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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
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§492 Acceptance of Responsibility: Effect of Perjury/Obstruction
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).
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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