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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

§492 Acceptance of Responsibility: Effect of Perjury/Obstruction

11th Circuit finds pre-indictment obstruction pre­cluded acceptance reduction. (492) While incarcerated in state custody for the offense that led to his federal con­viction, defendant struck a confidential informant who provided information against him in an attempt to influ­ence his testimony. As a result, the district court added two levels for obstruction of justice and denied a reduc­tion for acceptance of responsibility under § 3E1.1. The Eleventh Circuit held that, even though the obstruction was pre-indictment, this was not an “extraordinary case” where a defendant who obstructed justice should receive a reduction for acceptance. U.S. v. Coats, __ F.4th __ (11th Cir. Aug. 12, 2021) No. 18-13113.

8th Circuit upholds obstruction finding and denial of acceptance credit. (461)(492) Defendant pleaded guilty to a firearms charge. The firearm was apparently used in a domestic assault against defendant’s girlfriend. Before he pleaded guilty, defendant was subject to a no-contact order from state court. Defendant nevertheless told his girlfriend that her statements to the authorities “need to go away.” At sentencing, the district court added two levels under § 3C1.1 for obstruction of justice and denied a reduction under § 3E1.1 for acceptance of responsi­bility. The Eighth Circuit upheld both determinations, concluding that defendant did not present a rare case where an obstruction enhancement could be given with an acceptance reduction. U.S. v. Sanders, __ F.3d __ (8th Cir. July 16, 2021) No. 19-1497.

1st Circuit says obstruction finding bars acceptance credit. (492) Defendant pleaded guilty to fraud. Prior to trial, he feigned incompetence, and the district court found that this obstructed justice under § 3C1.1. The court then denied credit for acceptance of responsibility under § 3E1.1 because defendant had obstructed justice. On appeal, the First Circuit held that defendant did not present an extraordinary case, so the obstruction en­hancement foreclosed an acceptance reduction. U.S. v. Nygren, __ F.3d __ (1st Cir. Aug. 6, 2019) No. 18-1548.

8th Circuit finds fear of deportation did not excuse flight before sentencing. (492) Defendant absconded be­fore his sentencing on fraud offenses. When defendant was recaptured, the district court enhanced his sentence under § 3C1.1 for obstruction of justice based on his flight and denied a reduction for acceptance of respon­sibility under § 3E1.1. On appeal, defendant argued that this was an extraordinary case because he fled based on a fear that he would be killed for political reasons if de­ported to his native Liberia. The Eighth Circuit upheld the denial of the enhancement because defendant’s op­tion was to seek immigration relief, not abscond from his sentencing. U.S. v. Kugmeh, __ F.3d __ (8th Cir. Aug. 8, 2019) No. 18-1145.

8th Circuit finds acceptance reduction inconsistent with obstruction increase. (492) After being charged with possession of child pornography, defendant posses­sed a cell phone that could have accessed child porno­graphy. Defendant lied to his probation officer about this cell phone. Based in part on this conduct, the district court found that defendant had obstructed justice under § 3C1.1 and denied defendant a reduction for acceptance of responsibility under § 3E1.1. Reviewing for clear er­ror, the Eighth Circuit upheld the failure to give defen­dant an acceptance reduction. Defendant’s case did not present the “extraordinary circumstances needed for both” an acceptance reduction and an obstruction en­hancement. U.S. v. Beattie, __ F.3d __ (8th Cir. Apr. 1, 2019) No. 18-2197.

8th Circuit upholds denial of acceptance reduction where defendant did not testify truthfully. (492) De­fendant was charged with various counts arising out of three burglaries—one in May 2016, and two in Novem­ber 2016. Defendant pled guilty to one count of larceny and burglary relating to the May burglary, was convicted by a jury of two counts of possession of a stolen firearm in connection with the November burglaries, and was acquitted of three underlying burglary and larceny char­ges relating to the November burglaries. At sentencing, the district court rejected an acceptance-of-responsibility reduction for the November counts that proceeded to trial, even though those counts were grouped with the May counts to which defendant had pled guilty. The court found that defendant had not testified truthfully, so credit for acceptance of responsibility was not warranted. The Eighth Circuit found no error. U.S. v. Waln, __ F.3d __ (8th Cir. Feb. 28, 2019) No. 18-1812.

1st Circuit denies acceptance credit for obstructing justice by using false identity. (492) While preparing defendant’s PSR, the government learned that defendant had been using a false identity throughout his criminal proceedings. Defendant argued that he was entitled to an acceptance of responsibility credit notwithstanding the district court’s determination that he obstructed justice, § 3C1.1 The First Circuit upheld the denial of the reduction. “Conduct resulting in [such] an enhancement … ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct.” See Note 4 to § 3E1.1. Although an exception may be made in “extraordinary cases,” district courts are not required to give such a credit to defendants whenever they waive formal indictment or do not object to the government’s characterization of their offense. The district court here carefully considered the circumstances and found that defendant did not deserve the two-level reduction. U.S. v. Pérez-Crisostomo, __ F.3d __ (1st Cir. Aug. 10, 2018) No. 17-1914.

1st Circuit rules defendant who obstructed jus­tice did not show acceptance of responsibility. (492) Defendant pled guilty to robbery. He received an obstruction of justice increase based on the court’s finding that defen­dant assaulted another inmate in an attempt to intimidate that inmate from testifying against defendant. The First Circuit upheld the denial of credit for acceptance of responsibility. When caught, defendant refused to accept responsibility for assaulting the inmate. The panel had no trouble concluding that was not a rare case justifying acceptance credit despite the defendant’s obstruction. U.S. v. Stile, 845 F.3d 425 (1st Cir. 2017).

D.C. Circuit denies credit for acceptance of respon­sibility where defendant committed perjury. (492) Defendant was convicted of being a felon in possession of a firearm and was acquitted of possession of stolen firearms. He received an obstruction of justice increase based on his perjury at trial, but nonetheless argued on appeal that he was entitled to a reduction for acceptance of responsibility. Absent extraordinary circumstances, obstruction of justice “ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct.” Note 4 to §3E1.1. The D.C Circuit found no extraordinary circumstances, and upheld the denial of the reduction. The mere fact that the jury acquitted defendant of possessing stolen firearms and convicted him of possessing firearms as a convicted felon was not an extraordinary circumstance. U.S. v. McDonald, __ F.3d __ (D.C. Cir. June 24, 2016) No. 10-3083.

8th Circuit says government did not breach agree­ment by arguing against acceptance credit. (492)(790) Defendant pled guilty to a meth conspiracy. He argued that the government violated the plea agreement by arguing against an acceptance-of-responsibility reduc­tion, and that the court erred in denying a reduction. The Eighth Circuit disagreed. The agreement provided that the government would “move for an additional one-point reduction for acceptance of responsibility” if the court “accepts a recommendation in the Presentence Report that the defendant receive two points for acceptance of responsibility.” The PSR made no recommendation for acceptance of responsibility, so the government had no duty to argue for acceptance of responsibility. The court had ample evidence to deny the reduction. Defendant sent threatening letters to cooperating defendants and witnesses, and denied relevant conduct in multiple objections to the PSR. U.S. v. Torres-Rivas, __ F.3d __ (8th Cir. June 9, 2016) No. 15-1685.

7th Circuit holds that defendant’s admissions did not mandate an acceptance reduction. (492) Defendant was convicted of distributing heroin and crack cocaine on five separate occasions. The district court denied defen­dant’s request for acceptance of responsibility credit due to his behavior throughout the proceedings. Specifically, the court noted that it did not believe defendant was truthful in his trial testimony, and that defendant’s state­ments at the sentencing hearing were not “forthright.” Defendant contended that since he admitted the crimes, he was entitled to the acceptance of responsibility credit. The Seventh Circuit disagreed. Defendant’s acknowledg­ment of his involvement in the drug transactions did not require the district court to grant the reduction. U.S. v. Chapman, 804 F.3d 895 (7th Cir. 2015).

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.

7th Circuit denies acceptance reduction to fugitive who turned himself in after fleeing the country. (492) Defendant was charged with wire fraud and equity skimming, and was released pending trial. Two months before trial, he fled the country. He eventually turned himself in to U.S. authorities in Brazil and later pled guilty. At sentencing, the district court applied a two-level enhancement for obstruction of justice under § 3C1.1 and denied a reduction for acceptance of responsibility under § 3E1.1. Defendant challenged the denial of the acceptance reduction, contending that his situation was “extraordinary” because he did not wait to get caught after fleeing, but instead self-surrendered in a country where there was no extradition treaty with the United States. The Seventh Circuit upheld the court’s denial of the acceptance reduction, finding defendant’s argument “frivolous.” The United States and Brazil have had an extradition treaty since 1964, and the treaty was in force and applicable to defendant. Moreover, the district court reasonably concluded that defendant’s conduct in fleeing the country was so egregious that awarding credit for acceptance of responsibility was unjustified. U.S. v. Pons, __ F.3d __ (7th Cir. Aug. 4, 2015) No. 15-1193.

1st Circuit denies acceptance credit despite factors raised by defendant. (492) Although defendant received an obstruction of justice enhancement based on his perjury during a suppression hearing, he nonetheless argued that he was entitled to an acceptance of respon­sibility reduction. He noted that upon arrest, he admitted his role in the drug sale, divulged the existence of his stash house, consented to a search of that structure and seizure of the contraband from it, pled guilty, complied with the terms of his pretrial release, and was contrite. The First Circuit ruled that the factors defendant raised did not make his case extraordinary, and were not suffi­cient to overcome the district court’s finding that he did not deserve the acceptance reduction. U.S. v. Maguire, 752 F.3d 1 (1st Cir. 2014).

 

1st Circuit denies acceptance reduction to defendant who attempted to escape prior to sentencing. (492) Defendant received an obstruction of justice increase after the judge found that he tried to escape from prison and assaulted his cellmate while awaiting sentencing on bank robbery charges. Based on his obstruc­tion of justice, the district court refused to grant him an acceptance of responsibility reduction. Defendant argued that even if he was unrepentant about his escape attempt and his assault on his cellmate, he could be truly repentant about the bank robbery. The First Circuit disagreed. Defendant was trying to escape from facing responsibility and sentencing for the bank robbery, the offense of conviction. The district court properly concluded that defendant, trying to avoid the penalty for bank robbery, was not entitled to acceptance credit for his offense. U.S. v. Cash, 266 F.3d 42 (1st Cir. 2001).

 

1st Circuit denies acceptance reduction for defendant who only pled guilty after perjury scheme was foiled. (492) The First Circuit found no error in the denial of an acceptance of responsibility reduction, given that defen­dant went to trial, pled guilty only when his perjury scheme was foiled, dealt drugs while on release, and lied to the district court on more than one issue. Defendant was fortunate not to have been independently prosecuted for obstruction and for the second drug offense. U.S. v. Aker, 181 F.3d 167 (1st Cir. 1999).

 

1st Circuit says court may not deny one point acceptance reduction based on obstruction of justice. (492) The district court imposed an obstruction of justice enhancement as a result of defendant’s attempt to destroy evidence. However, it also found that defendant had accepted responsibility. Without analyzing the requirements in § 3E1.1(b), the court granted defendant a two-level reduction rather than a three-level reduction. The 1st Circuit reversed, holding that once a court determines that a defendant qualifies for the basic acceptance of responsibility reduction, it has no discretion to withhold the additional reduction due to obstruction of justice. The only relevant inquiry is whether the defendant satisfies the § 3E1.1(b) criteria. U.S. v. Talladino, 38 F.3d 1255 (1st Cir. 1994).

 

1st Circuit rejects acceptance of responsibility where defendant obstructed justice. (492) 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 remands to determine whether accept­ance of responsibility objection was waived. (492) Defendant originally received an en­hancement for obstruction of justice and was denied a reduction for acceptance of responsibility.  On ap­peal of the denial of de­fendant’s section 2255 motion, the 1st Circuit remanded for reconsideration of the obstruc­tion issue.  The government claimed that de­fendant waived his objection to the accep­tance of re­sponsibility issue by not raising it on direct appeal.  However, defendant’s coun­sel may not have pursued the acceptance is­sue because he believed the argu­ment could not be won after losing the ob­struction argu­ment.  Thus, the 1st Circuit made a “contingent remand” on the acceptance of responsi­bility issue.  If the district court found that obstruction was not proved, it should determine whether the acceptance of respon­sibility claim was waived, and if not, then it should determine that claim on the merits.  Isabel v. U.S., 980 F.2d 60 (1st Cir. 1992).

 

1st Circuit affirms denial of acceptance of responsibil­ity re­duction despite guilty plea where defendant lied un­der oath. (492) Defendant claimed that he was entitled to a reduction for acceptance of re­sponsibility because he con­fessed to his crimes.  The 1st Circuit affirmed the de­nial of the reduction despite defendant’s guilty plea.  The sentenc­ing judge com­mented on a number of occa­sions that he had observed de­fendant and remained unconvinced that defen­dant held any remorse regarding his crimes, much less ac­cepted meaning­ful responsibility for the sig­nificance of the crimes.  More­over, defen­dant’s claim of ac­ceptance of re­sponsibility was incompatible with the fact that he lied un­der oath during the hearing on his motion to withdraw his guilty plea.  U.S. v. Austin, 948 F.2d 783 (1st Cir. 1991).

 

1st Circuit affirms obstruction based on de­fendant’s false testimony that he only intended to purchase one pound of marijuana. (492) The district court found that defen­dant testi­fied falsely that he only attempted to purchase one pound of marijuana and in providing the same false infor­mation in his written statement of acceptance of responsibil­ity reproduced in the presentence report.  The district court stated that it “defie[d] one’s imagination to ex­pect people to believe that somebody is going to inspect .ÿ.ÿ. a 40-pound bale .ÿ.ÿ. for the pur­pose of buying one pound.”  This was also grounds to deny defendant a reduction for ac­ceptance of re­sponsibility.  U.S. v. Marino, 936 F.2d 23 (1st Cir. 1991).

 

1st Circuit denies acceptance of responsibility reduction based on flight despite defendant’s cooperation. (492) De­fendant contended that he was entitled to a reduction for ac­ceptance of responsibility because upon his arrest he imme­diately admitted his full involvement, turned over cocaine to authorities and risked his life to help the government appre­hend more important members of the drug ring.  However, he did not appear in court for sen­tencing, and was appre­hended by authorities several months later, at which time he gave a false name.  The 1st Circuit affirmed the denial of the reduction, finding that the determination of whether this was an “extraordinary case” justifying both an acceptance of re­sponsibility reduction and an obstruction of justice enhance­ment was for the district court.  U.S. v. Yeo, 936 F.2d 628 (1st Cir. 1991).

 

1st Circuit finds no acceptance of responsi­bility by defen­dant who obstructed justice. (492) The 1st Circuit found that defendant was not entitled to a reduction for acceptance of responsibility since he had obstructed jus­tice.  Moreover, “it is primarily up to the district court to decide whether or not [defendant] ac­cepted responsibil­ity for his conduct with ‘candor and authentic remorse.’”  U.S. v. Wheel­wright, 918 F.2d 226 (1st Cir. 1990).

 

1st Circuit finds no acceptance of responsi­bility by defen­dant who misled authorities about his identity. (492) Defendant obtained false identification which he used to ap­ply for a passport.  When approached by gov­ernment agents, defendant gave a false name.  When placed under arrest, defendant continued to refuse to give his true identity.  Even after his fingerprints re­vealed his true identity, defen­dant refused to truthfully identify himself.  When defendant finally admitted his true iden­tity to the district court, he made sev­eral false statements about his financial status.  Defen­dant re­ceived a two point enhancement for ob­struction of jus­tice.  Under these circum­stances, defendant was not en­titled to a reduc­tion for acceptance of responsibility.  U.S. v. Scott, 915 F.2d 774 (1st Cir. 1990).

 

1st Circuit rules obstruction of justice pre­cludes accep­tance of responsi­bil­i­ty reduction. (492) A drug defen­dant argued that the Dis­trict Court erroneously refused to grant him a two point decrease in his offense level for ac­ceptance of re­sponsibility (§ 3E1.1).  The 1st Cir­cuit affirmed the denial, holding that in accordance with Application Note 4 to that section, a defendant who makes false state­ments or otherwise obstructs justice is not en­titled to the ad­justment.  The District Court had found that the defen­dant had misrepre­sented his identity and citizenship to a magis­trate and immigration officer.  Since this find­ing was not clearly erroneous, the District Court’s determina­tion would not be disturbed.  Further­more, it is proper to use false state­ments to both deny the reduction and in­crease the offense level for obstruc­tion of justice un­der § 3C1.1.  U.S. v. Mata-Grul­lon, 887 F.2d 23 (1st Cir. 1989).

 

1st Circuit holds no acceptance of responsi­bility where defendant per­jured himself at trial. (492) Be­cause the trial judge had an ade­quate foundation for find­ing that the defendant had perjured himself at trial, it was not er­ror for the court to refuse to grant him a re­duction in his offense level for acceptance of responsibil­ity. (See Appli­cation Note 6 to § 3E1.1).  U.S. v. Zayas, 876 F.2d 1057 (1st Cir. 1989).

 

2nd Circuit denies reduction based on mini­miz­ing allocution and meritless objections to PSR. (492) the district court denied defendant’s request for an acceptance of responsibility reduction, finding that he had not sufficiently accepted responsibility because he had obstructed justice, and because he had waited until the eve of trial to plead guilty. The Second Circuit found that defendant engaged in sufficient objectionable post-indictment conduct to justify the denial of the reduction. For example, the court found that defendant’s carefully worded plea allocution “muted the gravity of his complicity in the securities fraud offenses.” When asked if he thought that his fraudulent conduct would have affected a prudent investor’s decision to buy or sell his company’s stock, his response was, “I could see the possibility where it could.” More­over, the court found it telling that defendant objected to the PSR on various grounds related to evidence tampering and fraudulent transactions, but then withdrew those objection during a Fatico hearing, implicitly acknowledging that his objec­tions lacked merit. U.S. v. Kumar, 617 F.3d 612 (2d Cir. 2010).

 

2nd Circuit says court did not think acceptance reduc­tion and obstruction increase were mutually exclusive. (492) Defendant argued that the district court improperly concluded that his obstruction of justice en­hance­ment automatically barred him from receiving an acceptance of responsibility reduc­tion, contrary to Note 4 to USSG § 3E1.1 (in “extraordinary cases” adjustments for both obstruction of justice and acceptance of respon­si­bility may be proper). The Second Circuit found no evidence that the district court mis­takenly believed that the acceptance reduc­tion and the obstruction enhancement were mutually exclusive. Instead, the record indicated that the events that triggered the obstruction increase, defendant’s submission of a perjured affidavit and suborning perjury, also provided a sound basis for denying the acceptance reduction. U.S. v. Champion, 234 F.3d 106 (2d Cir. 2000).

 

2nd Circuit applies obstruction enhancement and rejects acceptance reduction. (492) Defendant’s plea agreement provided that he would, before sentencing, pay to the IRS all taxes, penalties, and interest owed by him and the company he managed. Defendant submitted to the IRS a financial form that understated his actual cash holdings by about $1.1-1.2 million, held in six unmention­ed CD accounts. The form also incorrectly stated that $306,061 was held in an escrow account to satisfy the company’s liability to independent contractors. Based on these facts, the Second Circuit upheld an obstruction of justice enhancement and denied an acceptance of responsibility reduction. The district court specifically found that defendant’s conduct was willful and not inadvertent, but designed to stave off the IRS’s attempts to collect on the tax debt. It was within the district court’s discretion not to believe defendant’s explanation that he was extremely “busy” during the Christmas period and was merely negligent in failing to provide his accountant with information about the six CDs. There was also nothing “extraordinary” about this case that would warrant an acceptance of responsibility reduction. U.S. v. Case, 180 F.3d 464 (2d Cir. 1999).

 

2nd Circuit denies acceptance credit and imposes enhancement for perjury and bail jumping. (461) The district court refused to grant a §3E1.1 reduction and imposed a §3C1.1 enhancement because defendant perjured himself in an evidentiary hearing and jumped bail. The Second Circuit agreed that this was not an extraordinary situation in which a defendant who obstructed justice also deserved an acceptance of responsibility reduction. The fact that the perjury was in response to “aggressive questioning from the bench” and occurred long before his plea agreement was not relevant. The court properly considered the acceptance of responsibility issue only after the counts were appropriately grouped. Finally, defendant was not entitled to advance notice of the denial of the §3E1.1 reduction. A defendant’s acceptance of responsibility is always a factor which must be considered before sentencing. U.S. v. Giwah, 84 F.3d 109 (2d Cir. 1996), abrogation on other grounds recognized by U.S. v. Jaffe, 417 F.3d 259 (2d Cir. 2005).

 

2nd Circuit denies acceptance reduction to defendant who tried to ob­struct justice. (492) The Second Circuit held that defendant’s claim for a § 3E1.1 acceptance of responsibility reduction was frivolous. He attempt­ed to obstruct justice by urging a co-conspirator to lie to the grand jury about the number of times defendant sold marijuana, urged other co-conspir­ators to refuse to cooperate with author­ities, and urged another conspirator to recant a truthful statement already made. Moreover, even after his conviction, defendant maintained that he was not part of the drug conspiracy despite the evidence of his relationship with several conspirators and their numerous discus­sions of price, quantity, and inventory re­plenish­ment. He also maintained he was a minor participant despite evidence of his several hundred thousand dollars in sales. t authorize the court to sentence a defendant meeting its criteria to a sentence below the guidelines range. U.S. v. Thompson, 76 F.3d 442 (2d Cir. 1996).

 

2nd Circuit bases denial of acceptance reduction and obstruction enhancement on same conduct. (492) Defendant argued that the district court impermissibly double counted by denying him credit for acceptance of responsibility and enhancing his sentence for obstruction of justice based on the same conduct. The Second Circuit held that the same conduct can be the basis for both actions. A court may consider a single act that is relevant to two dimensions of the guidelines. The disparity between defendant’s remarks at his plea allocution and at a co-defendant’s trial evidenced both a failure to accept responsibility and an attempt to obstruct justice. U.S. v. Then, 56 F.3d 464 (2d Cir. 1995).

 

2nd Circuit denies reduction and imposes obstruction enhancement for fleeing jurisdiction. (492) The government stipulated in defendant’s plea agreement that if he pled guilty and demonstrated personal responsibility for his criminal conduct, he would receive an acceptance of responsibility reduction. However, defendant fled the jurisdiction under an assumed name, took up residence in Arizona, and fraudulently obtained public benefits from that state. He failed to appear for sentencing and was a fugitive for 39 days. The Second Circuit upheld the denial of an acceptance of responsibility reduction and the imposition of an obstruction of justice enhancement. By willfully failing to appear, defendant failed to accept responsibility for his offense, regardless of the plea agreement’s stipulation. Moreover, intentional flight from a judicial proceeding is grounds for both the obstruction enhancement and the denial of an acceptance of responsibility reduction. U.S. v. Loeb, 45 F.3d 719 (2d Cir. 1995).

 

2nd Circuit relies on same statements to enhance for obstruction and deny acceptance of responsibility reduction. (492) Defendant fraudulently posed as a doctor. The district court enhanced defendant’s sentence for obstruction of justice and denied him a reduction for acceptance of responsibility, based on his insistence during his plea allocution that he was a doctor. The 2nd Circuit held this was proper, because double counting is legitimate where a single act is relevant to two dimensions of the guidelines analysis. The statements warranted an obstruction enhancement, even if the government and the court knew that defendant was not a physician. The untruthful statements also evidenced his failure to acknowledge the wrongfulness of his conduct. U.S. v. Echevarria, 33 F.3d 175 (2nd Cir. 1994), superseded on other grounds by guideline as stated in U.S. v. Hussey, 254 F.3d 428 (2d Cir. 2001).

 

2nd Circuit rejects acceptance of responsibility reduction for defendant who obstructed justice. (492) Defendant and a co-defendant beat a witness.  Defendant had the co-defendant submit a false affidavit stating that defendant was not involved in the beating.  The 2nd Circuit upheld the district court’s refusal to grant defendant a reduction for acceptance of responsibility.  The fact that defendant attempted to further obstruct the investigation and prosecution of his case indicated that he did not accept responsibility for his offense.  U.S. v. Fredette, 15 F.3d 272 (2nd Cir. 1994).
2nd Circuit rejects three level acceptance of responsibility reduction in light of de­fendant’s obstructive conduct. (492) De­fendant contended that he was entitled to a three level, rather than a two level, reduction for acceptance of responsibility based on his cooperation.  The 2nd Circuit found that in light of defendant’s obstructive conduct (he had advised his victims not to talk to the FBI), the refusal to grant the additional credit for acceptance of responsibility was not an abuse of discretion.  U.S. v. Booth, 996 F.2d 1395 (2nd Cir. 1993)

 

2nd Circuit upholds acceptance of responsi­bility reduction despite enhancement for ob­struction of justice. (492) The 2nd Circuit up­held a reduction for acceptance of responsi­bility even though the district court had also enhanced de­fendant’s sentence for obstruction of justice.  The enhance­ment was based upon defendant’s failure to provide the court with a handwriting exemplar.  However, the district court could properly have found that defen­dant’s acceptance of re­sponsibility was excep­tional.  Defendant pled guilty to all charges in a four count indictment, and admitted in some detail his activities in connection with the criminal enter­prise.  U.S. v. Restrepo, 936 F.2d 661 (2nd Cir. 1991).

 

3rd Circuit upholds denial of acceptance reduction despite prompt surrender and guilty plea. (492) Defendant pleaded guilty to interstate transportation to engage in sex with a minor, in violation of 18 U.S.C. § 2241(c). In the plea agreement, the government agreed to recommend a two-level decrease in offense level for accep­tance of responsibility. The district court declined to grant the reduction because it found that defendant obstructed the investiga­tion, denied elements of the offense, and blamed his crime on others, including the two-year-old victim. The Third Circuit affirmed the district court, noting that although defendant promptly surrendered to police, admitted his conduct, and pleaded guilty, he later recanted some of his admissions and sought to withdraw his guilty plea, raised “specious” arguments concerning his criminal intent, and “consis­tently attempted to blame others for his reprehensible conduct.” The court also noted that during the investi­gation of the case, defendant destroyed three hard drives and counseled another person to destroy a hard drive. U.S. v. King, 604 F.3d 125 (3d Cir. 2010).

 

4th Circuit rejects bright-line rule that accep­tance credit can be denied only if obstruction occurs after guilty plea. (492) The district court denied a reduction for acceptance of responsi­bility because defendant had absconded from pre-trial services before her guilty plea. Defen­dant argued that her decision to accept responsi­bility occurred when she pleaded guilty, and argued that the court could not consider her obstruction because it occurred before her plea. The Fourth Circuit upheld the denial of the acceptance reduction, rejecting a bright-line rule that an acceptance of responsibility reduction should be applied so long as the defendant does not obstruct justice after pleading guilty. The question of whether a defendant who obstructed justice is entitled to an accept­ance reduction is a factual matter to be determined by the district court. Here, the district court properly found that the facts were not so extraordinary as to warrant an acceptance reduction in the face of an obstruction en­hancement. There was no clear error. U.S. v. Knight, 606 F.3d 171 (4th Cir. 2010).

 

4th Circuit reverses acceptance reduction where defendant obstructed justice. (492) Defendant became a fugitive before sentencing, and lived under a false name supported by false identification documents for six months before being caught. Nevertheless, the district court refused to increase his sentence for obstruction of justice and gave him credit for acceptance of responsibility. The district court found that defendant’s flight was prompted by fear that the government was not going to recommend a reduction in his sentence for his assistance to the authorities. On appeal, the Fourth Circuit reversed, concluding as a matter of law that fear that the government will not recommend a downward departure for assistance is not the “extraordinary case” that permits credit for acceptance of responsibility when the defendant’s conduct supports an increase for obstruction of justice. U.S. v. Hudson, 272 F.3d 260 (4th Cir. 2001).

 

4th Circuit says fear for life did not justify flight from jurisdiction. (492) Defendant pled guilty to passing a counterfeit federal reserve note. He received an obstruction of justice enhancement because—while on release pend­ing sentencing—he fled to Florida and failed to appear for his sentencing hearing. Defendant argued that this was an extraordinary case where he also deserved an acceptance of responsibility reduction since he fled out of fear for his life. The Fourth Circuit disagreed, since the fear did not excuse defendant’s conduct. Defendant had other options besides flight that would not have violated the terms of his release. He could have disclosed the threats to his probation officer, a member of the Secret Service, or a member of the local police depart­ment, who could have ensured defendant received appropriate pro­tec­tion. Furthermore, defendant only returned to the court’s juris­diction upon his arrest in Florida for attempting a check scam. This similar conduct showed a failure to accept responsibility for his counterfeiting scheme. U.S. v. Miller, 77 F.3d 71 (4th Cir. 1996).

 

4th Circuit rejects acceptance reduction where defendant denied earlier statement implicating co-conspirator. (492) After her arrest, defendant admitted that she and an associate had previously planned and committed four robberies. However, at the associate’s trial, defendant testified that she could not remember making such statements and disavowed the signature on her confession. She nonetheless claimed that she accepted responsibility by pleading guilty and admitting she committed the four robberies. The Fourth Circuit upheld the denial of the § 3E1.1 reduction based on defendant’s obstruction of justice. Defendant intentionally misled police about her co-conspirator’s involvement in the offenses. Since the obstruction of justice enhancement was proper, the denial of the § 3E1.1 reduction was proper. U.S. v. Murray, 65 F.3d 1161 (4th Cir. 1995).

 

4th Circuit denies acceptance of responsibility where defendant claimed amnesia about actions. (492) Defendant was convicted of making threatening phone calls to an IRS office. He argued that he should receive an acceptance of responsibility reduction because he only went to trial to challenge whether the statements he made constituted a threat under law. The 4th Circuit upheld the denial of the reduction, in light of defendant’s testimony that he had a memory lapse for about 24 hours after he made one of the threatening calls, and therefore did not recall purchasing the bomb supplies in his house. He also asserted that he needed some of the supplies to control a cockroach problem, and that he intended to make a garden sprinkler system out of the PVC piping he had purchased. U.S. v. Darby, 37 F.3d 1059 (4th Cir. 1994).

 

4th Circuit denies acceptance of respon­sibility re­duction where defen­dant re­ceived obstruction enhance­ment. (492) The 4th Circuit af­firmed the district court’s denial of a reduction for acceptance of re­sponsibility since defen­dant had also received an enhancement for obstruction of justice.  Note 4 of sec­tion 3E1.1 provides that an enhance­ment for ob­struction of justice ordi­narily indicates that the de­fendant has not ac­cepted responsibility for his crimi­nal con­duct.  U.S. v. Melton, 970 F.2d 1328 (4th Cir. 1992).

 

4th Circuit upholds denial of credit for accep­tance of re­sponsibility where defendant ob­structed jus­tice. (492) Defendant argued that the district court erred in refus­ing to grant him a two point decrease in his of­fense level for accep­tance of responsi­bility under § 3E1.1.  He as­serted that 1) he had no notice that evi­dence of obstruc­tion was going to be introduced, 2) since the court re­fused to in­crease his offense level for the al­leged ob­struction of justice un­der § 3C1.1, it was error to consider it for accep­tance of responsi­bility pur­poses, and 3) he pled guilty and as stated he would coop­erate with the police.  The Fourth Circuit rejected his argu­ments, holding that the trial court’s deter­mination was not clearly erroneous.  U.S. v. White, 875 F.2d 427 (4th Cir. 1989).

 

5th Circuit denies acceptance reduction to defendant who lied to court during sentencing. (492) Defendant argued that he deserved a reduction for acceptance of responsibility based on his guilty plea and cooperation with authorities. However, the district court found that defendant did not qualify for an acceptance reduction because he had lied to the court during the sentencing hearing on a material matter. The Fifth Circuit upheld the denial of the reduction based on defendant’s obstructive conduct. To establish an extraordinary case for purposes of §3E1.1, a defendant must show more than a guilty plea and a cessation of obstructive conduct. Defendant’s false testimony occurred after his guilty plea. Post-plea obstructive conduct will disqualify a defendant from receiving the acceptance reduction. U.S. v. Brown, 539 F.3d 835 (5th Cir. 2008).

 

5th Circuit finds late attempt to accept responsibility did not overcome long record of obstruction. (492) An obstruction of justice enhancement “ordinarily indicates that the defendant has not accepted responsibility for his conduct. There may, however, be extraordinary cases in which [both adjustments] may apply.” Note 4 to USSG § 3E1.1. Relying on U.S. v. Hopper, 27 F.3d 378 (9th Cir. 1994), defendant argued that he presented such an extraordinary case, noting that he did not obstruct justice after his guilty plea, and that he voluntarily disclosed concealed property. Hopper held that an extra­ordinary case exists as long as the defendant “eventually” accept responsibility for his crime and stops obstructing justice. The Fifth Circuit rejected Hopper’s interpretation of what constitutes an extraordinary case. “The fact that a defendant, having done everything he could to obstruct justice, runs out of tricks, throws in the towel, and pleads guilty does not make him a prime candidate for rehabilitation.” U.S. v. Buckley, 192 F.3d 708 (7th Cir. 1999). Defendant concealed over $640,000 in assets from his bankruptcy creditors, and made false statements to the government to hide the assets. He signed a plea agreement with the government in November 1999 but then refused to plead guilty. This forced the government to seek the instant indictment. Defendant continued to conceal assets until his guilty plea just a few days before trial. Under these circumstances, defendant’s “voluntary” disclosure of another concealed property at that time and his apologetic letter to the court did not demonstrate acceptance of responsibility. U.S. v. Chung, 261 F.3d 536 (5th Cir. 2001).

 

5th Circuit denies acceptance reduction for defendant who obstructed justice by failing to appear. (492) Defendant’s initial PSR recom­mended a three-level acceptance of re­sponsi­bi­l­ity reduction. Defendant then failed to appear at her sentencing hearing, and a warrant was issued for her arrest. She later turned herself in. At her second sentencing hearing, she received an obstruction of justice enhancement and was denied an acceptance of responsibility reduction. Note 4 to § 3E1.1 says that con­duct resulting in an obstruction enhancement ordinarily indicates that the defendant has not accepted responsibility for his conduct; however, there may be “extraordinary cases in which the adjustments under both §§ 3C1.1 and 3E1.1 may apply.” The Fifth Circuit agreed that defendant’s eventual voluntary surrender did not present such an extraordinary circumstance. Thus, the district court properly denied defendant the acceptance reduction. U.S. v. Lujan-Sauceda, 187 F.3d 451 (5th Cir. 1999).

 

5th Circuit denies reduction to defen­dant who went to trial and obstructed justice. (492) The government challenged the district court’s reduc­tion of defendant’s offense level for acceptance of responsibility. The Fifth Circuit agreed that the reduction was erroneous since defendant went to trial and obstructed justice. This was not an extra­ordinary case that justified both an obstruction of justice enhancement and an acceptance of respon­sibility reduction. Defen­dant admitted transport­ing cocaine only after a trial and a guilty verdict. Even his admission of guilt was less than frank. He only admitted involvement in one shipment, and claim­ed he was only paid $9,000, rather than the $19,000 or $13,000 to which others testified. U.S. v. Marmolejo, 106 F.3d 1213 (5th Cir. 1997).

 

5th Circuit denies acceptance reduction where defendant fled while on pretrial supervision. (492) In 1992, defendant was indicted on drug charges. He failed to appear for a pretrial hearing and remained a fugitive until his arrest in 1993. He claimed he was entitled to an acceptance of responsibility reduction because he pled guilty promptly after being arrested on the fugitive warrant and his plea agreement recommended the reduction. The Fifth Circuit held that this was not an extraordinary case in which a defendant who obstructed justice also deserved an acceptance of responsibility reduction. U.S. v. Ayala, 47 F.3d 688 (5th Cir. 1995).

 

5th Circuit denies acceptance of responsibility for defendant who fled before sentencing. (492) Defendant claimed he was entitled to an acceptance of responsibility reduction because he pled guilty, cooperated with the government, and provided the DEA with information that resulted in a conviction. The Fifth Circuit held that defendant was not entitled to the reduction because he fled prior to sentencing and remained a fugitive for over two years. U.S. v. Tremelling, 43 F.3d 148 (5th Cir. 1995).

 

5th Circuit relies on perjury and prosecutor’s as­sertion to find perjury. (492) Defendant argued that he was entitled to a reduction for acceptance of re­sponsibility because he pled guilty.  The 5th Circuit upheld the denial of the reduction.  At his detention hearing, defendant lied under oath, denying that he possessed a listed chemical on the date of his of­fense.  Although the government appeared to concede that defendant’s perjury was insufficient to justify denying the reduction, the district court was still enti­tled to consider the perjury.  The prosecutor’s state­ments supported the district court’s conclusion that defendant did not show sincere contrition.  The dis­trict court was free to consider the prosecutor’s unsworn assertion.  U.S. v. Patterson, 962 F.2d 409 (5th Cir. 1992) does not prohibit a court from con­sidering the unsworn statements of the prosecutor, it only bars relying exclusively on the prosecutor’s ac­count. U.S. v. Calver­ley, 11 F.3d 505 (5th Cir. 1993).

 

5th Circuit says extra level for acceptance may not be denied based on obstruction. (492) The 5th Circuit announced a tripartite test for determining whether a defendant is entitled to the an additional one-level reduction for acceptance of responsibility under section 3E1.1(b):  (a) the defendant must qualify for the basic two-level reduction; (b) the offense level must be 16 or more; and (c) defendant must assist authorities by timely furnishing information about the defendant’s own involvement (subsection (b)(1)) or timely notify authorities that he will plead guilty (subsection (b)(2)).  The timeliness in (b)(2) relates to increasing government efficiency in only two areas:  the prosecution’s trial preparation, and the court’s ability to manage its calendar.  The one point reduction may not be denied based on defendant’s obstruction of justice where, as here, the district court expressly elected not to deny the basic subsection (a) reduction. U.S. v. Tello, 9 F.3d 1119 (5th Cir. 1993).

 

5th Circuit denies acceptance of responsi­bility re­duction to defendant who con­cealed his true iden­tity from police. (492) The 5th Circuit affirmed the district court’s decision to deny defendant a reduc­tion for acceptance of responsibility.  Defendant con­cealed his true identity from law enforcement officials for over a month in an effort to hide his criminal record.  This fact alone was suf­ficient to support the denial.  In addition, de­fendant also denied the charges against him, despite the admissions in the factual basis and the evidence against him. U.S. v. Mc­Donald, 964 F.2d 390 (5th Cir. 1992).

 

5th Circuit denies acceptance of responsi­bility be­cause defendant received obstruc­tion enhance­ment for perjury. (492) The 5th Circuit upheld the denial of a reduction for acceptance of responsibility where the de­fendant also received an enhancement for ob­struction of justice based upon his perjury.  Application note 4 to section 3E1.1 indicates that conduct resulting in an enhancement for obstruction of justice ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. U.S. v. Goldfaden, 959 F.2d 1324 (5th Cir. 1992).

 

5th Circuit denies acceptance of responsi­bility reduc­tion where defendant also ob­structed justice. (492) The 5th Cir­cuit re­jected defendant’s claim that he was entitled to a re­duction for acceptance of responsi­bility because he pled guilty.  Defendant received an en­hancement for ob­struction of justice based upon his use of an alias and false birth cer­tificate.  This was not an “extraordinary case” in which ad­justments under both sec­tions 3C1.1 and 3E1.1 applied. U.S. v. Ro­driguez, 942 F.2d 899 (5th Cir. 1991).

 

5th Circuit affirms obstruction enhancement for defen­dant who hid gun and drug money from arresting offi­cers. (492) When agents attempted to arrest defendant after a drug transaction, she ran away but was captured several minutes later.  When apprehended, defendant was no longer in possession of the gun she had been car­rying or the money from the drug sale.  These were found hidden nearby, under a car and in a spare tire.  The 5th Circuit upheld an en­hancement for ob­struction of justice, rejecting defendant’s argu­ment that the gun was irrelevant to her charge of con­spiracy to distribute methamphetamine.  The gun was rele­vant to defendant’s criminal conduct, as it could have been used to “back up” her drug deals.  In addition, the drug money given to defendant by undercover agents in the drug deal was very material.  Moreover, defendant was properly denied a reduction for acceptance of responsibility, since the guidelines in effect at the time defen­dant was sentenced pre­cluded a defendant who had obstructed justice from receiv­ing a reduc­tion for acceptance of responsibility.  U.S. v. Ainsworth, 932 F.2d 358 (5th Cir. 1991).

 

5th Circuit finds reduction for acceptance of responsi­bility not warranted where defendant obstructed justice. (492) Defendant received a two level increase for ob­struction of justice and argued that it should not pre­clude her from re­ceiving a sentence reduction for ac­ceptance of re­sponsibility.  The 5th Circuit noted that con­tem­poraneous adjustments for both obstruc­tion of justice and acceptance of responsibility are permitted, but are rare, and can only occur in “extraordinary cir­cumstances.”  Although defen­dant did offer to cooperate with authori­ties and to testify at her co-conspirator’s trial, her testimony was never used and she did ob­struct justice by failing to notify the DEA of her co-con­spirator’s whereabouts.  Therefore, this was not an extraor­dinary circumstance justifying a reduction for ac­ceptance of respon­sibility.  U.S. v. Edwards, 911 F.2d 1031 (5th Cir. 1990).

 

5th Circuit upholds finding that defendant who ob­structed jus­tice was not entitled to re­duction for accep­tance of re­spon­sibility. (492) At the time of defendant’s senten­cing, Appli­cation Note 4 of § 3E.1 of the guidelines pro­vided that an adjustment for acceptance of responsibility was not available where a defen­dant ob­structed justice.  This pro­vi­sion was subsequently amended to permit, in “extra­ordinary cases,” adjust­ments for both accep­tance of re­sponsibility and ob­struction of jus­tice.  The 5th Circuit found that even if this amended note had been in effect at the time defen­dant was sen­tenced, defendant’s case was not extraor­dinary.  Al­though defendant had acknowledged his guilt, “a guilty plea does not entitle a defendant to sen­tence reduction as a matter of right.”  U.S. v. Paden, 908 F.2d 1229 (5th Cir. 1990).

 

5th Circuit upholds refusal to grant reduction for accep­tance of responsibility when defen­dant “obstructed jus­tice.” (492) The district court refused to grant defendant a two level decrease for acceptance of responsibility after he pled guilty to bank fraud.  Defen­dant had destroyed bank records and false identification he used in the fraud, and had given a false name when arrested.  Since defen­dant had ob­structed justice by these acts, the 5th Circuit held that the district court’s refusal to give the reduction was “not without foun­dation.”  U.S. v. Irabor, 894 F.2d 554 (2nd Cir. 1990).

 

5th Circuit upholds finding that defendant did not ac­cept responsibility because he ob­structed justice. (492) The sole evidence that defendant accepted responsibility was his guilty plea.  Although the plea may “provide some evidence” of his acceptance of responsibility, the fact that defendant ob­structed justice led the 5th Circuit to con­clude that he had not “carried his burden of estab­lishing” that he ac­cepted re­sponsibility.  U.S. v. Mayard, 891 F.2d 530 (5th Cir. 1989).

 

6th Circuit affirms government’s refusal to move for additional acceptance reduction. (492) At sentencing, the government argued that defendant was not entitled to a two-level reduc­tion for acceptance of responsibility, claiming that he had obstructed justice. The district court, however, granted the reduction because it determined that defendant had not obstructed justice and had pled guilty prior to trial. The government then declined to move for a third-level reduction based on information it had first received the day before the sentencing hearing. His former girlfriend told the govern­ment that in July 2008, defendant had threatened her on the telephone. Defendant argued that because the conduct cited by the government did not amount to obstruction of justice, its justi­fication for refusing to move for the third level reduction was arbitrary. The Sixth Circuit held that the government’s decision not to move for the additional one-level reduction was not arbitrary. Given the evidence that defendant had threaten­ed his former girlfriend, and that she was scared to testify at the sentencing hearing, the govern­ment had reason to believe in good faith that defendant had not accepted responsi­bility. U.S. v. Coleman, 627 F.3d 205 (6th Cir. 2010).

 

6th Circuit says denial of acceptance reduction and imposition of obstruction increase was not double counting. (492) Defendant argued that the district court engaged in impermissible “double counting” by citing his escape from jail as a basis both for (i) denying a two-level reduction for acceptance of responsibility under § 3E1.1, and (2) applying a two-level enhancement for obstruction of justice under § 3C1.1. However, the Sentencing Guidelines not only permit the “double counting” raised by defendant here, they dictate that this is the proper result in all but the most “extraordinary” cases. See Note 4(e) to § 3E1.1 (obstruction under § 3C1.1 ordinarily indicates that a defendant has not accepted responsibility for his criminal conduct; both adjustments apply only in “extraordinary” cases). While the Sixth Circuit found no legal problem in the enhancement under § 3C1.1 and the denial of a downward adjustment under § 3E1.1, the panel nonetheless found that the court did not make the requisite factual findings in support of its application of the guidelines, and remanded. The district court’s adoption of the PSR, without making findings on all controverted issues, violated Fed. R. Crim. P. 32(c)(1). U.S. v. Robinson, 390 F.3d 853 (6th Cir. 2004).

 

6th Circuit says defendant who pled guilty was not entitled to acceptance reduction where he also obstructed justice. (492) Defendant argued that he was entitled to received a reduction for acceptance of responsibility because he pled guilty. However, Note 3 to § 3E1.1 makes clear that a “defendant who enters a guilt plea is not entitled to an [acceptance] adjustment … as a matter of right.” Moreover, defendant attempted to withdraw his guilty plea twice, claiming that he did not commit the acts alleged in the charges. Defendant’s case was not an “extraordinary” one that justified both an obstruction enhancement and a reduction for acceptance of responsibility. The Sixth Circuit upheld the denial of the acceptance reduction. U.S. v. Turner, 324 F.3d 456 (6th Cir. 2003).

 

6th Circuit upholds denial of acceptance reduction where there was recurrent pattern of obstruction. (492) Prior to sentencing on robbery charges, defendant submitted several false letters of reference in order to influence the judge to grant him a downward departure. After Kulberg, the mother of defendant’s children, notified the court that a fraudulent letter had been submitted in her name, defendant was charged with obstruction of justice. After his arrest on obstruction charges, defendant approached Kulberg and requested that she advise the FBI that she had consented to permit defendant to write the letter he had forged. Based on his attempt to suborn perjury of a witness, he received an obstruction of justice increase to the offense level for his obstruction offense. Although defendant argued he was also entitled to a § 3E1.1 acceptance of responsibility reduction, the district court disagreed. Instead, the judge noted a recurrent pattern of obstruction by defendant that forced the government to bring Kulberg from Florida to disprove the false information. Moreover, defendant insisted through­out the proceedings that, in the face of reliable and truthful testimony, he did not approach Kulberg in an attempt to convince her to recant her testimony before the FBI. The Sixth Circuit upheld the denial of the acceptance of responsibility reduction. U.S. v. Roche, 321 F.3d 607 (6th Cir. 2003).

 

6th Circuit says defendant was entitled to acceptance reduction even though also subject to obstruction increase. (492) Defendant’s sister transferred drugs to defendant while he was in prison, in violation of 18 U.S.C. § 1791(a)(1) and (2). When federal investigators first interviewed defendant, he admitted accepting the drugs from his sister. He also agreed to cooperate in the investigation if his sister received no prison time. However, officials then intercepted a letter and a card from defendant to his sister advising her not to cooperate with federal officers. That same day he met with FBI officials, and asked to speak with his sister. He then called his sister and told her to cooperate with FBI officials. The district court imposed an obstruction of justice increase based on the letters. The Sixth Circuit found that this was an extraordinary case that would also permit an acceptance of responsibility reduction. Although defendant wrote the obstructive letters to his sister, he effectively undid the conduct by calling her later that day with the FBI agent and urging her to cooperate. All of his obstructive conduct predated his indictment, and he never denied his own responsibility and guilt. Long before he was ever charged with an offense, he cooperated with prison officials and pleaded guilty. U.S. v. Gregory, 315 F.3d 637 (6th Cir. 2003).

 

6th Circuit affirms refusal to give acceptance credit despite possible erroneous basis. (492) After pleading guilty, defendant was released on bond for the express purpose of assisting law enforcement authorities to locate a female fugitive. One day after his release, law enforcement located the fugitive and found the defendant with her. In denying credit for acceptance of responsi­bility, the district court relied in part on defendant’s “obstruction” in failing to tell law enforcement officers where the female fugitive could be found. The Sixth Circuit suggested that this was arguably more germane to an inquiry under the substantial assistance guideline § 5K1.1. However, the panel found no clear error because the district court made detailed findings about defendant’s other failure to accept responsibility in rejecting the reduction. U.S. v. Edwards, 272 F.3d 812 (6th Cir. 2001).

 

6th Circuit approves consideration of all post-indict­ment behavior in assessing acceptance of responsibility. (492) After they were arrested and held in custody and prior to trial, both defendants wrote a letter urging a co-defendant to cover up evidence of their offenses. Both eventually pled guilty, and received § 3C1.1 increases for having obstructed justice. They contended that they presented “extraordinary” cases that merited an acceptance of responsibility reduction despite the obstruction enhancement. They noted that their obstruc­tive conduct occurred early in the government’s investigation, did not have any effort on the government’s case, and they subsequently pleaded guilty. The district judge found nothing “extraordinary” in these cases, and the Sixth Circuit affirmed. The district court began evaluating defendants’ conduct for purposes of the § 3C1.1 increase as of the time they were first indicted. The district court properly considered all post-indictment behavior when assessing whether to grant the acceptance reduction. There is nothing extraordinary about a case in which a defendant pleads guilty after his attempts to obstruct justice are thwarted. U.S. v. Harper, 246 F.3d 520 (6th Cir. 2001), overruled on other grounds, U.S. v. Leachman, 309 F.3d 377 (6th Cir. 2002).

 

6th Circuit denies acceptance reduction for defendant who obstructed justice by use of assumed name. (492) Defendant received an obstruction of justice enhancement because he was not truthful with the probation office and the magistrate judge about his legal name and criminal history. He argued that he deserved an acceptance of responsibility reduction because he pled guilty to the offense in a timely manner. The Sixth Circuit held that the denial of the reduction was properly based on defendant’s obstruction of justice. Defendant had no right to mislead the court and the probation office about his birth name and criminal history. Defendant’s case was not so extra­ordinary as to justify an acceptance reduction where he properly receive an obstruction enhancement. U.S. v. Wilson, 197 F.3d 782 (6th Cir. 1999).

 

6th Circuit says guilty plea did not entitle defendant who committed perjury to acceptance reduction. (492) Defendant claimed that he was entitled to an acceptance of responsibility reduction, as anticipated by his plea agreement, because he quickly confessed his involvement in the charged offense and timely advised authorities of his intent to plead guilty. The Sixth Circuit held that defendant’s guilty plea did not require a finding that he had accepted responsibility for his offense. The district court found that defendant repeatedly perjured himself during the sentencing hearing, and this finding was not clearly erroneous. The perjury was obviously inconsistent with acceptance of responsibility. U.S. v. Gilbert, 173 F.3d 974 (6th Cir. 1999).

 

6th Circuit denies acceptance reduction for threat to kill cooperating co-defendant. (492) Defendant pled guilty to wire and mail fraud. The parties stipulated in his plea agreement that defendant would receive a § 3C1.1 obstruction of justice enhancement for threatening a co-defendant. The Sixth Circuit affirmed the denial of an acceptance of responsibility reduction. Defendant did not voluntarily withdraw from criminal conduct, since he threatened to kill a cooperating co-defendant. His plea was untimely, since it came only after his arrest for threatening to kill the codefendant. The threat also constituted obstruction of justice. U.S. v. Robinson, 152 F.3d 507 (6th Cir. 1998).

 

6th Circuit says third level for acceptance cannot be denied for obstruction. (492) Defendant argued that the district court erred in granting him only a two-level acceptance of responsibility reduction rather than a three-level reduction. The district court refused to grant defendant the additional reduction because it found that he had obstructed justice by writing to a co-defendant and urging him not to cooperate with the government. The Sixth Cir­cuit held that the district court erred in refusing to determine whether defendant was entitled to an additional one-point reduction under § 3E1.1(b). Because the court gave defen­dant a two-level acceptance of responsi­bility reduc­tion, this implied that the court found that this was an extraordinary case in which the defen­dant was entitled to both a § 3C1.1 en­hance­ment and a § 3E1.1 reduction. The court should also have determined whether defendant met the qualifications for the additional point reduction for “super” acceptance of responsibility. U.S. v. Corrigan, 128 F.3d 330 (6th Cir. 1997).

 

6th Circuit affirms obstruction increase for perjury and trying to stall investigation. (492) Defendant was convicted of willfully filing false personal income tax returns for the years 1986, 1987 and 1988, and a false corporate return for 1988. The Sixth Circuit affirmed an obstruction of justice enhancement based on his perjury and attempt to stall the government’s investigation of his offense. For example, he told an investigator that someone else was the president of the corporation and that all questions should be handled by her, but later claimed that he was the vice president of the corporation and its custodian of records. Given this obstructive conduct, the denial of an acceptance of responsibility reduction was also appropriate. Not only did defendant not admit responsibility, he perjured himself, may have suborned perjury, and obstructed the investigation. The mere fact that he filed an amended 1987 tax return, assisted in filing an amended 1988 corporate tax return, and paid some additional money to the IRS did not require a reduction for acceptance of responsi­bility. U.S. v. Tandon, 111 F.3d 482 (6th Cir. 1997).

 

6th Circuit affirms obstruction enhancement for missing court appearance and hiding from arrest­ing officers. (492) The district court imposed an obstruction of justice enhancement because defendant missed a court appearance and, after the court issued a warrant, defendant tried to hide from arresting officers. The Sixth Circuit affirmed. Appli­cation Note 3(e) to § 3C1.1 states that willfully failing to appear for a judicial proceeding warrants the enhancement. The conduct also warranted the denial of an acceptance of responsibility reduction. U.S. v. Hill, 79 F.3d 1477 (6th Cir. 1996).

 

6th Circuit rejects § 3E1.1 reduction for defendant who went to trial and lied about involvement in offense. (492) Defendant and others committed a bank robbery. The Sixth Circuit approved the denial of an acceptance of responsibility reduction since defendant went to trial and lied about her involvement in the robbery. U.S. v. Lowery, 60 F.3d 1199 (6th Cir. 1995).

 

6th Circuit increases for obstruction and denies acceptance credit based on trial perjury. (492) Defendants were convicted of attempted carjacking. At trial defendants testified that they never intended to steal their robbery victim’s truck. The Sixth Circuit upheld an obstruction of justice enhancement and approved the denial of an acceptance of responsibility reduction based on defendants’ trial perjury. The fact that defendants admitted committing an armed robbery did not negate their denial of the carjacking. Defendants were not challenging the applicability of the carjacking statute; they were contesting the victim’s version of the facts. U.S. v. Hudson, 53 F.3d 744 (6th Cir. 1995).

 

6th Circuit denies acceptance of responsi­bility where defendant untruthfully testi­fied that he withdrew from conspiracy. (492) Defendant con­tended that he did not receive an acceptance of re­sponsibility reduc­tion because he decided to testify on his own behalf at trial and stated that he withdrew from the conspiracy.  The 6th Circuit upheld the de­nial of the reduction based upon the district court’s determination that defendant had not withdrawn from the conspiracy as he testified.  Because it found that defendant had testified untruthfully, the court was war­ranted in refusing to give him the reduction. U.S. v. Payne, 962 F.2d 1228 (6th Cir. 1992).

 

6th Circuit affirms denial of acceptance of responsibil­ity reduction to defendant who denied culpability. (492) De­fendant was convicted of the sec­ond-degree mur­der of his four-year old son and for committing and permit­ting first-de­gree criminal child abuse.  The 6th Circuit af­firmed the denial of a reduc­tion for acceptance of respon­sibility.  While defen­dant admitted his culpability for beat­ing the child, he never admitted his cul­pability with respect to the child’s death.  Moreover, defendant and his wife originally told au­thorities that the child received the in­juries from the child’s mother’s (fictitious) boyfriend.  This deception earned de­fendant an en­hancement for obstruc­tion of justice.  Defen­dant, noting that he did everything possi­ble to save the child’s life after he “fell” down the stairs, urged the court to interpret this as a sign of sincere contrition.  However, the court found it more likely that de­fendant took the child to the hospital because “a dead four-year-old is even harder to explain away than a seri­ously battered four-year old.”  U.S. v. Phillip, 948 F.2d 241 (6th Cir. 1991).

 

7th Circuit rejects acceptance credit where defendant used alias throughout court proceedings. (492) Defen­dant received an obstruction of justice enhancement based on his use of an alias at his arrest, pretrial services interview, initial appearance, and other court proceed­ings. He argued that he was nonetheless entitled to an acceptance of responsibility reduction because his use of the alias did not actually impede the prosecution of the case, he did not flee after being released on bond, he maintained contact with the pretrial services department, he pleaded guilty, and he participated in a safety-valve interview in which he admitted involvement in the drug transaction. The Seventh Circuit disagreed, and upheld the denial of the reduction. Defendant did not show extraordinary acceptance of responsibility. His deception about his identity was repeated and long-lasting. Every criminal defendant is expected to refrain from becoming a fugitive. Moreover, defendant did not plead guilty until a week before trial, after the government had uncov­er­ed his true identity and prepared for trial. U.S. v. Sandoval, 747 F.3d 464 (7th Cir. 2014).

 

7th Circuit denies acceptance reduction to defendant who tried to intimidate witness. (492) Defendant and his wife extorted money from Tenorio by threatening Tenorio and his parents. Defendant challenged the court’s refusal to grant him an acceptance of responsibility reduction, noting he admitted to having engaged in the activity and had cooperated with the FBI and the probation officer. The Seventh Circuit denied the reduction because defendant also obstructed justice. An informant who was in jail with defendant testified that defendant had offered to pay him to have Tenorio either intimidated into not testifying or kidnapped and taken to Mexico. Defendant denied this, but faced with conflict­ing testimony, the sentencing judge was entitled to be­lieve the informant over the extortionist. The judge was ultimately swayed by a note that the informant had given the FBI. It was in defendant’s handwriting and contained Tenorio’s name, cell phone number, and address, plus information about his employer. The panel rejected the Ninth Circuit’s position that a routine showing of accept­ance of responsibility can wipe out a nontrivial obstruc­tion of justice. U.S. v. Hacha, 727 F.3d 815 (7th Cir. 2013).

 

7th Circuit rejects acceptance credit for defen­dant who tried to obstruct justice. (492) Defendant argued that he should have received a three-level acceptance of responsibility reduc­tion, despite receiving an obstruction of justice en­hance­ment, because his obstructive conduct was minimal and was outweighed by his showing of acceptance of responsibility. Defen­dant admit­ted that shortly after he was arrested he asked his girlfriend to remove from his residence the boots he wore during the robbery; however, he main­tained that this was a futile act because the FBI had already retrieved that evidence before he attempted to hide it. He also contended that his attempt to fabricate an alibi was only minimally obstructive because there was already evidence linking him to the robbery. Defendant contended that his acceptance of responsibility was consid­erable because he entered into a plea agreement with the govern­ment, willingly participated in the investigation, did not falsely deny his conduct, and did not further obstruct justice after his first attempt to do so. The Seventh Circuit was unper­suaded. The fact that defendant was unsuc­cess­ful in his attempt to conceal evidence did establish that the district court clearly erred in finding that defendant’s case was not “extra­ordinary.” U.S. v. Black, 636 F.3d 893 (7th Cir. 2011).

 

7th Circuit finds defendant who obstructed justice by fleeing for two years did not accept responsibility. (492) After being arrested and told that he would be prosecuted for drug offenses, defendant agreed to cooperate with the government and was released from jail. Part of the agreement was that he would keep in touch with the prosecutors. But after a month, he moved to Florida without telling them and was there for two years before being apprehended and brought back to Chicago to stand trial. He received an obstruction of justice increase, and the Seventh Circuit upheld the denial of a two-level acceptance of responsibility reduction. Although the obstruction enhancement does not automati­cally preclude a finding that the defendant accepted responsibility, the case must be “extraordinary” to also warrant the accep­tance reduction. Here, a two-year manhunt was necessary to bring defendant to trial after he procured his release from jail by promising to cooperate and keep in touch. The burden on law enforcement exceeded any benefit to law enforcement from his guilty plea. U.S. v. Gonzalez, 608 F.3d 1001 (7th Cir. 2010).

 

7th Circuit denies acceptance reduction to defendant who obstructed justice and refused to provide information to government. (492) Defendant, an employee for the Chicago Depart­ment of Transportation, channeled work to truck­ing firms in return for bribes. He received an obstruction of justice increase based on instruc­tions he gave to a cooperating witness to lie and destroy evidence, and misrepresentations he made to the court about his financial situation. Defen­dant challenged the court’s refusal to grant him an acceptance of responsibility reduction, claiming this was one of those “rare cases” in which an enhancement for obstruction of justice can coexist with a reduction for acceptance of responsibility. The Seventh Circuit disagreed. Defendant proud­ly and repeatedly boasted in open court that he would not “rat” on his friends, lied to pretrial services, the magistrate judge, and the probation officer, pled to a narrow set of charges, refused to sign an extensive factual summary of his mis­deeds, and declined to tell prosecutors who had paid him the bribes or how he spent the money. Although a defendant is not obligated to help the government catch other lawbreakers, defendant here gave a less than a full and complete accounting of his own offense conduct. U.S. v. Boyle, 484 F.3d 943 (7th Cir. 2007).

 

7th Circuit denies acceptance reduction for defendant who committed additional crimes after guilty plea. (492) Defendant challenged the district court’s refusal to give him a reduction for acceptance of responsi­bility, claiming that the court had a rigid “policy not to give acceptance when a defendant commits a new offense during the case.” Thus, he claimed the court failed to engage in the “context-specific” inquiry re­quired for determining whether a defendant should receive an acceptance of responsibil­ity reduction. The Seventh Circuit found no clear error. It was “troublesome” that the judge said she had a “practice” of not giving defendants a reduction when they continue to engage in criminal activity, because the guidelines do not authorize the court to adopt a per se rule denying a reduction when a defendant engages in further criminal activity after his plea. However, the judge’s com­ments taken as a whole showed that she “properly weighed all the circumstances before rejecting the adjustment for accep­tance of responsibility.” Other comments made by the judge indicated she made a “context-specific inquiry” into defendant’s case. U.S. v. Bothun, 424 F.3d 582 (7th Cir. 2005).

 

7th Circuit says finding of no acceptance of responsibility was inconsistent with evidence.  (492) The district court refused to reduce defendant’s offense level for acceptance of responsibility since it had found that defendant had obstructed justice. As an alternative basis, the district court found that defendant attempted to minimize his role in the scheme by providing during the plea colloquy “simply a general, barebones description of the visa scheme lacking in any detail [and] woefully lacking for purposes of a § 3C1.1 reduction.” Since the Seventh Circuit reversed the obstruction increase, it then examined whether the alternative basis for denial of the acceptance reduction could withstand scrutiny. The district court ignored the fact that defendant engaged in numerous, intensive proffer sessions over a period of months, in which he descried his illegal conduct in considerable detail. Without the anchor of a valid obstruction of justice finding, the court’s alternative reasons for finding that defendant did not accept responsibility could not stand in light of the cooperation defendant provided in good faith during the proffer sessions. The district court’s finding that defendant did not demonstrate acceptance of responsibility was inconsistent with the evidence. U.S. v. Carroll, 346 F.3d 744 (7th Cir. 2003).

 

7th Circuit rules defendant who obstructed justice was not entitled to acceptance reduction. (492) Defendant received an obstruction of justice increase based on his attempt to intimidate a witness. The district court found that this obstructive conduct also barred him from receiving a three-level reduction for acceptance of responsibility. The Seventh Circuit agreed. Defendant offered no good reason why this was an “extraordinary case” that would qualify as an exception to the ordinary rule that obstructive conduct ordinarily indicates a lack of acceptance of responsibility. U.S. v. Boos, 329 F.3d 907 (7th Cir. 2003).

 

7th Circuit holds that defendant did not show his case was extraordinary. (492) Because defendant obstructed justice, he was required to demonstrate that his case was “extraordinary” so as to justify a downward adjustment for acceptance of responsibility. See Note 4 to § 3E1.1. Defendant made no effort to show why his case was extraordinary, and thus was properly denied the acceptance reduction. After the indictment, defendant remained a fugitive, warning a co-defendant that all the evidence in their apartment had to be destroyed. After authorities apprehended him, defendant escaped from jail and was later caught in a room with a loaded submachine gun. Defendant admitted to authorities that he was waiting to receive new identification and was planning to leave the area shortly. Defendant decided to accept responsibility only as a last recourse. The Seventh Circuit held that the district court properly denied defendant a two-level reduction for acceptance of responsibility. U.S. v. Fudge, 325 F.3d 910 (7th Cir. 2003).

 

7th Circuit upholds denial of acceptance reduction to defendant who committed perjury at trial. (492) Defendant cooperated extensively in the arrests of the other defendants. Without defendant, there would have been no initial arrests. Defendant pled guilty even after he had lost the protection of a plea agreement. However, the district court found that he obstructed justice by stating at trial that he could not remember the facts as they related to the other defendants. The district court also refused to grant defendant a reduction for acceptance of responsi­bility since he perjured himself at trial. Defendant argued that the district court did not recognize that in extraordinary cases a defendant who obstructs justice can receive an acceptance reduction. The Seventh Circuit found no error, since the court stated that even if it could grant the reduction, it would not have done so. Thus, even if the court did not recognize the extraordinary case exception, such error did not affect the outcome. U.S. v. Gonzalez, 319 F.3d 291 (7th Cir. 2003).

 

7th Circuit denies acceptance reduction for lies under oath at hearing. (492) After pleading guilty, defendant’s counsel moved to withdraw, stating that defendant claimed that counsel had threatened him into agreeing to file a guilty plea and was not acting in defendant’s best interest. At the hearing on this matter, defendant testified that he had lied at the plea colloquy because he was scared and did not know what to do. The court granted the motion to withdraw, and defendant retained new counsel. The district court refused to grant defendant a two-level acceptance of responsibility reduction because it believed that defendant lied at the withdrawal hearing when he disavowed his earlier statements at his plea colloquy. The Seventh Circuit held that defendant’s lying under oath was a sufficient reason to deny him the acceptance reduction. The cases cited by defendant were distinguishable. U.S. v. Utecht, 238 F.3d 882 (7th Cir. 2001).

 

7th Circuit denies acceptance reduction to defendant who obstructed justice by threat­ening witness. (492) Because the district court found that defendant obstructed justice by threatening a government witness, the district court also found that defendant did not accept responsibility. Absent extraordinary circum­stances, once a court finds that the defendant obstructed justice, the court should also deny the defendant a reduction for acceptance of responsibility. The Seventh Circuit found no extra­ordinary circumstances existed here. Defen­dant claimed only that he demonstrated acceptance of responsibility by pleading guilty. However, after entering that plea and awaiting sentence, he threatened a government witness. Defendant’s threat of the witness belied any sense of remorse that should be attendant to an acceptance of responsibility. U.S. v. Johnson, 227 F.3d 807 (7th Cir. 2000).

 

7th Circuit rejects acceptance reduction for attempting plea withdrawal and perjury. (492) After learning that he faced a guideline range of 100-125 months, defendant sought to withdraw his guilty plea, claiming he believed he faced a maximum sentence of 60 months. He also tendered an affidavit from his brother in which the brother claimed to own some crack that was included in defendant’s relevant conduct. Defendant claimed that he lied at his plea hearing when he admitted, under oath, that he owned the disputed crack, and lied when he swore that he knew that he faced a sentence of 60-480 months’ imprisonment. The Seventh Circuit termed “feeble” defendant’s claim that he was entitled to a three-level acceptance of responsibility reduction. Defendant attempted to withdraw his plea, con­fessed to perjury in open court, procured a false affidavit from his brother, and thus demonstrated a serious risk of recidivism. Defendant’s proclaimed willingness to commit perjury in order to reduce his punishment was the “antith­esis of acceptance of responsibility.” U.S. v. Stewart, 198 F.3d 984 (7th Cir. 1999).

 

7th Circuit says defendant who committed perjury did not accept responsibility. (492) The district court found that defendant committed perjury when he testified that he distributed powder, rather than crack, cocaine. Defendant argued that he accepted responsibility even though he obstructed justice. The Seventh Circuit disagreed. The entry of a guilty plea does not automatically confer a right to a reduction for acceptance of responsibility. See note 3 to USSG § 3E1.1. Though rare, it is not impossible for a defendant who obstructed justice to also have accepted responsibility. However, defendant’s was not an exception­al case. Defendant was untruthful and evasive about what he distributed and about the extent of his relevant conduct. That was enough to warrant denying the acceptance reduction. U.S. v. Branch, 195 F.3d 928 (7th Cir. 1999).

 

7th Circuit denies acceptance credit for refusing to disclose location of stolen money. (492) Defendant pled guilty to armed robbery without a plea agreement and did not otherwise deny his culpability or plead extenuating circumstances. However, he could only account for $30,000 of the $700,000 that he stole, and refused to disclose the location of the remaining money. The Seventh Circuit held that defendant’s refusal to disclose the location of the stolen money was grounds for denying him an acceptance of responsibility reduc­tion. Acceptance of responsibility can be inferred from deeds, not from words. A guilty plea is a deed, but so is voluntary restitution. The refusal to make restitu­tion, where it is feasible, demonstrates a desire to retain the fruits of the crimes, and prevents an inference of remorse or repentance. U.S. v. Wells, 154 F.3d 412 (7th Cir. 1998).

 

7th Circuit rejects § 3E1.1 reduction where defendant claimed crime did not happen. (492) Defendant was convicted of being a felon in possession of a firearm after he threatened a man with a gun. During a suppression hearing, he falsely testified that he had never seen the victim or pointed a weapon at him. He also falsely told the district court that one of the two arresting officers told the other that defendant was not the one they were looking for because his gun was not recently fired. The Seventh Circuit held that these facts showed defendant did not merit a § 3E1.1 reduction. Instead of accepting responsibility, defendant’s defense was that the crime did not happen and that there was no evidence to show that he possessed a firearm. U.S. v. Arellano, 137 F.3d 982 (7th Cir. 1998).

 

7th Circuit says 9 months of law-abiding conduct did not justify acceptance credit after obstruction. (492) Defendant, a federal prisoner, pled guilty to a scheme to smuggle drugs into the prison. He received an obstruction of justice enhancement under §3C1.1 based on a threatening message he sent to a witness and his efforts to get two others to sign false statements. The district court rejected his request for a §3E1.1 acceptance of responsibility reduction. The Seventh Circuit agreed that there were no extraordinary circum­stances warranting an acceptance of responsibility reduction despite the obstruction enhance­ment. The only supposedly exceptional circum­stance was that defendant did not commit any additional crimes during the 9-month period between release from his old term of imprison­ment and his incarceration for smuggling meth­am­phetamine. However, defen­dant was a career offender who posed a substantial risk of recidivism, and the judge could rationally conclude that he should not receive a benefit designed for offenders with a low probability of committing new crimes. U.S. v. Keeter, 130 F.3d 297 (7th Cir. 1997).

 

7th Circuit rejects credit where defendant only pled guilty after learning co-defendant would not perjure herself for him. (492) Defendant and two women stole credit cards and used them throughout several states. He received an obstruction of justice enhancement based on his attempt to get one of the women to lie about his knowledge of the crimes. None­theless, he contended that he accepted responsibility through his timely guilty plea and allocution. The Seventh Circuit held that defendant’s last minute guilty plea did not show acceptance of responsibility. In his allocution, defendant tried to convince the court that he engaged in the crimes only to earn enough money to enable him to return home to visit his sick father and that he regretted his actions. However, defendant did not plead guilty until he learned that his co-defendant would exercise her 5th Amendment right if defendant called her as a witness. The court only learned of defendant’s sick father and his remorse on the day after his guilty plea. If was reasonable to infer that defendant’s guilty plea and remorse were simply a means of reducing his sentence once he learned his co-defendant would not aid in his deception. U.S. v. Ewing, 129 F.3d 430 (7th Cir. 1997).

 

7th Circuit denies § 3E1.1 reduction where defendant’s trial testimony contradicted her grand jury testimony. (492) Defendant argued that her guilty plea entitled her to an acceptance of responsibility reduction. The Seventh Circuit disagreed because defendant committed a new crime in the judge’s presence—she contradicted her grand jury testimony. The jury obviously thought her testimony in court was perjury, which is inconsistent with acceptance of responsibility. Even if her testimony at trial was true, she still committed a new crime, since 18 U.S.C. § 1623(c) makes it a felony to give inconsistent declarations under oath. Hunn. U.S. v. Bomski, 125 F.3d 1115 (7th Cir. 1997).

 

7th Circuit denies § 3E1.1 reduction for obstructing justice and frivolously denying relevant conduct. (492) Defendant sold fraudulent second mortgage promissory notes through the mails. He challenged the district court’s refusal to reduce his offense level under § 3E1.1 for acceptance of responsibility. The Seventh Circuit found the refusal proper, because defendant had received an obstruction of justice enhancement. This was not an extraordinary case in which a defendant both obstructed justice and accepted responsibility. Defendant also frivolously contested his relevant conduct. He denied that he obstructed the prosecution of this case or that his conduct violated a state consent decree. Moreover, even after pleading guilty, defendant attempted to convince his landlord to invest in a “second mortgage acceleration program.” U.S. v. Burke, 125 F.3d 401 (7th Cir. 1997).

 

7th Circuit rejects challenge to obstruction increase even though defendant received § 3E1.1 reduction. (492) Defendant argued that the district court erred by imposing a  3C1.1 obstruction of justice enhancement when at the same time it gave him an acceptance of responsibility reduction under § 3E1.1. The Seventh Circuit held that the acceptance of responsibility reduction did not give defendant grounds for challenging the obstruction enhancement. The extraordinary case is the one in which, having obstructed justice, the defendant still qualified for the acceptance of responsibility reduction. If there were a problem here, it would be with defendant’s receiving an acceptance of responsibility reduction notwith­standing his obstruction of justice. The potentially aggrieved party was the government and not defendant. U.S. v. Shelby, 121 F.3d 1118 (7th Cir. 1997).

 

7th Circuit says case did not warrant obstruc­tion increase and acceptance reduction. (492) Defendant argued that he should have received a two level acceptance of responsibility reduction. He conceded in his plea agreement that his pre-arrest conduct in refusing to appear before a grand jury warranted an obstruction enhance­ment. However, the government, at the time it entered into the plea agreement, agreed that defendant had accepted responsibility by pleading guilty and agreeing to forfeit his assets. However, after the plea agree­ment, the government discovered that defendant provided the probation department with a false social security number to conceal that he had been improperly receiving disability income during var­ious periods of incarceration. The Seventh Circuit held that defendant did not prove that his was an “extraordinary” case warranting a decrease for accep­t­ance of responsibility in spite of his obstruc­tion of justice. A defendant’s failure to be truthful to a probation officer is grounds for denying the § 3E1.1 reduction. U.S. v. Monem, 104 F.3d 905 (7th Cir. 1997).

 

7th Circuit upholds obstruction en­hancement for perjury at suppres­sion hearing. (492) Defendant was stopped at the airport carrying 686 grams of heroin. The heroin was found in defendant’s coat pocket during a pat down search. Defendant unsuccess­fully sought to suppress the heroin by falsely claiming she did not consent to the search. The Seventh Circuit af­firmed an obstruction of justice en­hancement and denied an acceptance of responsibility reduction based on her perjury at the suppression hearing. Defendant testified that she explicitly told the DEA agents that she did not consent to the pat down, while the two agents both testified that she did. The district judge found the officers’ testi­mony credible. Defendant did not ac­cept responsibility even though she admitted the offense. She maintained throughout the proceedings that she had refused to consent to the search. Admitting guilt, but vigorously con­testing the testimony of federal officers to suppress evidence, is not an ex­traordinary situation that warrants an acceptance of responsibility reduction despite an obstruction enhancement. U.S. v. Yusuff, 96 F.3d 982 (7th Cir. 1996).

 

7th Circuit upholds § 3C1.1 enhancement and denies § 3E1.1 reduction for threatening wit­nesses. (492) The district court applied an obstruction of justice enhancement and denied defendant an acceptance of responsibility re­duc­tion based on evidence that defendant had threatened two witnesses during the investi­gation and prose­cu­tion of the case. A defendant who has both gone to trial and obstructed justice must overcome a strong presumption to convince a court he is entitled to an acceptance of responsibility reduc­tion. U.S. v. Thomas, 86 F.3d 647 (7th Cir. 1996).

 

7th Circuit rejects obstruction enhancement for perjury at trial of co‑defendant. (492) Defendant argued that he accepted responsi­bility by pleading guilty and testifying at his son’s trial. The district court imposed an obstruction of justice enhancement based on defendant’s perjur­ious testimony at the son’s trial. The Seventh Circuit held that the obstruction enhancement could not be applied to defendant because his perjury occurred at the trial of a co‑defendant. The obstruction must occur during the instant offense, which means the offense of which the defendant was convicted. However, the district court properly denied defendant the § 3E1.1 reduction. Accep­tance of responsibility at a minimum requires avoid­ing falsehoods. U.S. v. Strang, 80 F.3d 1214 (7th Cir. 1996).

 

7th Circuit denies acceptance of responsibility reduction to defendant who committed perjury. (492) Defendant, a grand jury member, communicated secret information to a friend who was under grand jury investigation. The district court found that defendant had perjured himself at trial by testifying that he had not provided his friend with information before December 1993. The Seventh Circuit upheld the denial of an acceptance of responsibility reduction. Where perjury has been committed, only extraordinary circumstances will entitle the defendant to a reduction for acceptance of responsibility. U.S. v. Girardi, 62 F.3d 943 (7th Cir. 1995).

 

7th Circuit denies reduction to defendant who did not admit crime until after conviction. (490) The Seventh Circuit upheld the denial of an acceptance of responsibility reduction to a defendant who did not acknowledge his crime until after he was convicted. Except in rare cases, a plea of guilty is a necessary, if not a sufficient, condition for acceptance of responsibility. This was not such a rare case. U.S. v. Curley, 55 F.3d 254 (7th Cir. 1995).

 

7th Circuit denies acceptance credit to defendant who went to trial and obstructed justice. (492) The district court denied defendant an acceptance of responsibility reduction because he chose to go to trial rather than plead guilty, he violated the conditions of his pretrial release, and he obstructed justice. Defendant argued that his acquittal on one count vindicated his decision to go to trial, and his defense on the other count was a technical legal issue. He also noted that his obstructive conduct occurred long before he was indicted. The 7th Circuit upheld the denial of the reduction. A defendant who has both gone to trial and obstructed justice must overcome a strong presumption to convince a court that he has accepted responsibility. Defendant’s violations of the conditions of his pre-trial release evidenced a lack of acceptance of responsibility. U.S. v. Curtis, 37 F.3d 301 (7th Cir. 1994).

 

7th Circuit rejects obstruction enhancement for refusing to testify at co-conspirator’s trial. (492) The district court imposed an obstruction of justice enhancement under § 3C1.1 based on defendant’s refusal to testify under a grant of immunity at a co-conspirator’s trial. The 7th Circuit held that a defendant cannot receive an enhancement for obstruction of justice for refusing to testify at a co-conspirator’s trial. The obstructive conduct must relate to the “instant offense,” which is narrowly defined in the 7th Circuit to mean the offense of conviction. Offense of conviction does not refer to a separate crime by someone else. Because the obstruction enhancement was improper, defendant could not be denied a reduction for acceptance of responsibility based on the enhancement. However, on remand, the court could consider whether violating a court order to testify under a grant of immunity supported denial of the acceptance of responsibility reduction. U.S. v. Partee, 31 F.3d 529 (7th Cir. 1994).

 

7th Circuit rejects acceptance reduction and upholds obstruction enhancement based on entrapment claim. (492) Defen­dant claimed that he sold drugs to police be­cause he was “entrapped by his love” for his girlfriend, who cooperated with the police in organizing the sale.  Finding this testimony “untruthful” and “utterly incredible,” the dis­trict court enhanced defendant’s sentence for obstruction of justice and denied him a downward adjustment for acceptance of re­sponsibility.  The 7th Circuit affirmed, re­jecting defendant’s argument that raising an affirmative defense showed that he accepted responsibility. U.S. v. Emenogha, 1 F.3d 473 (7th Cir. 1993).

 

7th Circuit finds no plain error in district court’s use of wrong version of 3E1.1. (492) At sen­tencing, the district court quoted from an application note to 3E1.1 stating a per se rule against a down­ward adjustment for acceptance of responsibility where defen­dant has obstructed justice.  A later ver­sion, which holds open the possibility of the adjust­ment in an “extraordinary” case, should have been applied, but the defendant failed to ob­ject.  The 7th Circuit found defendant’s gen­eral objection to the failure to grant the ad­justment was inadequate, and that there was no plain error.  Defendant made no showing of how his case could count as “extraordinary,” so the district court’s mis­take did not lead to “an actual miscarriage of justice.”   U.S. v. Rivero, 993 F.2d 620 (7th Cir. 1993).

 

7th Circuit affirms denial of reduction to defen­dant who perjured herself. (492) De­fendant con­tended that she was entitled to a reduction for accep­tance of responsibility since she had presented an af­firmative de­fense to her crime.  The 7th Circuit af­firmed the denial of the reduction, since defendant had obstructed justice by perjuring herself in an at­tempt to avoid responsibility for her ac­tions.  This was wholly inconsistent with an acceptance of re­sponsibility reduction. U.S. v. Jones, 983 F.2d 1425 (7th Cir. 1993).

 

7th Circuit affirms denial of reduction to defen­dant who threatened witness. (492) The 7th Circuit affirmed the de­nial of a re­duction for acceptance of re­sponsibility to a defendant who received an en­hancement for ob­struction of jus­tice for threatening to re­taliate against his girlfriend for cooperating with au­thorities.  This was not an extraordi­nary case where an acceptance of responsi­bility reduction was appropriate despite the obstruction enhancement.  Threat­ening a co-defen­dant because of her coopera­tion with the government is not consistent with a find­ing that a defen­dant has accepted personal re­sponsibility for his crime.  Moreover, de­spite having received a managerial role en­hancement, defendant refused to acknowl­edge his leadership role in the criminal activ­ity. U.S. v. Woods, 976 F.2d 1096 (7th Cir. 1992).

 

7th Circuit upholds denial of acceptance of re­sponsibility reduction where defen­dant lied at trial. (492) Defendant con­tended that he accepted re­sponsibility for his acts by voluntarily terminating his criminal conduct after striking his victim, voluntarily surrendering to an FBI agent for questioning, admit­ting his involvement in the incident, and expressing remorse at the sentencing hearing.  The 7th Circuit affirmed the denial of the re­duction, since the district court found that defendant’s lies to the jury at trial outweighed the merit of these factors.  Application note 4 to guideline section 3E1.1 supported this de­termination.  This was not an extraordinary case in which adjustments for ob­struction of justice and ac­ceptance of responsibility were applicable. U.S. v. Corn, 956 F.2d 135 (7th Cir. 1992).

 

7th Circuit denies acceptance of responsi­bility reduc­tion based on perjury and ob­struction of jus­tice. (492) The dis­trict court denied defendant a reduc­tion for accep­tance of responsibility because defendant testified falsely at the trial of co-conspirators and had threatened or intimi­dated wit­nesses in an at­tempt to in­fluence their testimony.  The 7th Circuit affirmed, finding that the district court’s written order thoroughly supported the finding that defen­dant’s testimony was in­consistent and untruthful regarding the amount of co­caine with which he was person­ally in­volved.  Moreover, his obstruction of justice indicated that he did not de­serve an ac­ceptance of responsibility reduc­tion.  U.S. v. Cooper, 942 F.2d 1200 (7th Cir. 1991).

 

7th Circuit upholds obstruction enhancement based on de­fendant’s false testimony. (492) The 7th Circuit up­held the district court’s deci­sion to enhance defendant’s sentence for ob­struction of justice based upon his false testi­mony.  Defendant testified that he lost all contact with a drug seller by mid-October.  However, a tape recording from November 3 showed that defendant gave an informant di­rections as to where to meet the seller.  The finding of ob­struction of jus­tice was not clearly er­roneous, and therefore the district court acted within its discretion in deny­ing defendant a re­duction for accep­tance of responsibility.  U.S. v. Feekes, 929 F.2d 334 (7th Cir. 1991).

 

7th Circuit finds defendant who obstructed justice did not accept responsibility. (492) The 7th Circuit rejected defen­dant’s claim that her guilty plea and alleged expres­sions of sincere remorse entitled her to a sentence re­duction for ac­ceptance of responsibility.  Although de­fendant had sent a letter to the court apolo­gizing for her actions, this was insuf­ficient to support her claim of ac­ceptance of responsibil­ity.  Defendant had received a sentence en­hancement for ob­struction of justice, and the application notes to guideline § 3E1.1 in effect at the time defendant was sentenced precluded a reduction for acceptance of re­sponsibility when that sentence had already been enhanced because of ob­struction of jus­tice.  U.S. v. Ojo, 916 F.2d 388 (7th Cir. 1990).

 

7th Circuit upholds denial of acceptance of responsi­bility ad­just­ment for defendant who obstructed justice. (492) The 7th Circuit held that defendant, who pled guilty only after being confronted with evidence of his perjury, was not entitled to a downward adjustment for ac­ceptance of respon­sibility.  Defendant’s sen­tence had been adjusted upward for obstruc­tion of justice, and the court noted that under the guidelines, an enhancement for obstruction of justice “ordi­nar­ily indicates that de­fendant has not accepted respon­sibility for his criminal conduct.”  U.S. v. Leuddeke, 908 F.2d 230 (7th Cir. 1990).

 

7th Circuit holds that obstruction of justice precludes credit for acceptance of responsi­bility. (492) The de­fendant gave two false names during questioning.  The trial court specifically found this to be an obstruction of justice within the meaning of § 3C1.1, and the de­fendant did not challenge this find­ing on appeal.  The 7th Circuit noted that un­der application note 4 of § 3E1.1, a re­duction for acceptance of responsibility “is not warranted where a de­fendant . . . obstructs the trial or administration of justice.”  Thus the court held that de­fendant could not receive a re­duction for acceptance of responsibility and therefore had no standing to challenge the con­stitutionality of that section of the guidelines.  U.S. v. McNeal, 900 F.2d 119 (7th Cir. 1990).

 

7th Circuit holds that prior to amendment, obstruction precluded credit for acceptance of responsibility. (492) The district court gave the defendant credit for accep­tance of re­sponsibility even though he obstructed justice.  The 7th Cir­cuit reversed noting that prior to the recent amendment to application note 4 of § 3E1.1, a finding of obstruc­tion of jus­tice under § 3C1.1 pre­vented a reduction for ac­ceptance of responsibility.  The new amendment states “the purpose of this amendment [is] to provide for extraordi­nary cases in which adjust­ments under both § 3C1.1 and § 3E1.1 are appropriate.”  The 7th Circuit held that “this language indicates that prior to the amendment, the guidelines did not provide for extraordinary cases for mu­tual adjust­ments where acceptance of respon­si­bil­ity and obstruc­tion of justice were appropriate.”  U.S. v. Reynolds, 900 F.2d 1000 (7th Cir. 1990).

 

8th Circuit upholds obstruction increase and denial of acceptance reduction based on post-plea threats to potential witness. (492) Defendant pled guilty to multiple counts of sending and mailing threatening communications to an FBI agent. After pleading guilty, defendant continued to write letters to the agent and his wife, and other law enforcement officers. The Eighth Circuit upheld a § 3C1.1 obstruction of justice increase based on the letters defendant sent to the FBI agent. The agent’s knowledge of defendant’s conduct made him a likely wit­ness in future proceedings affecting defendant. Threats made against a potential witness could reasonably be concluded as intended to obstruct or impede the adminis­tration of justice. The panel also held that the district court did not err in denying defendant a reduction for acceptance of responsibility. Defendant’s post-plea con­duct, including mailing threatening letters to the FBI agent, did not reflect acceptance of responsibility. U.S. v. Hutterer, 706 F.3d 921 (8th Cir. 2013).

 

8th Circuit denies acceptance credit where defen­dant’s obstruction was “significant.” (492) Defendant embezzled money from her employer’s checking account by forging checks and making unauthorized electronic transfers. She received an enhancement for obstruction of justice, but nonetheless argued that she should have received an acceptance of responsibility reduction. The Eighth Circuit found that this was not one of those extraordinary cases where a defendant who receives an obstruction increase also deserves an acceptance reduction. While defendant pleaded guilty, accepted responsibil­ity, and showed remorse for her actions, her obstruction was significant. She provided false docu­ments and statements to investigators and to her em­ployer early in the investigation. More­over, she again lied to investigators in March 2009, nearly two years after first submitting the false documents and statements. Based on the record, the panel ruled that district court did not clearly err by denying defendant the acceptance of responsi­bility adjustment. U.S. v. Godsey, 690 F.3d 906 (8th Cir. 2012).

 

8th Circuit approves obstruction increase and denies acceptance reduction for perjury at trial. (492) Defendant contended that the district court erred in apply­ing a two-level increase for obstruction of justice, based on its finding that defendant intentionally gave false testimony about the quantity of drugs in the con­spiracy and his knowledge of co-conspirator Burridge. The Eighth Circuit found no error. Lying to obtain a lighter sentence is obstruction of justice under § 3C1.1, and the district court’s finding that defendant lied must be accepted unless clearly erroneous. As for the denial of credit for accept­ance of responsibility, this was not an extra­ordinary case where a defendant who obstructed justice may also receive an adjustment for acceptance of responsibility. U.S. v. Walker, 688 F.3d 416 (8th Cir. 2012).

 

8th Circuit denies acceptance reduction where defen­dant falsely denied relevant conduct and there is no evidence of claimed coercion. (492) 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 rejects acceptance reduction for defen­dant who committed perjury. (492) Defen­­dant was denied a reduction for acceptance of responsibility and received an obstruction of justice enhancement based on his perjury at trial. On appeal, defendant did not challenge the obstruction enhancement, but argued that he showed “extraordinary circumstances” that made him eligible for an acceptance reduction, despite his obstruc­tion enhancement. See Note 4 to § 3E1.1. The Eighth Circuit found nothing excep­tional in this case that would compel a finding of acceptance of responsibility despite defendant’s perjury. The court found that defen­dant’s repeated false statements at a crucial point in the case were “all direct repudiations of his own guilt.” The perjured testimony went to the heart of accep­tance of responsibility, and the court did not clearly err in finding that defendant did not clearly demonstrate his willingness to take responsibility for his criminal conduct. U.S. v. Bossany 678 F.3d 603 (8th Cir. 2012).

 

8th Circuit rejects acceptance reduction where defen­dant tried to have informant killed. (492) Defendant pled guilty to distributing metham­phet­­a­­mine, and re­ceived an obstruction of justice increase based on a series of text messages he sent to an undercover agent, seeking to have an informant killed. The Eighth Circuit ruled that this was not an extra­ordinary case in which a defendant who obstructed justice also deserved a reduction for acceptance of responsibility. The district court might reason­ably have decided that this was not an isolated incident because defen­dant participated in a series of telephone and text messages with the undercover agent over a two-month period. Further, defendant consistently denied that he intended to obstruct justice or that he took a substantial step toward accomplishing that objective. Finally, defendant did not voluntarily abandon his plans or try to dissuade the agent from harming the informant. U.S. v. Smith, 665 F.3d 951 (8th Cir. 2011).

 

8th Circuit denies acceptance reduction for defendant who pled guilty but also obstructed justice. (492) The district court found that defen­dant did not meet his burden of proving that he accepted responsibility. Although he pled guilty, he presented no evidence that he assisted in the criminal investigation and did not admit his obstructive conduct. The court thus found that defendant did not present the extraordinary case in which a defendant may qualify for a reduction while at the same time being subject to an obstruc­­tion of justice increase. The court also found a second reason to deny the reduction—in his plea agreement, defendant stipul­ated to the upward adjustment for use of a minor, but then at sentencing argued that it should not apply. The Eighth Circuit agreed that defendant’s circum­stances did not present an “extraordinary case” warranting a reduc­tion for acceptance of respon­si­bil­ity despite an increase for obstruction of justice. U.S. v. Jones, 612 F.3d 1040 (8th Cir. 2010).

 

8th Circuit holds that case was not extra­ordinary to warrant acceptance reduction and obstruction increase. (492) Two weeks after being placed on pretrial release pending sentenc­ing, two men approached defendant at work and told him to pay for the drugs the DEA had seized. Feeling threatened, defendant fled to California without informing authorities or his family where he had gone, and failed to appear at sentencing. He was apprehended in California seven months later. Despite the fact that he received an obstruction of justice increase, he argued that he also deserved an acceptance of responsibility reduction. Applying a “totality of the circum­stances” analysis, the Eighth Circuit found that defendant’s case was not sufficiently extra­ordinary to warrant both adjustments. Defendant failed to take any affirmative actions to confirm his acceptance of responsi­bility after he fled the state. He merely provided an excuse for his flight and failure to appear for his sentencing hearing. Although the court found credible defendant’s claim of fear for his safety, it reasonably concluded that defendant willfully chose the course of conduct that obstructed justice instead of choosing other options, such as contacting authorities about the threat. U.S. v. Muro, 357 F.3d 743 (8th Cir. 2004).

 

8th Circuit says defendant who gave police false ID twice after absconding did not merit acceptance reduction. (492) Defendant argued that he despite his obstruction of justice (he absconded a month before trial), he presented an extraordinary case meriting an acceptance of responsibility reduction. The Eighth Circuit disagreed, noting that defendant’s obstruction was ongoing; he did not voluntarily turn himself in; he used his brother’s identification on two occasions to avoid arrest; and he did not clearly accept responsibility for, or recant, his obstructive conduct. In addition, defendant did not plead guilty to the charged crime until four days before trial, thus making it an “eleventh-hour jailhouse conversion” before which the prosecution had to begin preparing for trial. U.S. v. Nguyen, 339 F.3d 688 (8th Cir. 2003).

 

8th Circuit holds that guilty plea and cessation of obstructive conduct was insufficient for acceptance reduction. (492) Defendant attempt­ed to have the indictment dismissed on the ground that he was juvenile at the time of the offense. The district court denied the motion, rejecting his sister’s testimony that defendant was only 17. The district court applied an obstruction increase based on defendant’s suborning the perjury of his sister. He argued that he deserved an acceptance of responsibility reduction because he pled guilty and, after his motion to dismiss was denied, ceased his obstructive conduct. The Eighth Circuit disagreed, ruling that defendant’ guilty plea and cessation of obstructive conduct was insufficient to make this an extraordinary case under Note 4 to U.S.S.G. § 3E1.1. U.S. v. Calderon-Avila, 322 F.3d 505 (8th Cir. 2003).

 

8th Circuit applies obstruction increase for failure to appear at plea and sentencing hearing. (492) Defendant argued that his failure to appear at his plea and sentencing hearing did not warrant an obstruction of justice increase. The Eighth Circuit disagreed. The commentary to § 3C1.1 notes that “escaping or attempting to escape from custody before trial or sentencing, or willfully failing to appear, as ordered, for a judicial proceeding,” is enough to bring a defendant within § 3C1.1’s ambit. Defendant willfully fled the jurisdiction before his plea and sentencing hearing. He remained at large for some five months and was only apprehended after he was identified during a routine traffic stop. The district court did not err in applying the § 3C1.1 adjustment. Moreover, defendant was not entitled to an acceptance of responsibility reduction. In an “extra­ordinary case,” a defendant might receive an obstruction of justice enhancement and an acceptance of responsibility decrease. Defendant gave no reason for treating his case as extraordinary. U.S. v. Young, 315 F.3d 911 (8th Cir. 2003).

 

8th Circuit says guilty plea did not entitle defendant who repeatedly escaped to acceptance reduction. (492) At sentencing, the district court refused to grant defendant an acceptance of responsibility reduction because his attempts to escape from custody resulted in an enhance­ment for obstruction of justice. Defendant nonetheless argued that his case was an extraordinary one where both adjustments applied because he pled guilty despite the lack of a plea agreement, and therefore received the same sentence he would have received had he proceeded to trial. The Eighth Circuit held that defendant’s conduct precluded the court from granting the reduction. He escaped from custody six days after he pled guilty. He then stole a truck and used it in his escape to avoid recapture. U.S. v. Allee, 282 F.3d 997 (8th Cir. 2002).

 

8th Circuit affirms denial of acceptance increase to defendant who obstructed justice. (492) Defendant received an obstruction of justice enhancement for encouraging witnesses to lie about their knowledge of his criminal conduct. An obstruction enhancement “ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct.” Note 4 to USSG § 3E1.1. While there may be “extraordinary cases” in which both adjustments might be proper, a case in which a reduction for acceptance of responsibility is warranted in spite of a defendant’s obstructive conduct will be extremely rare. The Eighth Circuit found no clear error in the denial of defendant’s request for a § 3E1.1 The district court properly considered all of the relevant circumstances and was not precluded from determining that the nature of defendant’s obstructive conduct outweighed other factors in his favor. U.S. v. Perez, 270 F.3d 737 (8th Cir. 2001).

 

8th Circuit holds that presentence misbe­havior justified obstruction increase and no acceptance reduction. (492) Although defen­dant was cooperative through­out his interview process with the probation departure, he subsequently failed alcohol and drug tests while under court-ordered supervision at a halfway house, absconded from the halfway house prior to a bond-revocation hearing, and failed to appear for the hearing. In light of this presentencing misbehavior, the Eighth Circuit found no error in the district court’s denial of an acceptance of responsibility reduction and the imposition of an obstruc­tion of justice enhancement. U.S. v. Martinez, 234 F.3d 1047 (8th Cir. 2000).

 

8th Circuit finds court applied wrong standard for acceptance reduction where obstruction also present. (492) The district court applied an obstruction of justice because defendant: (1) caused the disappearance of one or more prospec­tive witnesses; (2) attempted to kill witnesses while on pre-trial release; (3) attempted to kill another cooperating witness; (4) attempted to escape from county jail during his pretrial detention; and (5) procured another person to conceal material evidence. The court also granted defendant an acceptance of responsibility reduc­tion, finding that a defen­dant who has obstructed justice can receive the acceptance reduction if he pleads guilty to the offense with which he is charged and does not commit any further obstruction. The Eighth Circuit held that the district court adopted an incorrect legal standard for determining the presence of an “extraordinary case” in which a defendant who has obstructed justice may also receive the acceptance reduction. A court should consider the totality of the circum­stances, including the nature of the obstructive conduct and the degree of acceptance of responsibility, whether the obstruction was an isolated incident or part of an ongoing effort to obstruct the prosecution, whether defendant voluntarily terminated his obstructive conduct, and whether he assisted in the prosecution of others. U.S. v. Honken, 184 F.3d 961 (8th Cir. 1999).

 

8th Circuit rejects acceptance reduction where defendant lied about others’ involve­ment. (492) Defendant contended that he was entitled to an acceptance of responsibility reduction because prior to trial he admitted his involvement in several drug sales to an undercover agent. However, he also received an obstruction of justice enhancement because he falsely testified at trial that two co-defendants were not involved in the drug sales. The district court found that a two-level reduction for acceptance of responsibility was inconsistent with an obstruction of justice enhancement. The Eighth Circuit agreed that there were no extra­ordinary circum­stances in defendant’s case that would warrant an acceptance of responsi­bility reduction despite the obstruc­tion of justice enhancement. U.S. v. Molina, 172 F.3d 1048 (8th Cir. 1999).

 

8th Circuit denies § 3E1.1 reduction and affirms obstruction enhancement based on trial testimony. (492) Defendant was convicted of a heroin and methamphetamine conspiracy. A co-defendant testified that defendant was his sole source for heroin and his primary source for methamphetamine. There was evidence that defendant was in charge of at least four houses where people could order heroin by telephone. However, defendant testified that he worked for the co-defendant. He denied shipping and packaging drugs and denied selling metham­phetamine to the co-defendant. The Eighth Circuit upheld the denial of an acceptance of responsibility reduction and affirmed an obstruction of justice enhancement based on defendant’s trial testimony. The district court could properly credit the co-defendant’s testi­mony and discount defendant’s testimony. U.S. v. Rodriguez, 112 F.3d 374 (8th Cir. 1997).

 

8th Circuit approves multiple enhancements. (492) Defendant started a business that purported to provide services to persons seeking commercial financing. She used false documen­tation and oral misrepresentations to persuade five individuals to wire her a total of $320,000 for investment purposes. The investors never saw their money again, although they sometimes received communications from an associate of defendant’s regarding the status of their investments. At trial, defendant denied making the representations described by the government’s witnesses. She portrayed her role as that of an intermediary between her associate and the investors. She maintained that she had always believed her representations were truthful. The Eighth Circuit upheld enhancements under §2F1.1(b)(2) for a scheme to defraud more than one victim, § 3B1.1(c) for being the organizer or leader of a criminal conspiracy, and § 3C1.1 for obstructing justice by perjuring herself at trial, and denied an acceptance of responsibility reduction. The court’s factual findings were supported by the evidence. U.S. v. Wonderly, 70 F.3d 1020 (8th Cir. 1995).

 

8th Circuit denies reduction where defendant lied at suppression hearing. (492) Defendant claimed he deserved an acceptance of responsibility reduction because he truthfully admitted his conduct, voluntarily assisted authorities in locating the weapon used in his bank robbery, and pled guilty. The 8th Circuit upheld the denial of the reduction. The district court said defendant’s acceptance of responsibility was “halfhearted.” Moreover, the reduction was inconsistent with defendant’s perjury at a suppression hearing, which became the basis for an obstruction of justice enhancement. U.S. v. Gleason, 25 F.3d 605 (8th Cir. 1994).

 

8th Circuit denies acceptance credit where defen­dant lied at trial about firearm pos­session. (492) Defendant was convicted of being felon in possession of a firearm.  The 8th Circuit affirmed the denial of a reduction for acceptance of responsibility, since de­fendant did not admit the firearm possession until af­ter he was convicted.  At trial, he falsely testified that he did not possess a firearm on the night in question. U.S. v. Franik, 7 F.3d 811 (8th Cir. 1993).

 

8th Circuit notes defendant’s failure to as­sist in search. (492) The district court de­nied defen­dant an adjustment for acceptance of responsi­bility in part because the defen­dant did not voluntar­ily dis­close the location of all the counterfeit currency in his home when police executed a search warrant.  The 8th Circuit approved consideration of this factor.  The district court also based its deci­sion on the de­fendant’s efforts to obstruct justice and defendant’s failure to be “completely truthful” regarding his in­volvement in the crime. U.S. v. Armstrong, 992 F.2d 171 (8th Cir. 1993).

 

8th Circuit affirms obstruction enhance­ment where there were conflicts in testi­mony. (492) The dis­trict court imposed an enhance­ment for obstruction of justice and denied a reduc­tion for acceptance of respon­sibility after concluding that conflicts between the testimony of defendant and other wit­nesses con­cerning the creation of false doc­uments were the re­sult of purposeful decep­tion by defendant.  The 8th Circuit affirmed.  Perjury is grounds for an obstruc­tion of jus­tice enhancement.  The denial of the accep­tance of responsibility reduc­tion was not without foundation.  U.S. v. Marx, 991 F.2d 1369 (8th Cir. 1993).

 

8th Circuit orders reconsideration of ac­ceptance credit after obstruction en­hancement reversed. (492) The district court’s written findings stated that a reduc­tion for accep­tance of responsibility was de­nied because defendant had exhibited only “half-hearted acceptance.”  How­ever, at the sentencing hearing, the court also stated that this was not an extraordinary case where both an obstruction of justice enhancement and an accep­tance of responsibility reduction could be given.  Since the obstruction of jus­tice enhancement was re­versed, the 8th Cir­cuit directed that the acceptance of responsi­bility reduction be reconsidered upon resen­tencing.  U.S. v. Cox, 985 F.2d 427 (8th Cir. 1993).

 

8th Circuit upholds obstruction enhance­ment and denies acceptance of responsi­bility for flight and use of an alias. (492) Defendant contended that an en­hancement for obstruction of justice was improperly im­posed upon him for merely avoiding or fleeing ar­rest, as discussed in application note 4(d) to guide­line sec­tion 3C1.1.  The 8th Circuit upheld the en­hancement, ruling that defen­dant did more than sim­ply avoid or flee ar­rest.  Defendant left the jurisdic­tion and re­mained a fugitive for about a year.  During that time he used a driver’s license he had stolen from his brother and ob­tained work under his brother’s name.  He also violated the conditions of his probation imposed by the State of Missouri.  At his sentencing hearing, he agreed that his goal had been to remain as far away as possible so that he would not be involved in the proceedings in any way or forced to cooperate or testify against his co-defen­dants.  The 8th Circuit also affirmed that defendant’s year-long fugi­tive status supported the denial of a re­duction for acceptance of responsibility.  U.S. v. Lyon, 959 F.2d 701 (8th Cir. 1992).

 

8th Circuit upholds denial of acceptance of re­sponsibility reduction where defen­dant also ob­structed justice. (492) The 8th Circuit rejected de­fendant’s claim that the district court failed to exer­cise its discretion on defendant’s request for an ac­ceptance of responsibility reduction.  Because the district court enhanced defendant’s sentence for ob­struction of jus­tice, the district court properly denied defendant a re­duction for acceptance of responsibil­ity.  U.S. v. Mor­ton, 957 F.2d 577 (8th Cir. 1992).

 

8th Circuit affirms obstruction enhancement based upon false testimony. (492) The 8th Cir­cuit affirmed the dis­trict court’s decision to en­hance defendant’s offense level for obstruction of justice based upon his false trial testimony.  The district court did not rely upon the jury’s disbelief of defendant’s testimony, but ex­pressly found that the testimony was, at least in part, false.  Moreover, the district court prop­erly denied defendant a reduction for accep­tance of respon­sibility, for this was not an ex­traordinary case in which ad­justments for both obstruction of justice and acceptance of re­sponsibility were proper.  U.S. v. Willis, 940 F.2d 1136 (8th Cir. 1991).

 

8th Circuit rejects acceptance of responsibility reduc­tion to defendant who received obstruc­tion of justice enhancement. (492) Defendant contended that he was entitled to a reduc­tion for acceptance of responsibility because he volun­tarily surrendered to authorities, acqui­esced in the forfeiture of his vehicle, cooper­ated with the probation officer, withdrew his motions to sup­press evi­dence, and entered a plea of guilty.  The 8th Circuit re­jected this ar­gument, since at the time de­fendant was sen­tenced, the guidelines provided for no re­duction for acceptance of responsibility where a defendant ob­structed jus­tice.  U.S. v. Dortch, 923 F.2d 629 (8th Cir. 1991).

 

8th Circuit affirms adjustment for obstruction and de­nial of re­duction for acceptance of re­sponsibility. (492) Defendant appealed the district court’s decision to deny him a two-level reduction for acceptance of responsi­bility and to assess him a two-level penalty for obstruc­tion of justice.  The 8th Circuit affirmed, find­ing that defendant lied on several occasions concerning the ex­tent of his past drug dealings.  This was not only a breach of his plea agree­ment, thus dis­qualifying him for an acceptance of responsibility re­duction, but was also grounds for an obstruction of justice enhance­ment.  Defendant was not punished for failing to confess the full extent of his drug involve­ment.  That would violate the 5th Amendment.  Rather, he was punished for lying, after he had voluntarily agreed in his plea agreement to re­veal all of his past drug dealings.  U.S. v. Lawrence, 918 F.2d 68 (8th Cir. 1990).

 

8th Circuit finds that defendant who lied and made “lame excuses” did not accept responsi­bility. (492) The district court found that de­fendant testified in an un­truthful manner and attempted to justify his criminal conduct with “lame ex­cuses.”  Based on this record, the 8th Circuit upheld the dis­trict court’s determina­tion that defendant was not entitled to a re­duction for acceptance of responsibility.  U.S. v. Keene, 915 F.2d 1164 (8th Cir. 1990).

 

8th Circuit finds that perjury justified en­hancement for ob­struction of justice and finding of no acceptance of respon­sibility. (492) Although defendant freely admit­ted her own involvement in a drug conspir­acy, she commit­ted per­jury by testifying that her hus­band had nothing to do with it.  The court found that this justi­fied the district court’s en­hancement for ob­struction of justice.  The perjury, which was not followed by any re­pentance or remorse, also justified the district court’s refusal to reduce defendant’s offense level for accep­tance of responsibility.  U.S. v. Dyer, 910 F.2d 530 (8th Cir. 1990).

 

8th Circuit finds no acceptance of responsi­bility for drug defendant convicted of at­tempted murder of a wit­ness. (492)  Defen­dant was convicted of conspiracy to sell drugs and an attempt to kill a government witness.  His sentence was en­hanced under 3C1.1 for the at­tempted murder.  The 8th Cir­cuit flatly rejected defen­dants argu­ment that he should re­ceive a two point re­duction for ac­ceptance of respon­sibility, citing the com­mentary to guide­line § 3E1.1 pro­hibiting adjust­ments when a defendant “otherwise ob­structs the trial or the adminis­tration of justice.”  U.S. v. Drew, 894 F.2d 965 (8th Cir. 1990).

 

8th Circuit rules acceptance of responsibility reduction is not available to one who ob­structs justice. (492) Re­lying on application note 4 to § 3E1.1, the Eighth Circuit held that the district court properly denied a drug defendant a two level reduction for acceptance of respon­sibility after it found that he had ob­structed jus­tice.  Be­cause the record supported the obstruc­tion finding, the sentence was proper.  U.S. v. Holland, 880 F.2d 1091 (8th Cir. 1989).

 

8th Circuit holds finding that defendant had lied on the stand justified denying acceptance of responsibility adjust­ment. (492)  The 8th Circuit upheld a district court’s denial of an ac­ceptance of responsibility adjust­ment because the find­ings were not clearly erroneous.  It was proper for the trial court to deny the requested ad­justment despite the fact that the defendant had offered to plead guilty and admitted the essential elements of the offense on the wit­ness stand, because it found that the defendant had testi­fied falsely under oath as to his source of cocaine.  U.S. v. Jones, 875 F.2d 674 (8th Cir. 1989).

 

9th Circuit denies acceptance credit where defendant continued to run prostitution business from prison. (492) Defendant transported two juveniles across state lines and forced them to become prostitutes. He was convicted of transporting a minor in interstate commerce with the intent that she engage in prostitution, in violation of 18 U.S.C. § 2423(a). The Ninth Circuit summarily affirmed the district court’s refusal to award an acceptance-of-responsibility adjustment, explaining that defendant “continued to try to conduct his business of prostitution from prison.” U.S. v. Carter, 266 F.3d 1089 (9th Cir. 2001).

 

9th Circuit upholds denial of credit based on initial lies and post-trial denials. (492) The presentence report recommended denial of credit for ac­ceptance of responsibility pointing to defendant’s initial lies to law enforce­ment about her involvement in ac­quiring the firearm and her post-trial denials of responsibility. On appeal, the en banc Ninth Circuit upheld the district court’s denial of credit for ac­ceptance of responsibility as not “clearly erroneous.” U.S. v. Moore, 109 F.3d 1456 (9th Cir. 1997).

 

9th Circuit denies acceptance credit where defendant denied guilt and lied. (492) Defendant did nothing prior to trial to indicate acceptance of responsibility. He denied guilt and put the government to its proof. Even after his conviction he continued to maintain that he kicked the victim only once in the stomach, despite eyewitness testimony to the contrary. He also falsely stated in his letter to the district court that he did not know the person whom he was kicking. The Ninth Circuit upheld the denial of credit for acceptance of responsibility noting that lying about offense conduct weighs heavily against a finding of acceptance of responsibility, and that the adjust­ment is usually inconsistent with an enhancement for obstruction of justice. U.S. v. Sayetsitty, 107 F.3d 1405 (9th Cir. 1997).

 

9th Circuit says lying to pretrial services officer was obstruction of justice. (492) 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 failure to appear for sentencing justified denying acceptance credit. (492) The presentence report originally recommended a three level reduction for acceptance of responsibility. However before sentencing, defendant became a fugitive. He was arrested four months later and pled guilty to failing to appear for sentencing. At sentencing on the original charge, the district court increased the offense level by two for obstruction of justice based on defendant’s flight and denied any reduction for acceptance of responsibility on the ground that her flight was inconsistent was acceptance of responsibility. On appeal, the Ninth Circuit affirmed, agreeing with two other circuits, U.S. v. Loeb, 45 F.3d 719, 722 (2d Cir.) cert denied, 115 S.Ct. 2017 (1995), and U.S. v. Fahn, 13 F.3d 447, 449 (1st Cir. 1994). There was no clear error in concluding that defendant had failed to demonstrate acceptance of responsibility. U.S. v. Thompson, 80 F.3d 368 (9th Cir. 1996).

 

9th Circuit finds obstruction and no acceptance of responsibility for lying to probation office. (492) Defendant lied to the probation office and conveniently omitted a conviction on his record which occurred during one of his periods “on the lam.” The Ninth Circuit concluded that this was at least an attempted obstruction of justice during sentencing, and accordingly affirmed the district court’s enhancement under § 3C1.1. Having found obstruction, it was also proper for the court to deny credit for acceptance of responsibility under § 3E1.1. U.S. v. Merino, 44 F.3d 749 (9th Cir. 1994).

 

9th Circuit says lying about motive does not preclude adjustment for acceptance of responsibility. (492) 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 upholds both acceptance of responsibility and obstruction of justice. (492) After the guidelines became effective in 1987, application note 4 to § 3E1.1 was amended to state that there may be extraordinary cases in which adjustments for obstruction of justice and acceptance of responsibility may apply. The 9th Circuit held that the “relevant inquiry for determining if a case is an extraordinary case within the meaning of application note 4 is whether the defendant’s obstructive conduct is not inconsistent with the defendant’s acceptance of responsibility.” Here, the defendant’s obstructive conduct of burning evidence and attempting to procure false alibis was not inconsistent with his subsequent confession of guilt and disclosure of information relating to the crime. Therefore, the court did not err in allowing simultaneous adjustments for acceptance and obstruction. U.S. v. Hopper, 27 F.3d 378 (9th Cir. 1994).

 

9th Circuit says lying about reason for committing crimes did not justify denying credit for acceptance of responsibility. (492) After pleading guilty, the defendant told the probation officer for the first time that the reason he committed the crimes was to help Josephine Flores, who had told him that she would otherwise lose her life.  The district court found that because defendant had never said this before, he was lying and thus not fully accepting responsibility for his crimes.  On appeal, the 9th Circuit reversed, holding that a defendant’s reason or motive for com­mitting a crime may not be considered in de­termining whether to grant the adjustment.  “Even if it were established that Gonzalez . . . lied about why he committed the crimes, this lack of candor . . . should play no part in the district court’s section 3E1.1 determination.”  U.S. v. Gonzalez, 16 F.3d 985 (9th Cir. 1993).

 

9th Circuit denies acceptance credit for minimizing involvement and attempting to gain acquittal for others. (492) The district court found that when defendant testified, he “minimized his own involvement and at­tempted to gain acquittal for the other defen­dants by stating that they knew nothing of his criminal activity.”  The 9th Circuit held that this type of false testimony was inconsistent with an acceptance of responsibility, and the sentencing judge’s denial of credit was “entitled to great deference on review.”  U.S. v. Acuna, 9 F.3d 1442 (9th Cir. 1993).

 

9th Circuit upholds rejection of accep­tance of re­sponsibility reduction based on defendant’s testi­mony. (492) The district court denied credit for ac­ceptance of respon­sibility, finding that defendant’s testimony at trial showed a denial of responsibility, liabil­ity or complicity in the offenses of possessing and manufacturing destructive devices.  The district court also found defendant perjured himself at trial.  The 9th Circuit found no er­ror in the court’s “well founded conclusion” that defendant did not demon­strate accep­tance of responsibility. U.S. v. Cox, 7 F.3d 1458 (9th Cir. 1993).

 

9th Circuit denies credit for acceptance of respon­sibility where defendant showed no contrition and testified falsely. (492) De­fendant testified at trial, ad­mitting that he formed the companies, and that he made the representations for which he was charged.  He also substantially cooperated with the government in this “complicated, document-laden proceeding.”  Never­theless the district court found that defendant showed “no con­trition,” “testified falsely in certain in­stances,”  and was a “cold and callous individual” with no “redeeming” features.  The 9th Circuit af­firmed the dis­trict court’s refusal to give credit for acceptance of re­sponsibility.  U.S. v. Niven, 952 F.2d 289 (9th Cir. 1991), overruling on other grounds recognized by U.S. v. Ortland, 109 F.3d 539 (9th Cir. 1997).

 

9th Circuit upholds denial of acceptance of responsibility credit where defendant ob­structed justice. (492) As of November 1, 1989, a defendant who obstructs justice may nevertheless be given credit for acceptance of responsibility.  In this case however, the district court’s denial of credit was not clearly erro­neous in light of the probation officer’s rec­ommendation that any expression of remorse lacked sincer­ity, and “the very purposeful and methodical way in which [defendant] attempted to suborn perjury.”  U.S. v. Lato, 934 F.2d 1080 (9th Cir. 1991).

 

9th Circuit denies reduction for acceptance of responsibility where defendant perjured him­self during related trial. (492) Defendant ar­gued that the district court’s consideration of his perjury was improper under U.S. v. Piper, 918 F.2d 839 (9th Cir. 1990), because it did not concern the crime to which he ultimately pled guilty.  Piper held that a reduction for an ac­ceptance of responsibility should not be denied solely upon the ground that defendant failed to confess to other crimes of which he was ac­cused.  Nevertheless, Piper also held that evi­dence of criminal activity “may be used to cast doubt on a defendant’s sincere acceptance of responsi­bility for the offense of conviction,” as long as the defendant is not required to admit “other criminal conduct.”  Here, the defendant was not required to admit unrelated crimes of perjury, rather he was required to admit that he knew the bill that he attempted to flush down the toilet was counterfeit.  The denial of credit for acceptance of responsibility was proper.  U.S. v. Stout, 936 F.2d 433 (9th Cir. 1991).

 

9th Circuit holds that 1987 version of § 3E1.1 pre­cluded finding of acceptance of re­sponsibility where defen­dant obstructed jus­tice. (492) Relying on its opin­ion in U.S. v. Avila, 905 F.2d 295, 298 (9th Cir. 1990), the 9th Circuit held that the 1987 version of applica­tion note 4 to U.S.S.G. § 3E1.1 “expressly precluded a find­ing of acceptance of responsi­bility where a defendant is found to have ob­structed justice.”  Although the 1989 version of application note 4 permits adjustments in “extraordinary cases,” the 9th Circuit refused to apply the new amendment retroactively to give defendant the ben­efit of the two point reduc­tion.  U.S. v. Au­delo-Sanchez, 923 F.2d 129 (9th Cir. 1991).

 

9th Circuit denies credit for acceptance of responsi­bility where defendant obstructs jus­tice, under pre-1989 guideline. (492) Reaf­firming its ruling in U.S. v. Avila, 905 F.2d 295 (9th Cir. 1990) the 9th Circuit held that “the 1987 version of Application Note 4 expressly pre­cludes a finding of accep­tance of responsi­bility” where the court has found an ob­struction of justice under § 3C1.1.  Avila also ruled that the 1989 amended ver­sion of application note 4 which pro­vides that both ad­justments may apply in extraordinary cases, “is not in­structive on how to apply the 1987 ver­sion of the Appli­cation Note.”  Accordingly the court held that the de­fendant, having ob­structed justice, was not entitled to down­ward adjustment for acceptance of responsibility.  U.S. v. Rafferty, 911 F.2d 227 (9th Cir. 1990).

 

9th Circuit finds obstruction of justice pre­cludes adjust­ment for acceptance of responsi­bility. (492) De­fendant, who obstructed justice during the course of his crime, argued that the sentencing judge erred in failing to grant him a two-point reduction for acceptance of re­sponsibility.  Judges Fernan­dez, Tang, and Norris af­firmed the sentence.  The court noted that defendant’s sentence was constrained by the per­tinent policy state­ments of the Sen­tencing Commission in ef­fect on the date of defendant’s sentencing.  At that time, an applica­tion note precluded a downward ad­justment for ac­ceptance of responsibility in any case where defen­dant had obstructed justice.  A later amendment to the appli­cation note left open the possibility of a downward ad­justment in such cases.  While this amendment would constitute “strongly persuasive evidence” of the proper construction of the earlier provision if the amendment was intended “only to clarify” earlier provisions, the court determined that the amendment was not merely clarifying, and therefore did not apply. U.S. v. Avila, 905 F.2d 295 (9th Cir. 1990), superseded on other grounds by guideline as stated in U.S. v. Hopper, 27 F.3d 378 (9th Cir. 1994).

 

10th Circuit rejects acceptance reduction where de­fendant continued his criminal con­duct. (492) The dis­trict court granted defendant a two-level reduction for acceptance of responsibil­ity, but also increased his of­fense level for ob­struction of justice. Both the obstruc­tion enhance­ment and the acceptance reduction can apply in “extraordinary cases.” The district court did not make the required findings here, and the Tenth Circuit revers­ed. Had the district court not applied the obstruction enhancement, the accep­tance reduction would still have been clear error. A defendant can meet his burden of proving acceptance of responsibility by truthfully admit­ting the conduct comprising the offense of con­vic­tion or voluntarily paying restitution prior to adjudication of guilt. Defendant did neither of these things, nor did he engage in any other con­duct demonstrating an acceptance of responsi­bil­ity. Defendant continued to deny that he wilfully engaged in criminal conduct, and did not volun­tarily pay restitution. Further, defendant put the gov­ernment to its burden of proof at trial, by deny­ing the mens rea element of the crimes charged. U.S. v. Melot, 732 F.3d 1234 (10th Cir. 2013).

 

10th Circuit upholds obstruction increase and denial of acceptance reduction for false testi­mony at plea withdrawal hearing. (492) Defen­dant sought to withdraw his guilty plea, testifying that his attorney promised him a 15-year sen­tence. He also testified that he had answered “yes” when the court asked him if he understood that his plea did not guarantee him a specific sentence, because his counsel told him to answer “yes” to the district court’s questions, whether or not he under­stood them. His counsel disputed all of this, and the dis­trict court refused to allow defendant to withdraw his plea, finding his testimony was not credible. The Tenth Circuit upheld an obstruction of justice enhance­ment based on defendant’s false testi­mony during the plea withdrawal hearing. An inten­tional lie in these circum­stances is, by definition, an effort to impede the adminis­tration of justice with respect to the prosecution and sentencing of the case. The perjury also supported the denial of an acceptance of responsibility reduction. De­fendant’s effort to avoid the consequences of his plea agreement using intentional lies under oath demonstrated that he had not accepted responsibility for his conduct. U.S. v. Soto, 660 F.3d 1264 (10th Cir. 2011).

 

10th Circuit reverses acceptance reduction for com­mitting perjury at suppression hearing and denying guilt at trial. (492) The government challenged the court’s granting defendant a reduction for acceptance of responsibility since (1) defendant obstructed justice through perjury at his suppression hearing, and (2) went to trial and denied his factual guilt. The Tenth Circuit agreed that he was not entitled to the reduction. In determining whether a case is “extraordinary” so as to merit a § 3E1.1 acceptance reduction and a § 3C1.1 obstruction increase, the sentencing court must consider the totality of the circumstances, including whether the obstruction was an isolated incident or an ongoing, systematic effort to obstruct the prosecution. Defendant’s attempt to suppress the evidence by perjuring himself at the suppression hearing was part of a systematic, non-aberrational, and voluntary plan to avoid responsibility. His decision to put the government to its burden of proof at trial also undermined the court’s conclusion that he accepted responsibility for his conduct. U.S. v. Salazar-Samaniega, 361 F.3d 1271 (10th Cir. 2004).

 

10th Circuit affirms obstruction increase and denies acceptance reduction to defendant who minimized injuries to murder victim. (492) It was undisputed that defendant and two friends got into a fight with the victim, and that after the fight was over, two of them drove the victim to a deserted road a short distance away and left him in his car. The victim was found dead in his car the following morning. Defendant testified that they were driving the victim home because he was drunk, and that when they realized they would have no way home, they pulled the car off the road and left the victim in the car so that he could “sleep it off” without being arrested. The district court imposed an obstruction of justice increase, finding adequate evidence that defendant knew or should have known that the victim had suffered life-threatening injuries and that without some medical care he would die. The court cited the fact that the victim was gurgling, as if he was choking on his own blood. Moreover, the victim’s position suggested that he was either unconscious or unable to move at the time he was placed in the car, yet defendant testified that the victim walked into the car by himself. The district court concluded that defendant and his friends willfully lied about a very material aspect of the case. The Tenth Circuit affirmed the obstruction increase. Moreover, defendants did not accept responsibility for their conduct. They continued to maintain that the victim suffered no more than a bloody nose, despite testimony from a police chief who knew the victim and could not recognize him when his body was found. U.S. v. Sarracino, 340 F.3d 1148 (10th Cir. 2003).

 

10th Circuit rules guidelines do not permit compromise one-level acceptance reduction. (492) The district court found that defendant’s case was “unique” because while she obstructed justice, her obstructive conduct went to leniency issues rather than culpability issues (she had forged certain letters of support). The court found that this type of obstruction went to “the weight” of the acceptance of responsibility reduction, and accordingly granted defendant a one-level acceptance of responsibility reduction. She challenged for the first time on appeal the court’s failure to grant her a two-level reduction. The Tenth Circuit held that § 3E1.1(a) must be interpreted in a binary fashion: either the defendant qualifies for the full two-level acceptance of responsibility reduction or the defendant gets no reduction at all. The court then examined whether the error met the plain error test for reversal. The error was plain, because the language of the guideline clearly and obviously was limited to an all or nothing adjustment. The court assumed, without deciding, that defendant’s substantial rights were affected. However, the fourth prong of the plain error analysis was not met: the plain error did not “seriously affect the fairness, integrity, or public reputation of judicial proceedings.” The district court’s error was likely in defendant’s favor and was not significant enough to merit reversal. The record strongly suggested that absent the error, the court would not have granted defendant any reduction at all. U.S. v. Brown, 316 F.3d 1151 (10th Cir. 2003).

 

10th Circuit rejects acceptance reduction despite claim that defendant fled because of belief she was dying. (492) The district court refused to grant defendant an acceptance of responsibility reduction because she had obstructed justice by fleeing before her original sentencing hearing. Defendant conceded the validity of the § 3C1.1 obstruction of justice increase, but challenged the court’s refusal to grant her an acceptance of responsibility reduction under Note 4 to § 3E1.1. She claimed that she believed that she was dying of AIDS, and she fled for that reason rather than to conceal her crime or to avoid accepting responsibility for it. The district court found defendant had not shown recognition for her criminal conduct, and that this was not one of those “exceptional cases” that would warrant both an obstruction enhance­ment and an acceptance of responsibility reduction. The Tenth Circuit ruled that the district court’s findings were not clearly erroneous. U.S. v. Archuletta, 231 F.3d 682 (10th Cir. 2000).

 

10th Circuit says efforts to obstruct justice were inconsistent with acceptance of responsibility. (492) The district court refused to reduce defendant’s sentence for acceptance of responsibility. The Tenth Circuit agreed that defendant’s numerous efforts to obstruct justice were inconsistent with acceptance of responsi­bility. Defendant behaved in an unruly manner during prior proceedings. He persistently resisted the court’s request that he either swear or affirm that he would testify truthfully. He refused to comply with court security proce­dures, failed to review court correspon­dence on which his name appeared in all capital letters, and was non-responsive to questions posed by the court. Defendant also tried to undermine the administration of justice by filing numerous frivolous documents with the district court. U.S. v. Lindsay, 184 F.3d 1138 (10th Cir. 1999).

 

10th Circuit rejects acceptance credit for defendant who violated appearance bond. (492) While released on bond, defendant failed to appear for a pretrial examination. He was eventually arrested again in another state. The district court concluded that there were no exceptional circum­stances warranting a § 3E1.1 reduction for acceptance of responsibility in light of defendant’s flight that gave rise to an obstruction of justice enhancement. Defendant argued that his obstruc­tion did not continue once he was back in custody and that upon his return he im­med­iately entered into negotiations with the gov­ern­ment to provide information concerning other criminal activity and entered his plea of guilty. The Tenth Circuit upheld the denial of the § 3E1.1 reduction since defendant did not show that his “good conduct” was voluntary. Defendant had to be returned to the jurisdiction by law enforcement. Conduct amount­ing to escape or violation of an appearance bond is evidence of failure to accept responsibility, and this fact alone provides adequate foundation for the court’s decision. U.S. v. Hawley, 93 F.3d 682 (10th Cir. 1996).

 

10th Circuit denies credit for acceptance where defendant falsely claimed to be a juvenile. (492) Defendant received an enhancement for obstruction of justice because he misrepresented that he was a juvenile in a motion to dismiss the indictment. The 10th Circuit upheld the district court’s refusal to grant an acceptance of responsibility reduction. The district court commented that because defendant had obstructed justice, he had not accepted responsibility for his crime. U.S. v. Tovar, 27 F.3d 497 (10th Cir. 1994).

 

10th Circuit finds case did not justify both acceptance reduction and obstruction enhancement. (492) The 10th Circuit upheld the denial of a reduction for acceptance of responsibility, finding this was not an extraordinary case warranting both an enhancement for obstruction of justice under § 3C1.1 and a reduction for acceptance of responsibility under § 3E1.1.  U.S. v. Fetherolf, 21 F.3d 998 (10th Cir. 1994).

 

10th Circuit says no relationship need ex­ist be­tween offense and obstructive con­duct. (492) Defendant received an enhance­ment for obstruction of justice because, while awaiting sentencing on a federal firearms charge, he allegedly attempted to es­cape from county jail.  The 10th Cir­cuit affirmed the en­hancement, rejecting defendant’s claim that a rela­tionship must exist between the guide­lines offense and the obstructive conduct.  Ap­plication note 3(e) provides that escaping or at­tempting to escape from custody before trial or sen­tencing is grounds for the obstruc­tion enhancement.  Nothing more is required.  The obstruction en­hancement was also grounds for denying defendant a reduction for acceptance of re­sponsibility.  U.S. v. Amos, 984 F.2d 1067 (10th Cir. 1993).

 

10th Circuit upholds denial of acceptance of responsi­bility for defendant who obstructed justice. (492) De­fendant challenged the district court’s failure to reduce his base offense level for acceptance of responsibility.  The 10th Cir­cuit found that the district court’s determi­nation was sup­ported by the defendant’s ob­struction of justice.  Although the evidence that he had threatened certain witnesses was hearsay, the 10th Circuit found that the sen­tencing court may consider hearsay evidence during sentencing so long as it does not “rely on ‘misinformation of constitutional magni­tude.’”  U.S. v. Johnson, 911 F.2d 1394 (10th Cir. 1990).

 

11th Circuit approves obstruction for false state­ments to law enforcement and judge. (492) Defendant made contradictory statements to authorities and the judge regarding the iden­tity and whereabouts of his co‑defendants, and his role and the role of his co‑defendants in his fraud scheme. At his plea hearing, defen­dant agreed that the government accur­ately stated that his co‑defen­dant assisted in the scheme. However, in an interview with a federal agent immediately after­ward, he stated that he himself played this role. Defendant also stated in that interview that another co‑defendant had no knowledge of the fraud scheme. However, in his proffer, defendant said he paid this co‑defendant $1000 for his part in the scheme. The Eleventh Circuit affirmed a § 3C1.1 en­hance­ment, agreeing that defendant obstructed justice by making materially false statements during the course of the investi­gation and pro­se­cution of the offense. These false state­ments also sup­ported the denial of an acceptance of responsibility reduction. U.S. v. Arguedas, 86 F.3d 1054 (11th Cir. 1996).

 

11th Circuit remands where court failed to apply amended guidelines in effect at time of sen­tencing. (492) Defendant was denied a sentence reduc­tion for ac­ceptance of responsi­bility on the ground that no such re­duction was available to a defendant who had ob­structed justice.  The guidelines had been amended prior to de­fendant’s sentencing to permit both a downward adjust­ment for acceptance of re­sponsibility and an upward adjust­ment for ob­struction of justice in “extraordinary cases.”  The 11th Circuit remanded the case, finding that the district court had failed to properly apply the guide­lines in effect on the date de­fendant was sentenced.  The district court was in­structed to determine whether de­fendant’s case qualified as “extraordinary” under the amended guidelines, thereby enti­tling him to a reduction for acceptance of responsibility.  U.S. v. Marin, 916 F.2d 1536 (11th Cir. 1990).

 

11th Circuit upholds denial of credit for ac­ceptance of re­sponsibility where defendant ob­structed justice. (492) Rec­ognizing that some courts have held that credit for accep­tance of responsibility is never justified where the de­fendant obstructs justice, the 11th Circuit found that it need not de­cide that question.  “Even if we were to in­terpret the Appli­cation Note [to U.S.S.G. 3E1.1] as merely creating a pow­erful presumption that an award for ac­ceptance of responsi­bility is not appro­priate in in­stances in which the district court has found that the defendant was deserving of an en­hancement under § 3C1.1, we would con­clude that the record comes nowhere near con­clusively rebutting this pre­sumption.”  Defen­dant never fully accepted respon­si­bility and was found in possession of marijuana three months af­ter ar­rest.  U.S. v. Wallace, 904 F.2d 603 (11th Cir. 1990).

 

11th Circuit holds obstruction of justice pre­cludes downward adjustment for acceptance of responsibility. (492) The defendant ar­gued that his sentence was erro­neous because al­though the Dis­trict Court found that he had accepted responsi­bility for his actions, it failed to re­duce his offense level by 2 points under § 3E1.1.  However, the 5th Cir­cuit found that this er­ror was harm­less because a defen­dant who has obstructed justice un­der § 3C1.1 can­not–as a matter of law–receive a re­duction in his offense level for acceptance of responsibil­ity.  U.S. v. Rivera, 879 F.2d 1247 (11th Cir. 1989).

 

D.C. Circuit says denial of reduction not plain error where defendant also obstructed justice. (492) Defendant argued for the first time on appeal that the district court erred by failing to explain why it denied him a two-level acceptance of responsibility reduction. The D.C. Circuit ruled that the denial of the § 3E1.1 reduction was not plain error, given that he went to trial and denied essential facts and also received an obstruction of justice enhancement for his subornation of perjury. Where a defendant receives an obstruction of justice enhancement, the acceptance of responsibility reduction is not ordinarily available, absent “extraordinary” circumstances. Defendant did not point to anything extraordinary about his case. Finally, the adjustment is only available if the defendant clearly demonstrates acceptance of responsi­bility for his offense. Defendant never expressed contrition for his crimes. U.S. v. Dozier, 162 F.3d 120 (D.C. Cir. 1998).

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

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