Pleas
and Sentencing p2
5.06 OBSTRUCTION OF JUSTICE
The guidelines require a two-level increase in the offense level when the
court finds that a defendant "willfully obstructed or impeded, or attempted to
obstruct or impede the administration of justice during the investigation or
prosecution of his offense." USSG §3C1.1. The commentary to Section 3C1.1
provides a non-exhaustive list of conduct which constitutes obstruction of
justice. Case law provides a variety of scenarios which justify an obstruction
of justice enhancement.
The obstruction guideline was amended effective
November 1, 1998
to include this
application note:
This adjustment applies if the defendant's obstructive conduct (A)
occurred during the course of the investigation, prosecution, or
sentencing of the defendant's instant offense of conviction, and (B)
related to (i) the defendant's offense of conviction and any relevant
conduct; or (ii) an otherwise closely related case, such as that of a
co-defendant.
USSG §3C1.1 comment. (n.1). The purpose was to clarify both the term
"instant offense" and the temporal element of the obstruction guideline. USSG
App. C, amend. 581 (1998).
Section 3C1.1 requires specific intent to obstruct justice. United
States v.
Henderson
, 58 F.3d 1145, 1153 (7th Cir. 1995). The government
bears the burden of proving that the enhancement is warranted by a preponderance
of the evidence.
United States
v. Parrott, 148 F.3d 629, 634 (6th
Cir. 1998);
United States
v.
Ewing
, 129 F.3d 430, 434 (7th Cir.
1997) (citation omitted). The Section does not require proof that the
defendant's conduct actually prejudiced or impacted the case.
Id.
Application note 1 to § 3C1.1 provides for a denial of guilt exception.
USSG § 3C1.1 comment (n.1); United States v. Gormley, 201 F.3d
290, 294 (4th Cir. 2000) (holding that defendant was not entitled to exception
because his statements went beyond merely denying guilt and implicated his
taxpayer clients in scheme to defraud).
The first behavior which is defined as obstruction of justice is
"threatening, intimidating, or otherwise unlawfully influencing a co-defendant,
witness, or juror, directly or indirectly, or attempting to do so." USSG §
3C1.1 comment. ( n.4(a)). See
United States
v. West, 58
F.3d 133, 137-38 (5th Cir. 1995) (holding that the court's finding may properly
be based on uncorroborated hearsay evidence). It is obstruction of justice for
a defendant to tell a witness to lie or confirm a common story. United
States v. Emerson, 128 F.3d 557, 563 (7th Cir. 1997); United
States v. Friend, 104 F.3d 127, 130 (7th Cir. 1997);
United States
v. Hollis, 971 F.2d 1441, 1460 (10th Cir. 1992).
"[C]ommitting, suborning, or attempting to suborn perjury" is likewise
considered conduct warranting an obstruction of justice enhancement. USSG §
3C1.1 comment (n. 4(b)). The Supreme Court has held that when a defendant
perjures himself on the stand, enhancing the defendant's offense level for
obstruction of justice is warranted.
United States
v. Dunnigan,
507
U.S.
87, 96 (1993); accord
United States
v. Fitzgerald,
232 F.3d 315, 321 (2d Cir. 2000) (concluding that obstruction enhancement was
required by defendant's perjury at both trial and sentencing); United
States v. Tandon, 111 F.3d 482, 490 (6th Cir. 1997). Noting that "not
every accused who testifies at trial and is convicted will incur an enhanced
sentence under § 3C1.1 for committing perjury," the sentencing court must
be satisfied that the inaccurate testimony was not due to confusion, mistake, or
faulty memory. Dunnigan, 507
U.S.
at 95. Therefore, in applying
the obstruction enhancement resulting from a defendant's perjury, the trial
court must make findings on the record which encompass all of the factual
predicates for a finding of perjury. Dunnigan, 507
U.S.
at 95.
See also United States v. Logan, 250 F.3d 350, 374-75 (6th Cir.
2001);
United States
v. Mounkes, 204 F.3d 1024, 1028-30 (10th
Cir.), cert. denied, 530
U.S.
1230 (2000). The Court indicated that
perjury requires: (1) the giving of false testimony; (2) concerning a material
matter; (3) with the willful intent to provide false testimony, rather than as
a result of confusion, mistake or faulty memory. Dunnigan, 507
U.S.
at 94. Compare
United States
v. Rubio-Topete, 999 F.2d
1334, 1341 (9th Cir. 1993) (rejecting two-level enhancement for obstruction of
justice in absence of factual findings by the sentencing court encompassing all
of the factual predicates necessary for a finding of perjury). The obstruction
guideline was amended in 1997 to clarify that there is no heightened standard of
proof when making an adjustment for perjury, merely that "the court should be
mindful that not all inaccurate testimony or statements reflect a willful attempt
to obstruct justice." USSG App. C, Amend. 566 (1997).
Another scenario which is specifically delineated by the commentary is
"producing or attempting to produce a false, altered or counterfeit document or
record during an official investigation or judicial proceeding." USSG §
3C1.1 comment. (n.4(c)). But see Parrott, 148 F.3d at 635, in
which the court found that the enhancement was not warranted because there was
no evidence from which to conclude that the defendant submitted the false
documents for the purpose of impeding the government's investigation.
The guidelines also identify "destroying or concealing or directing or
procuring another person to destroy or conceal evidence that is material to an
official investigation or judicial proceeding . . . or attempting to do so" as
evidence obstruction. USSG § 3C1.1 comment (n.4(d)). The Ninth Circuit
found that transfer of $280,000 to
Switzerland
three weeks after the defendant
learned of the criminal investigation warranted the obstruction enhancement.
United States
v. Shetty, 130 F.3d 1324, 1334-35 (9th Cir. 1997)
("[I]n a tax case, money is material evidence.").
A defendant also obstructs justice by "providing materially false
information to a probation officer in respect to a presentence . . .
investigation for the court." USSG § 3C1.1, comment. (n. 4(h)). The
Guidelines define material evidence as information which, "if believed, would
tend to influence or affect the issue under determination." USSG § 3C1.1,
comment. ( n.6). See United States v. Martinez-Rios, 143 F.3d 662,
678 (2d Cir. 1998) (false information in affidavit for sentencing). "The
threshold for materiality ... is 'conspicuously low'." See
Gormley, 201 F.3d at 294 (internal citations omitted). A
defendant's failure to provide a probation officer with information
concerning the defendant's financial status, when it was necessary to
determine the defendant's ability to pay a fine or restitution, is
obstruction of justice.
United States
v. Beard, 913 F.2d 193, 199
(5th Cir. 1990). Accord
United States
v. Romer, 148 F.3d 359,
372-73 (4th Cir. 1998). In Romer, the appellate court found that the
sentencing court does not need to make an express finding of materiality if
it can be fairly implied from the court's statements during sentencing.
Id.
at 372. Note that the amendments effective November 1,
1998 "establish that lying to a probation officer about drug use while
released on bail does not warrant obstruction of justice under §
3C1.1." USSG § 3C1.1
Section 3C1.1 also advises that it is obstruction of justice to provide a
materially false statement to a law enforcement officer that significantly
obstructed or impeded the official investigation or prosecution of the instant
offense. USSG § 3C1.1 comment. (n. 4(g)) (emphasis added); United
States v. Emerson, 128 F.3d at 563; see also
United States
v. Baker, 200 F.3d 558, 561-62 (8th Cir. 2000). Interpreting the plain
language of the section, the First Circuit found "that an enhancement may be made
for unsworn, false statements to law enforcement officers only if the government
shows that the statements significantly obstructed or impeded the official
investigation or prosecution of the offense."
United States
v.
Isabel, 980 F.2d 60, 61-62 (1st Cir. 1992); (noting that
pre-1990 guidelines inaccurately appeared to permit the enhancement for a
deliberate, material lie even if the lie was unsuccessful in impeding the
investigation). accord United States v. Fiala, 929 F.2d 285,
290 (7th Cir. 1991).
An obstruction of justice enhancement is appropriate when a defendant
provides "materially false information to a judge or magistrate." USSG §
3C1.1 comment (n. 4(f)); United States v. Hernandez-Ramirez, 2001
WL 687001 (9th Cir.
June 20, 2001
). In Hernandez-Ramirez, the
Ninth Circuit held that submission of a false financial affidavit to a magistrate
judge for the purpose of obtaining counsel is sufficiently related to the offense
of conviction (violation of the United States Tax Code) to support a § 3C1.1
enhancement.
Id.
at *2.
The Second Circuit has held that backdating a promissory note warrants an
obstruction of justice enhancement.
United States
v. Coyne, 4 F.3d
100, 114 (2d Cir. 1993). In Coyne, the defendant was convicted of
numerous charges including mail fraud and bribery, but was acquitted of tax
evasion resulting from the failure to report $30,000, which was reflected by a
backdated note. The defendant argued that the jury must have concluded that the
transaction was a loan and that he, therefore, did not obstruct the Internal
Revenue Service investigation. The court found that the proof of the crime had
to be supported beyond a reasonable doubt, but that the burden of proving
obstruction of justice was by a preponderance of the evidence. Thus, the court
"was free to find that the backdating was an intentional attempt to thwart the
investigation of a bribe." Coyne, 4 F.3d at 114. See also
United States
v. Powell, 124 F.3d 655, 666-67 (5th Cir. 1997)
(submitting false documents in
IRS
audit, submitting false documents, and
attempting to suborn perjury);
United States
v. August, 984 F.2d
705, 714 (6th Cir. 1992).
Note that application note 4 to USSG § 3E1.1 states that "[c]onduct
resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the
Administration of Justice) ordinarily indicates that the defendant has not
accepted responsibility for his criminal conduct. There may, however, be
extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1
may apply." USSG § 3E1.1 comment. (n.4).
The Sixth Circuit has held that a district court must review the evidence
and set forth findings independent of those contained in the presentence
investigation report when applying an obstruction of justice enhancement.
United States
v. Middleton, 246 F.3d 825, 847 (6th Cir. 2001).
When a district court fails to do so, the reviewing court must vacate the
sentence and remand the case for resentencing.
Id.
5.07 GROUPING
Section 3D1.2 of the guidelines provides that "[a]ll counts involving
substantially the same harm shall be grouped together." The purpose is to impose
"incremental punishment for significant additional criminal conduct," but at the
same time prevent double punishment for essentially the same conduct.
United States
v. Seligsohn, 981 F.2d 1418, 1425 (3d Cir. 1992);
United States
v. Toler, 901 F.2d 399, 402 (4th Cir. 1990).
Grouping is a difficult area, and the guideline section outlining the rules for
grouping "is not a model of clarity."
United States
v. Gist, 101
F.3d 32, 34 (5th Cir. 1996).
Section 3D1.2 identifies four alternative methods to determine what
constitutes "substantially the same harm:" (a) the counts involve the same victim
and the same act or transaction; (b) the counts involve the same victim and two
or more acts connected by a common criminal objective or a common scheme; (c) one
of the counts embodies conduct that is treated as a specific offense
characteristic in the guideline applicable to another of the counts; or (d) when
the offense level is determined largely on the basis of the total amount of harm
or loss. USSG § 3D1.2. The methods are alternative and any one or more may
be applied.
United States
v. Bove, 155 F.3d 44, 49 (2d Cir.
1998).
Thus, subsections (a) and (b) provide for grouping when two offenses are
sufficiently interrelated and entail substantially the same harm when they
involve the same victim within the meaning of Section 3D1.2. The term "victim"
is defined by Application Note 2:
The term "victim" is not intended to include indirect or secondary
victims. Generally, there will be one person who is directly and most
seriously affected by the offense and is therefore identifiable as the
victim. For offenses in which there are no identifiable victims . . .
the "victim" for purposes of subsections (a) and (b) is the societal
interest that is harmed. In such cases, the counts are grouped
together when the societal interests that are harmed are closely
related.
USSG §3D1.2, comment. (n.2). Thus, in victimless crimes, "'the grouping
decision must be based primarily upon the nature of the interest invaded by each
offense.'"
United States
v. Gallo, 927 F.2d 815, 824 (5th Cir.
1991)(money laundering and drug trafficking are not closely related); see
United States
v. Harper, 972 F.2d 321. 322 (11th Cir. 1992); but
see,
United States
v. Lopez, 104 F.3d 1149, 1150 (9th Cir. 1997)
(so-called victimless crimes are treated as involving the same victim when
the societal interests that are harmed are closely related and societal
interests harmed by money laundering and drug trafficking are closely
related).
Subsection 3D1.2(c) provides that when conduct that represents a separate
count is also a specific offense characteristic or other adjustment to another
count, the count represented by that conduct is to be grouped with the count to
which it constitutes an aggravating factor. This provision is designed to
prevent "double counting." USSG § 3D1.2, comment. (n.5). Grouping under
this section is only proper, however, when the offenses are closely related.
Id.
Nevertheless, this provision will apply even where the
offenses involve different harms or societal interests.
Id.
Subsection 3D1.2(d) applies to crimes where "the guidelines are based
primarily on quantity or contemplate continuing behavior." USSG §3D1.2,
comment. (n.6). Section 3D1.2(d) lists a number of offenses, including tax
offenses, which are to be included in the category of offenses that have the
offense level determined by loss, and provides a list of offenses specifically
excluded from the operation of that subsection. In other words, Section 3D1.2(d)
"divides offenses into three categories: those to which the section specifically
applies; those to which it specifically does not apply; and those for which
grouping may be appropriate on a case-by-case basis."
United States
v.
Gallo, 927 F.2d 815, 823 (5th Cir. 1991); accord United
States v. Williams, 154 F.3d 655, 656 (6th Cir. 1998)("Subsection (d)
further divides Guidelines sections covering classes of harms more or less
susceptible to aggregation into three broad categories--those which 'are to be
grouped,' those 'specifically excluded' from aggregated treatment and those
subject to grouping on a 'case by case' basis"). Note that there is no
automatic grouping merely because the counts are on the "to be grouped" list.
Seligsohn, 981 F.2d at1425; see Williams, 154
F.3d at 56-57;
United States
v.
Taylor
, 984 F.2d 298, 303 (9th
Cir. 1993);
United States
v. Johnson, 971 F.2d 562, 576 (10th Cir.
1992). Generally, courts have not grouped counts when the applicable guidelines
sections measure the harm differently. Williams, 154 F.3d at 56-
57. Application note 7 expressly states that the methods are alternative and
that any one or more may be applied. Bove, 155 F.3d at 49.
Thus, tax evasion and fraud and conversion offenses have been grouped under
USSG § 3D1.2(d) because they "measure the harm by reference to the amount
of monetary loss" and they are offenses of the same general type due to the
"unity of the offense tables for tax evasion, fraud, and conversion."
United States
v. Fitzgerald, 232 F.3d 315, 319-20 (2d Cir. 2000).
And money laundering and counts involving the failure to file currency
transaction reports can be grouped, and the appropriate offense level determined
by the aggregated quantity of money involved in all the grouped counts.
United States
v. Shin, 953 F.2d 559, 562 (9th Cir. 1992). The
Eleventh Circuit has suggested that grouping might be appropriate for counts
involving both embezzlement and fraud.
United States
v. Harper,
972 F.2d 321, 322 (11th Cir. 1992). The Fourth Circuit has permitted grouping
of antitrust and tax conspiracy offenses.
United States
v. Romer,
148 F.3d 359, 364 (4th Cir. 1998).
The Ninth Circuit held that conspiracy to distribute drugs and money
laundering counts should be grouped because they harmed the same societal
interests. Lopez, 104 F.3d at 1150. The Lopez court
based its holding on the legislative history of the Anti-Drug Abuse Act of 1986
which demonstrated that Congress' primary purpose in prohibiting money
laundering was "to add a weapon to the arsenal against drug trafficking and to
combat organized crime."
Id.
at 1151. The court further noted
that Most Frequently Asked Questions About the Sentencing Guidelines 20 (7th ed.
1994) stated that "[B]ecause money laundering is a type of statutory offense that
facilitates the completion of some other underlying offense, it is conceptually
appropriate to treat a money laundering offense as 'closely intertwined' and
groupable with the underlying offense."
Id.
Grouping is not appropriate under section 3D1.2 when the guidelines measure
harm differently.
United States
v.
Taylor
, 984 F.2d 298, 303
(9th Cir. 1993) (holding that wire fraud and money laundering do not group);
United States
v. Johnson, 971 F.2d 562, 576 (10th Cir. 1992)
(holding that, because wire fraud measures the harm based on the loss resulting
from the fraud and money laundering measures harm on the basis of the value of
the funds, the two crimes do not group). But see USSG § 3D1.2,
comment. (n.5). The Third Circuit has held that grouping is inappropriate in a
case involving both fraud and tax evasion.
United States
v. Vitale,
159 F.3d 810 (3rd Cir. 1998)(wire fraud and tax evasion do not group);
United States
v. Astorri, 923 F.2d 1052, 1056 (3d Cir. 1991);
accord Seligsohn, 981 F.2d at 1425. But see United
States v. Haltom, 113 F.3d 43, 45-47 (5th Cir. 1997), which distinguishes
Astorri and finds that mail fraud and tax evasion counts had to be
grouped where the base offense level for tax evasion was increased because
income was derived from criminal activity.
Question 89 in the Questions Most Frequently Asked About the
Guidelines (1993 Edition) addressed the question of whether tax evasion and
another count embodying criminal conduct that generated the income on which tax
was evaded group. The Commission responded:
Yes. The counts can be grouped under § 3D1.2(c). Grouping rule
(c) instructs that counts are to be grouped when one of the counts
embodies conduct that is treated as a specific offense characteristic
in, or other adjustment to, the guideline applicable to another of the
counts. Specific offense characteristic (b)(1) of 2T1.1 (Tax Evasion)
provides an enhancement if the defendant failed to report or to
correctly identify the source of income exceeding $10,000 in any year
from criminal activity. Tax evasion is always grouped with the
underlying offense according to rule (c), regardless of whether (b)(1)
was actually applied.
The Second Circuit held that violations of 26 U.S.C. § 7206(1),
filing a false return, did not merge with conspiracy to structure financial
transactions to evade reporting requirements in violation of 18 U.S.C. §
371. Bove, 155 F.3d at 50. The Second Circuit also determined
that "the laws prohibiting perjury and tax evasion protect wholly disparate
interests and involve distinct harms to society."
United States
v.
Barone, 913 F.2d 46, 50 (2d Cir. 1990). Thus, the two crimes cannot be
grouped for sentencing purposes. Barone, 913 F.2d at 50.
Accord Williams, 154 F.3d at 657 (when bankruptcy count
charged a false oath or account filed under Title 11 of the United States Code,
harm is measured in a different fashion than tax fraud);
United States
v.
Madoch, 108 F.3d 761, 764 (7th Cir. 1997) (bankruptcy and fraud counts
are grouped separately because they represent separate victims with separate
harms).
At least one circuit has found that verdicts entered at different times can
be grouped for sentencing purposes. See
United States
v.
Kaufman, 951 F.2d 793 (7th Cir. 1992). In Kaufman, the
defendant was indicted on four counts of money laundering and one count of
attempted money laundering. At trial, the jury acquitted the defendant of counts
one and two, convicted on count five, and was unable to reach a verdict on counts
three and four. The court declared a mistrial as to counts three and four,
leaving them unresolved. The court sentenced on count five, and the defendant
appealed. The appellate court found that count five could be grouped for
sentencing with counts three and four, if necessary, when counts three and four
were resolved. Kaufman, 951 F.2d at 796.
The Sixth Circuit has held that Section 3D1.4, regarding multiple count
adjustments, permits a court to apply the multiple count adjustment to counts
arising from separate indictments.
United States
v. Griggs, 47
F.3d 827, 830-31 (6th Cir. 1995). The defendant in Griggs pled
guilty to one count of each of two indictments. Relying on Section 5G1.2
discussing "Sentencing on Multiple Counts of Conviction," the
Griggs court noted that a combined offense level must first be
determined which incorporates the counts from the separate indictments. Only
then is the court free to apply a sentence to multiple counts in a separate
indictment.
Id.
Note that the First Circuit has affirmed a
district court finding that counts from different indictments did not group
because they were not "closely related" as defined in USSG §3D1.2.
United States
v. Hernandez Coplin, 24 F.3d 312, 319-20 (1st Cir.
1994).
5.08 ACCEPTANCE OF RESPONSIBILITY
5.08[1] Acceptance of Responsibility: In General
USSG §3E1.1(a) authorizes the district court to reduce a defendant's
offense level by two levels "[i]f the defendant clearly demonstrates a
recognition and affirmative acceptance of personal responsibility for his offense
. . ." A defendant demonstrates acceptance of responsibility by:
1) truthfully admitting conduct comprising the offense, and
truthfully admitting or not falsely denying any additional
relevant conduct;
2) voluntarily terminating criminal conduct, or withdrawing from
criminal associations;
3) voluntarily paying restitution prior to adjudication of guilt;
4) voluntarily surrendering to authorities promptly after
committing the offense;
5) voluntarily assisting authorities in recovering fruits and
instrumentalities of the offense;
6) voluntarily resigning from an office or position held while
committing the offense;
7) making significant post-offense rehabilitation efforts; or
8) timely accepting responsibility.
USSG §3E1.1(a), comment. (n.1). The provision for a reduction of a
defendant's sentence for acceptance of responsibility "merely formalizes and
clarifies a tradition of leniency extended to defendants who express genuine
remorse and accept responsibility for their wrongs."
United States
v.
Lancaster
, 112 F.3d 156, 158 (4th Cir. 1997), quoting United
States v. Crawford, 906 F.2d 1531, 1534 (11th Cir. (1990).
The most common means by which a defendant qualifies for a reduction in
his offense level for acceptance of responsibility is by entering a guilty plea
and admitting to the elements of the crime to which he is pleading. "This
adjustment is not intended to apply to a defendant who puts the government
to its burden of proof at trial by denying the essential factual elements of
guilt, is convicted, and only then admits guilt and expresses remorse." USSG
§ 3E1.1(a), comment. (n.2) (emphasis added).
In rare circumstances, a defendant may clearly accept responsibility, yet
proceed to trial. Such a circumstance occurs when a defendant goes to trial to
assert and preserve issues of constitutionality or statutory application
unrelated to factual guilt.
United States
v. Mack, 159 F.3d 208,
220 (6th Cir. 1998);
United States
v.
Wilson
, 159 F.3d 280, 292
(7th Cir. 1998);
United States
v. McKittrick, 142 F.3d 1170, 1178
(9th Cir. 1998). In such cases, determination of whether the defendant accepted
responsibility will be based primarily on pre-trial statements and conduct.
Mack, 159 F.3d at 220.
Even if a defendant pleads guilty, the district court may properly find
that the defendant has not accepted responsibility for his conduct and is,
therefore, not entitled to a reduction in offense level. USSG §3E1.1,
comment. (n.3) (A defendant who pleads guilty is not entitled to
an adjustment pursuant to §3E1.1 as a matter of right.);
United States
v. Muhammad, 146 F.3d 161, 168 (3d Cir. 1998). An attempt to plead
guilty also does not guarantee this reduction.
United States
v.
Ervasti, 201 F.3d 1029, 1043 (8th Cir. 2000). In order to qualify for
the reduction, the defendant must affirmatively accept personal responsibility.
United States
v.
Lublin
, 981 F.2d 367, 370 (8th Cir. 1992). The
defendant must show sincere contrition to warrant such a reduction. United
States v. Beard, 913 F.2d 193, 199 (5th Cir. 1990);
United States
v. Royer, 895 F.2d 28, 30 (1st Cir. 1990). The burden is on the
defendant to demonstrate his acceptance of personal responsibility,
Lublin
, 981 F.2d at 370, by a preponderance of the evidence.
United States
v. Middleton, 246 F.3d 825, 845 (6th Cir.
2001)(citing United States v. Tucker, 925 F.2d 990, 991 (6th Cir.
1991)). "[T]he question is not whether [the defendant] has actively asserted his
innocence but whether he clearly demonstrate[d] acceptance of his guilt."
United States
v. Portillo-Valenzuela, 20 F.3d 393, 394 (10th Cir.
1994). Being merely regretful is not sufficient to warrant the reduction.
United States
v. Gallant, 136 F.3d 1246, 1248 (9th Cir. 1998). The
Third Circuit affirmed the denial of acceptance of responsibility to a defendant
who pled guilty in order to obtain tactical advantage. Muhammed,
146 F.3d at 168. The range of conduct upon which a court may base its decision
varies in different circuits.
The assertion of an entrapment defense has been found to be inconsistent
with acceptance of responsibility when the defendant claims that his actions are
not his fault, but rather are due to the inducements of the government.
United States
v. Hansen, 964 F.2d 1017, 1021-22 (10th Cir.
1992). Other courts also have reasoned that the reduction may not
rest solely on the basis that a defendant admitted performing the acts leading
to conviction when that defendant claims entrapment.
United States
v.
Chevre, 146 F.3d 622, 623 (8th Cir. 1998);
United States
v.
Brace, 145 F.3d 247, 264-65 (5th Cir. 1998) (entrapment defense is a
challenge to criminal intent and thus to culpability);
United States
v.
Kirkland
, 104 F.3d 1403, 1405-06 (D.C. Cir. 1997);
United States
v. Simpson, 995 F.2d 109, 112 (7th Cir. 1993). But see United
States v. Davis, 36 F.3d 1424, 1435-36 (9th Cir. 1994) (district court
may not deny defendant acceptance of responsibility solely because he has
presented an entrapment defense). Similarly, the Tenth Circuit affirmed the
denial of acceptance of responsibility to a defendant who acknowledged the
factual basis for the charges and went to trial only to assert the insanity
defense.
United States
v. Moudy, 132 F.3d 618, 621 (10th Cir.
1998). The district court may deny a reduction for acceptance of responsibility
even when the actions of a defendant appear to be in accordance with the
language contained in USSG §3E1.1 comment. (1). The Tenth Circuit found
that the sentencing court properly denied a downward adjustment despite the
defendants' payment of restitution.
United States
v. Hollis,
971 F.2d 1441, 1459 (10th Cir. 1992). In Hollis, the court found
that the reduction was unavailable to the defendants who had signed a consent
judgment only after conviction as to $35,000 that had previously been seized .
Likewise, the defendants' offer to pay $90,000 in restitution in an effort to
avoid indictment failed to qualify the defendants for a reduction.
Hollis, 971 F.3d at 1459.
A defendant, in order to qualify for acceptance of responsibility, need not
admit to conduct beyond the count of conviction. USSG §3E1.1, comment.
(n.1(a)) ("a defendant is not required to volunteer, or affirmatively admit,
relevant conduct beyond the offense of conviction in order to obtain a reduction
under subsection (a)." ) The Government "may not impose substantial penalties
because [an individual] elects not to exercise his Fifth Amendment right not to
give incriminating testimony against himself." Lefkowitz v.
Cunningham, 431
U.S.
801, 805 (1977). To require a defendant to admit
to behavior beyond the crime of conviction would require a defendant to
incriminate himself in violation of his Fifth Amendment privilege. Therefore,
a sentencing court cannot condition the acceptance of responsibility reduction
on admitting conduct for which the defendant was not been convicted. See,
e.g., United States v. Frierson, 945 F.2d 650, 659-60
(3d Cir. 1991);
United States
v. Piper, 918 F.2d 839, 841 (9th Cir.
1990);
United States
v. Oliveras, 905 F.2d 623, 632 (2d Cir.
1990);
United States
v. Perez-Franco, 873 F.2d 455, 463 (1st Cir.
1989). However, "a defendant who falsely denies, or frivolously contests,
relevant conduct that the court determines to be true has acted in a manner
inconsistent with acceptance of responsibility." USSG §3E1.1, comment.
(n.1(a)); See United States v. Bindley, 157 F.3d 1235 (10th Cir.
1998). See also
United States
v. Hicks, 978 F.2d
722, 726 (D.C. Cir. 1992).
Courts have consistently rejected the argument that USSG § 3E1.1
unconstitutionally punishes a defendant who invokes his Fifth Amendment right not
to incriminate himself by admitting his guilt. Denial of the two-level
reduction does not constitute a penalty and does not implicate the Fifth
Amendment.
United States
v. Clemons, 999 F.2d 154, 159 (6th Cir.
1993);
United States
v. Saunders, 973 F.2d 1354, 1362 (7th Cir.
1992);
United States
v. Frazier, 971 F.2d 1076, 1084 (4th Cir.
1992);
United States
v. Piper, 918 F.2d 839, 841 (9th Cir.
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