation officer. U.S. v. Bazuaye, 240 F.3d 861 (9th Cir. 2001).

 

9th Circuit denies credit where defendant pled to only one count and denied involvement. (486) The district court denied credit for acceptance of responsibility because defendant (1) pled guilty only to only one count and proceeded to trial on the other two, (2) repudiated his post-arrest statement and denied the partici­pation of his co-conspirators in his statement to the probation officer,  and (3) claimed that his confession was fabricated to the extent it described the roles of the other participants. The Ninth Circuit upheld the denial of the reduction, noting that defendant disputed his involvement in the conspiracy, and this was inconsistent with acceptance of respon­sibility. U.S. v. Avila, 95 F.3d 887 (9th Cir. 1996).

 

9th Circuit says lying to pretrial services officer was obstruction of justice. (486) Defendant told the pretrial services officer in his bail interview that he had no prior convictions, despite a long criminal record. On the advice of counsel he declined to discuss his criminal history with the probation officer. The co-defendant lied to the probation officer about ever having used an alias and also about when she first entered the United States. The district court increased both offense levels for obstruction of justice and refused to depart downward for acceptance of responsibility. On appeal, the Ninth Circuit affirmed, holding that providing materially false information to a pretrial services officer is obstruction of justice regardless of whether the falsehood actually obstructed justice. The fact that both defendants obstructed justice justified the court in denying credit for acceptance of responsibility. U.S. v. Magana-Guerrero, 80 F.3d 398 (9th Cir. 1996).

 

9th Circuit says presentence interview is not a critical stage of the proceedings so counsel was not ineffective. (486) Defendant argued that his lawyer’s failure to schedule a presentence interview constituted a denial of counsel at a critical stage of the adversary proceedings. Counsel apparently told his client not to talk to the probation officer without counsel being present, and then went on vacation while the presentence report was being written. Defendant refused to be questioned by the probation officer in the absence of counsel so the report was written without an interview with defendant. The Ninth Circuit held that a presentence interview is not a critical stage of the proceedings and therefore “there can be no constitutional violation, no matter how deficient counsel’s performance.” The court noted that every other circuit agrees with the Ninth Circuit that the presentence interview is not a critical stage of the adversary proceedings even though the sentencing guidelines have made the presentence report more important. U.S. v. Benlian, 63 F.3d 824 (9th Cir. 1995).

 

9th Circuit says court cannot consider defendant’s refusal to discuss the offense with the probation officer. (486) Relying on U.S. v. LaPierre, 998 F.2d 1460, 1468 (9th Cir. 1993) and U.S. v. Watt, 910 F.2d 587, 592 (9th Cir. 1990), the 9th Circuit reiterated that the district court may not consider the defendant’s refusal to discuss the offense with the probation officer as evidence weighing against acceptance of responsibility. “A defendant’s refusal to discuss the offense conduct with the probation officer may reduce the amount of evidence supporting the defendant’s claim of acceptance, but that is not the same thing as treating the refusal as a factor weighing against him.” U.S. v. Vance, 62 F.3d 1152 (9th  Cir. 1995).

 

9th Circuit says defendant’s refusal to cooperate may not be used to deny acceptance credit. (486) Citing U.S. v. McKinney, 15 F.3d 849, 854 (9th Cir. 1994) the Ninth Circuit held that the district court improperly held defendant’s refusal to cooperate with law enforcement authorities against him, in finding that he did not accept responsibility. The court noted that if defendant had agreed to discuss the offense conduct with law enforcement authorities and perhaps revealed and agreed to testify against his supplier, he might have earned a prosecutor’s recommendation for a downward departure for “substantial assistance to authorities” U.S.S.G. §5K1.1. “That is not closely related to contrition, however.” The court noted that a “cunning, but not contrite defendant may buy his way out of trouble by providing evidence against someone else, and an entirely contrite defendant may out of fear, ignorance of information useful to the prosecutors, or other reason, fail to provide assistance.” U.S. v. Vance, 62 F.3d 1152 (9th  Cir. 1995).

 

9th Circuit says credit cannot be denied for exercising right to appeal or failing to discuss role with probation. (486) Defen­dant was denied an acceptance of responsi­bility reduction apparently because he re­served the right to appeal and maintained si­lence with the probation department.  The Ninth Circuit found the denial of the reduc­tion ambiguous and remanded for clarifica­tion.  The court noted that denying the reduc­tion because defendant exercised the right to appeal is error.  Further, it would be error to deny the reduction on the basis that defen­dant refused to discuss his role with the pro­bation officer.  If there is insufficient evidence to establish acceptance of responsibility, de­nial of the reduction is appropriate even if the lack of evidence results from the exercise of constitutional rights.  The district court may not, however, discount evidence of contrition because of a refusal to discuss the facts with the probation officer. U.S. v. LaPierre, 998 F.2d 1460 (9th Cir. 1993).

 

9th Circuit finds remorse insincere where state­ments were made after “coaching” from defense counsel. (486) The district court relied on the proba­tion officer’s finding that defendant’s professions of re­morse were not sincere because they were made only af­ter “coaching and direction” from counsel.  On appeal, defendant claimed that the denial of the re­duction was illegal because it re­sulted ultimately from his exercise of his rights to have counsel pre­sent at his presen­tence in­terview.  The 9th Circuit rejected the argument, ruling that the court’s reliance on the probation officer’s ob­servation “does not indi­cate the court felt that [defendant] should be pun­ished for having counsel pre­sent to advise him, but simply that [defendant’s] man­ner of responding did not reflect his own, genuine re­morse.  U.S. v. Hall, 952 F.2d 1170 (9th Cir. 1991).

 

9th Circuit denies credit for acceptance of re­sponsibility de­spite a strong dissent. (486) The defendant exercised his right to remain silent at trial and refused to discuss his case with the probation officer.  He did not make a statement at his sentencing hearing.  Accord­ingly, Judges Rymer and Alarcon upheld the district court’s denial of credit for ac­ceptance of responsibility.  Judge Kozinski dissented, point­ing out that the acceptance of responsi­bility provision puts a defendant “to a brutal choice between obtaining a shorter sentence and giving up his right to appeal, and preserv­ing intact his right to appeal but giving up the opportunity to plead for a more lenient sen­tence.”  He suggested that to avoid constitu­tional questions raised by the provision, the could should require a new sentencing hearing after affirm­ing the defendant’s conviction on appeal.  At the new hearing the defendant would have an opportunity to qualify for the two level reduction for acceptance of responsi­bility.  U.S. v. Aichele, 941 F.2d 761 (9th Cir. 1991).

 

9th Circuit upholds denial of credit for accep­tance of re­sponsibility where defendant claimed entrapment. (484) “[O]n almost every key incident concerning both his predis­position to engage in drug trafficking and the govern­ment’s alleged inducement in getting him to cooperate, the appel­lant provided a story very different from the one the gov­ernment offered — which ultimately was the story the jury be­lieved.”  Accordingly the 9th Circuit found the record sup­ported the judge’s conclusion that defendant failed to satisfy the requirements of § 3E1.1.  The court emphasized however, that it was not holding that the defense of entrap­ment and a reduction for acceptance of responsibility “are necessarily and in all cases incompatible.”  U.S. v. Molina, 934 F.2d 1440 (9th Cir. 1991).

 

9th Circuit upholds denial of acceptance of responsi­bility where defendant denied crimi­nal intent. (484) Application Note 2 to guide­line § 3E1.1 says that a defendant may manifest sincere contrition even if he ex­ercises his constitu­tional right to a trial, for example, where he goes to trial to assert issues that do not relate to factual guilt.  Here how­ever, the court found that de­spite the defendant’s at­tempt to characterize the issue as a legal ques­tion, “the central issue was over the issue of criminal intent — a factual matter.”  Ac­cordingly, the court’s finding that defendant did not accept responsibil­ity was not clearly erro­neous.  U.S. v. Barron-Rivera, 922 F.2d 549 (9th Cir. 1991).

 

9th Circuit holds that probation officers must permit coun­sel to be present at presentence inter­view. (486) In Baumann v. U.S., 692 F.2d 565 (9th Cir. 1982), the 9th Cir­cuit held that the presentence interview did not con­stitute a “critical stage” at which counsel was required by the 6th Amendment.  Nevertheless, in this case the 9th Circuit exer­cised its “supervisory power” to hold that proba­tion officers must permit defendants to have their attorneys pre­sent at the pre­sentence interview.  The court noted that the presentence interview plays a cru­cial role in determining the probation offi­cer’s recom­mended sentence.  In this case the district court declined to give the defendant credit for ac­ceptance of responsi­bility because he refused to talk with the probation offi­cer in the absence of counsel.  The court said that its rule would serve the guidelines policy of evenhand­edness in sen­tencing.  Judge Leavy concurred that the sen­tence should be vacated because the district court simply de­ferred to the pre­sentence report.  He dissented from the holding requiring counsel’s presence at pre­sentence inter­views, however, ex­pressing fear that this may turn the inter­view into an adver­sary proceeding.  U.S. v. Her­rera-Figueroa, 918 F.2d 1430 (9th Cir. 1990).

 

9th Circuit rejects automatic credit for accep­tance of re­sponsibility where defendant exer­cises 5th Amend­ment right not to testify at trial. (484)  The district court held that those whose exercise their 5th Amend­ment right to remain silent at trial “must automatically re­ceive credit for accepting re­sponsibility in or­der to preserve the guidelines’ constitution­ality.”  The 9th Cir­cuit disagreed, noting that the defendant’s exercise of his right to remain silent at trial did not disable him from accept­ing responsibility for his actions afterwards.  “Yet even after the jury found him guilty [defendant] refused to discuss his case with his probation officer and insisted that he did not intimidate or harass anyone because of race.”  He declined to make any statement at his sen­tencing hearing.  The 9th Circuit found the district court’s ruling clearly erro­neous and re­versed the sen­tence.  U.S. v. Skillman, 913 F.2d 1477 (9th Cir. 1990) amended, 922 F.2d 1370 (9th Cir. 1991).

 

9th Circuit prohibits using “any constitu­tion­ally pro­tected conduct” against defendant in deter­mining ac­ceptance of responsibility. (484) In denying credit for acceptance of re­sponsibility, the district court stated that the defendant’s failure to assist authorities in the recov­ery of the fruits and instrumentalities of the of­fense “counts against him.”  The 9th Cir­cuit vacated the sen­tence, holding that “in de­termining a defendant’s ac­ceptance of re­sponsibility, a sentencing court cannot consider against a defendant any constitutionally pro­tect­ed conduct, whether it occurs before or af­ter an en­try of a plea.”  The court stated that “assisting in the re­covery of the fruits and instrumentali­ties of a crime in­volved a waiver of Fifth Amendment rights.”  Accord­ingly the district court im­prop­erly considered this fact against the defendant.  More­over the court held that the district court was required to con­sider defendant’s post-plea conduct as well as his pre-plea conduct in as­sessing his accep­tance of responsibility.  U.S. v. Watt, 910 F.2d 587 (9th Cir. 1990).

 

9th Circuit rejects argument that acceptance of responsi­bil­ity provision violates 5th and 6th Amend­ments. (484) De­fen­dant argued that U.S.S.G. § 3E1.1 chilled the exercise of his 5th Amendment right against self incrimi­nation because the only way he could receive a two point reduction for acceptance of respon­sibility was to retract his sworn trial testimony, contritely admit guilt, and confess perjury.  He also argued that the two point reduction has effectively “been made available only to defen­dants who plead guilty.”  Therefore he ar­gued that defendants who choose to go to trial are pe­nalized for exercising their 6th Amendment rights.  The 9th Circuit rejected each of these arguments  finding no Constitutional infirmity in the acceptance of respon­sibility provisions of the guidelines.  U.S. v. Gonzalez, 897 F.2d 1018 (9th Cir. 1990).

 

10th Circuit denies acceptance of respon­sibility for defendant who stood trial to preserve objection to confession. (486) De­fendant confessed to his crimes, but then stood trial, put the government to its proof, sought to exclude the confession, and refused to discuss his crimes after conviction with the probation office.  The district court denied the adjustment for acceptance of responsibil­ity, and the 10th Circuit affirmed.  Defendant could have sought to preserve the challenge to his confession by entering a conditional guilty plea pursuant to Federal Rule of Crimi­nal Procedure 11(a)(2).  Though such pleas require the approval of the court and the gov­ernment, defendant did not argue that he was rebuffed in an attempt to enter such a plea.  U.S. v. March, 999 F.2d 456 (10th Cir. 1993).

 

10th Circuit denies reduction to de­fendant who denied offense during and after trial. (486) The 10th Circuit affirmed that defen­dant was not entitled to a reduction for accep­tance of respon­sibility.  She denied any criminal wrongdoing relating to the counts charged in the in­dictment at trial, and she persisted in this denial following her convic­tion dur­ing her presentence in­terview.  U.S. v. Chimal, 976 F.2d 608 (10th Cir. 1992).

 

10th Circuit upholds acceptance of responsi­bility provi­sions against 5th and 6th Amend­ment challenges. (484) Defendant argued that the acceptance of responsibility pro­visions of the guidelines violate the 5th and 6th Amend­ments by requiring him to plead guilty to all of the charges against him in order to obtain the benefit of a reduction.  Defendant claimed that he clearly accepted responsibility for a drug trafficking charge, but was de­nied the reduc­tion be­cause he did not accept responsi­bility for a firearms charge.  The 10th Circuit re­jected this claim.  “The denial of a downward ad­justment under § 3E1.1 does not con­stitute a penalty or an en­hancement of sen­tence.”  There is a difference between increas­ing the severity of a sen­tence for failure to demon­strate remorse and refusing to grant a reduction from the pre­scribed base offense level.  U.S. v. Ross, 920 F.2d 1530 (10th Cir. 1990).

 

10th Circuit upholds constitutionality of ac­ceptance of re­sponsibility provisions. (484) Defendant contended that the acceptance of responsibility provisions of the sen­tencing guidelines violated his 5th Amendment priv­ilege against self-incrimination.  Following its decision in U.S. v. Rogers, 899 F.2d 917 (10th Cir. 1990), the 10th Circuit re­jected this argu­ment without discussion.  The court also re­jected defendant’s contention that the guide­lines violate equal protection because they im­pose different sentences on defendants con­victed of the same crime. Giv­ing defendants who accept respon­sibility for their conduct lighter sentences than unrepentant defen­dants is rationally related to the gov­ernment’s legiti­mate interest in rehabili­tating convicted crimi­nals.  U.S. v. Mayes, 917 F.2d 457 (10th Cir. 1990).

 

10th Circuit holds that defendant’s refusal to talk to proba­tion officer may be considered in denying credit for accep­tance of responsibility. (486) Defendant ar­gued that he was not given credit for acceptance of re­sponsibility be­cause he invoked his Fifth Amendment privilege against self-in­crimination at the time of the presentence interview.  The 10th Circuit re­jected the ar­gument, noting that since defen­dant had pleaded guilty, he no longer had a Fifth Amend­ment privilege as to the count of conviction.  Thus, he “was not refusing to in­criminate himself on counts to which he had pled not guilty; he was refusing to provide in­formation on the count to which he had ad­mitted his guilt.”  More­over, the district court’s denial of the reduction for ac­ceptance of re­sponsibility was not a “penalty”. U.S. v. Trujillo, 906 F.2d 1456 (10th Cir. 1990).

 

11th Circuit says post-trial cooperation did not entitle defendant to acceptance of responsibility reduction. (486) Defendant did not cooperate prior to trial, but after his conviction he agreed to give a statement to the government for use in later prosecutions of additional members of the drug trade. In exchange for this coopera­tion, the prosecution recommended a five-point downward departure which the district court accepted at sentencing. The Eleventh Circuit rejected defendant’s claim that he was also entitled to a two-point acceptance of responsi­bility reduction. Al­though the failure to plead guilty does not preclude an acceptance of responsibility reduc­tion, only in rare situations will a defendant who is convicted at trial be entitled to the decrease. Even then, the determina­tion of whether to grant the reduction should be “based primarily upon pre-trial statements and conduct.” Defen­dant did not cooperate with the government during its investigation and forced the government to seek a con­viction by trial. In addition, defendant received a five-point departure for his post-trial cooperation. U.S. v. Matthews, 168 F.3d 1234 (11th Cir. 1999).

 

11th Circuit denies reduction where defen­dant sabotaged cooperation by telling target of investigation. (486) While he was a grand jury member, defendant disclosed grand jury secrets to the target of a grand jury investiga­tion. Defendant argued that he ac­cepted responsibility by admitting to federal agents shortly after his arrest that he had revealed grand jury infor­mation. The Eleventh Circuit held that defendant was not entitled to the re­duction despite his immediate confes­sion. He had also agreed to assist in the investigation of the target on the condition that he was not to inform anyone of his cooperation. However, he sabotaged the covert investigation by telling a friend to “get word” to the tar­get that he had been asked to cooper­ate against the target. U.S. v. Brenson, 104 F.3d 1267 (11th Cir. 1997).

 

11th Circuit affirms denial of acceptance of responsibil­ity reduction despite guilty plea and defen­dant’s coop­eration. (486) Defendant contended that he was entitled to a reduction for acceptance of re­sponsibility be­cause he pled guilty and co­operated with the govern­ment’s investigation of persons be­lieved to be stealing seized money.  The 11th Circuit held that de­fendant did not meet his burden.  A de­fendant’s coop­eration does not au­tomatically entitle him to a reduction for accep­tance of re­sponsibility.  Even if nothing in the record indi­cated that de­fendant was less than truthful with the govern­ment or the court, the determination of ac­ceptance of respon­sibility re­quires an analysis of both ob­jective facts and sub­jective con­siderations of the de­fendant’s demeanor and sincer­ity.  The record indicated that the dis­trict court was concerned with de­fendant’s demeanor and sincerity, commenting that de­fendant seemed to be “taking this in a rather light fash­ion to­day.”  Moreover, the court properly consid­ered defen­dant’s denial of important facts.   U.S. v. Cruz, 946 F.2d 122 (11th Cir. 1991).

 

11th Circuit rules acceptance of responsibility provision does not infringe right to appeal. (484) Defendant con­tended that the sentencing guidelines infringed his right to appeal because he was unable to express acceptance of re­sponsibility at the sentencing hearing while he anticipated bringing this appeal.  The 11th Cir­cuit rejected this con­tention, finding that guideline § 3E1.1 does not uncon­stitutionally prejudice or penalize defendant for exercising his right to appeal from a con­viction.  U.S. v. McDonald, 935 F.2d 1212 (11th Cir. 1991).

 

11th Circuit finds acceptance of responsibility was not de­nied solely because of defendant’s decision to stand trial. (484) The 11th Circuit rejected defendants’ contention that the district court improperly based its refusal to grant them a reduction for acceptance of responsi­bility upon their decision to stand trial.  Defen­dants ceased their criminal activity only after being arrested.  From that time onward, they main­tained that they were innocent; at trial, they challenged the credibility of the govern­ment witnesses and urged the jury to find them not guilty.  After being found guilty they subse­quently admitted to a probation officer that they “sold drugs” but expressed no remorse for their actions.  Although a court may not refuse to grant a reduction under § 3E1.1 solely because a defendant proceeds to trial, such a choice may be considered by the court as one factor among many in determining whether the defendant has actually accepted re­sponsibility.  U.S. v. Jones, 934 F.2d 1199 (11th Cir. 1991).

 

11th Circuit reverses denial of acceptance of responsi­bility reduction because defendant substantially as­sisted govern­ment. (486) The district court denied de­fendant a reduction for acceptance of responsibility be­cause it found that defen­dant had failed to provide com­plete information to the pro­bation officer during the presentence interview.  The 11th Circuit re­versed, find­ing that defendant’s voluntary coopera­tion with the au­thorities immediately following his arrest justified the reduction.  Immediately upon his arrest, defen­dant as­sisted the police in arresting his accomplice, which led officials to apprehend six other indi­viduals involved in drug offenses.  Defendant’s assistance provided “a classic example of the kind of conduct the sentencing court should credit as indicative of an acceptance of responsi­bility.”  U.S. v. Howard, 923 F.2d 1500 (11th Cir. 1991).

 

11th Circuit affirms acceptance of responsi­bility reduc­tion for defendant who assisted government in investi­gation. (486) The gov­ernment objected to the district court’s two level reduction for acceptance of responsibil­ity.  The 11th Circuit found that the determination was not without foun­dation, and upheld the re­duction.  After being confronted by police, de­fendant agreed to permit the police to search his car and apartment, provided them with ad­dress of a co-de­fendant, advised the police of the location of an apartment containing both cocaine and money, and admitted that he was in the cocaine business.  The record reflected that de­fendant was ex­tremely cooperative in the initial stages of the investiga­tion and made it possible for the government to make the ar­rests in the case.  “The government’s theory that [defendant] should not benefit from this acceptance of re­sponsibility because he coop­erated only in the hope that he would avoid ar­rest does not persuade us to over­ride the con­sidered judgment of the district court on this issue.”  U.S. v. De La Rosa, 922 F.2d 675 (11th Cir. 1991).

 

11th Circuit upholds consideration of defen­dant’s deci­sion to go to trial in denying credit for acceptance of responsi­bility. (484) Defen­dant and others were ar­rested in a boat con­taining 495 bales of marijuana.  Defen­dant contended that he was entitled to a two point reduction in base offense level because he vol­untarily cooperated with the government by telling them what he knew concerning where and when the boat was supposed to rendezvous with the marijuana.  The 11th Circuit re­jected his argument.  The district court had found that defendant’s decision to proceed to trial was evidence of his failure to accept per­sonal responsibility for his of­fense.  Although a dis­trict court may not refuse to find acceptance of responsibility simply because a defendant elects to go to trial, it is a factor that “may properly be con­sidered along with other factors in de­termining whether there has been an ac­ceptance of respon­sibility.”  U.S. v. Castillo-Valencia, 917 F.2d 494 (11th Cir. 1990).

 

11th Circuit reaffirms constitutionality of ac­ceptance of re­sponsibility provision. (484) Following its previous de­cision in U.S. v. Henry, 883 F.2d 1010 (11th Cir. 1989), the 11th Circuit held that the acceptance of re­sponsibility provi­sion of the federal sentencing guide­lines does not violate ei­ther the 5th or 6th Amendment.  Instead, it “merely formal­izes and clarifies a tradition of leniency extended to defen­dants who express genuine remorse and accept re­sponsibility for their wrongs.”  U.S. v. Crawford, 906 F.2d 1531 (11th Cir. 1990).

 

11th Circuit holds that denial of acceptance of responsibil­ity did not violate defendant’s 5th Amend­ment rights. (484) A drug defendant claimed that the trial court erred in de­clining to grant him a reduction for acceptance of responsi­bility.  He claimed that the court pe­nalized him for exercis­ing his 5th Amendment right against self-incrimination by con­ditioning the re­duction upon his revealing information re­lating to other criminal conduct.  The 11th Circuit disagreed, finding that the district court had relied solely upon his guilty plea as the ba­sis for acceptance of responsibility and that it was not unconstitutional for him to be de­nied a benefit.  The court found inapplicable case law holding that the 5th Amendment might be vi­olated when a reduction is condi­tioned upon a confession to dismissed counts.  This rule ap­plies only when there is clear evidence that a de­fendant actu­ally accepted re­sponsibility.  U.S. v. Row­land, 906 F.2d 621 (11th Cir. 1990).

 

11th Circuit finds no duty to advise defendant that his sen­tence may be adjusted for accep­tance of responsi­bility. (484) Defendant ar­gued that he was denied due process be­cause neither the district court nor the pro­bation of­ficer informed him that his sentence might be favorably adjusted under the guidelines for his accep­tance of responsibility.  The 11th Circuit rejected the ar­gument, ruling that the Con­stitution does not require the sentencing court or the proba­tion department to inform a de­fendant of the “substantive aspects of the sen­tencing laws.”  U.S. v. Simp­son, 904 F.2d 607 (11th Cir. 1990).

 

11th Circuit holds acceptance of responsibility provi­sion is constitutional. (484) The 11th Circuit held that the ac­ceptance of responsi­bility provision (§ 3E1.1) does not uncon­stitutionally deprive a defendant the right to present an effective defense.  The court re­jected the ar­gument that the 5th Amendment is vio­lated because a defendant who testifies as to his inno­cence must later admit to perjury to receive the benefit.  It also re­jected the argu­ment that the 6th Amendment is vio­lated be­cause a defendant may forego testifying in his de­fense out of fear of a possible perjury charge, in order to later re­ceive the benefit.  Rather, the section merely formal­izes and clarifies the tradition of leniency ac­corded defen­dants who admit re­sponsibility for their ac­tions.  The section thus forewarns defendants of the conse­quences of their ac­tions and bet­ter prepares them to choose as they think best.  U.S. v. Henry, 883 F.2d 1010 (11th Cir. 1989).

 

D.C. Circuit rejects acceptance reduction for defendant who only admitted one of four counts of conviction. (486) Acceptance of responsibility involves “truthfully admitting the conduct comprising the offense(s) of conviction.” Note 1(a) to § 3E1.1(a). Defendant never did so. Although upon arrest he waived his Miranda rights and admitted possessing the crack charged in Count Four, defendant never admitted to the transactions for which he was convicted under Counts One and Three. During his interview with the probation officer who prepared his presen­tence report, defendant “declined to discuss his involvement” in the offenses of conviction. When he stood before the judge at sentencing and was asked whether he wished to speak, defendant once again declined. “While the district court lacks the power to force a defendant to express remorse he does not feel, it is not required to reward a remorseless defendant with a decrease in offense level. Accordingly, the D.C. Circuit ruled that the district court did not err in failing to grant defendant an acceptance of responsibility reduction. U.S. v. Webb, 255 F.3d 890 (D.C. Cir. 2001).

 

D.C. Circuit denies reduction for failure to talk to probation officer, testimony at hearing and decision to go to trial. (486) Defendant argued he was entitled to a reduc­tion because he accepted responsibility for his offense during his testimony at the sup­pression hearing and went to trial only to preserve his 4th Amendment claims for ap­peal.  The D.C. Circuit upheld the denial of the reduction.  Defendant’s testimony at the suppression hearing was somewhat contra­dictory and ambiguous.  It was reasonable for the district court to conclude that defendant’s failure to discuss the case with his probation officer, taken together with his ambiguous testimony during the suppression hearing and his decision to go to trial, failed to make out the clear showing necessary to justify the acceptance of responsibility reduction.  U.S. v. Reid, 997 F.2d 1576 (D.C. Cir. 1993).

 

Oregon District Court holds guideline provi­sion re­gard­ing acceptance of responsibil­ity does not violate self incrimina­tion privilege. (484) A defen­dant was con­victed by a jury of assault resulting in serious bodily in­jury. Af­ter rejecting separation of powers and delegation chal­lenges, the court found that the availability of a re­duction for acceptance of re­sponsibility does not inter­fere with a defen­dant’s right to avoid self-incrimination.  Be­cause the guide­lines are not designed to induce invol­untary in­criminating statements, they are not facially unconstitu­tional.  Furthermore, the defendant continu­ally asserted his 5th Amend­ment privi­lege.  The defen­dant was not penal­ized by his refusal to accept responsi­bility, he merely de­clined to accept the benefit of such a course of action.  His exercise of his 5th Amend­ment priv­ilege was not held against him in deter­mining his sentence.  U.S. v. Belgard, 694 F.Supp. 1488 (D.Ore. 1988).

Browse Contents

  • 100 Pre-Guidelines Sentencing, Generally
  • 110 Guidelines Sentencing, Generally
  • 150 Application Principles, Generally
  • 200 Offense Conduct, Generally
  • 400 Adjustments, Generally
  • 500 Criminal History, Generally
  • 550 Determining the Sentence
  • 700 Departures, Generally
  • 750 Sentencing Hearing, Generally
  • 780 Plea Agreements, Generally
  • 800 Violations of Probation and Supervised Release
  • 840 Sentencing of Organizations
  • 850 Appeal of Sentence (18 U.S.C. §3742)
  • 880 Habeas Corpus / 28 U.S.C. 2255 Motions
  • 900 – Forfeitures, Generally

Recent Newsletters
in PDF format

  • May 5, 2025
  • April 21, 2025
  • April 7, 2025
  • March 24, 2025
  • March 10, 2025

Recent Indices
in PDF format

  • April 7, 2025
  • February 10, 2025
  • December 30, 2024
  • October 21, 2024
  • August 26, 2024
© James Publishing, Inc. (866) 72-JAMES (866-725-2637)
Last Updated 12/16/13