United States v. Wright , 117 F.3d 1265 ( 1997 )


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  • KRAVITCH, Senior Circuit Judge, dissenting:
    The majority holds that the district court based its refusal
    to   grant   Wright    a   downward       adjustment    for   acceptance    of
    responsibility upon a finding that Wright did not show remorse, and
    the majority holds that, even if the district court denied the
    downward adjustment because Wright asserted a legal challenge to
    his conviction, the district court did not err.               Based upon the
    record, I cannot conclude that the district court denied Wright a
    downward adjustment because of a consideration of permissible
    factors such as his lack of remorse or insincerity, or even because
    of   consideration    of   those   factors    along    with   Wright's   legal
    challenges to the constitutionality of his indictment.             Rather, I
    interpret the record to show that the district court denied the
    downward adjustment solely because it did not accept Wright’s
    counsel’s purely legal argument, which was based upon facts that
    Wright truthfully had admitted.              Because I believe that the
    majority has misinterpreted the record and, more importantly, has
    misapplied the law, I respectfully dissent.
    I.
    Wright admitted immediately upon arrest that he possessed the
    machineguns, then led the agents to the location of these weapons,
    and subsequently consented to the search of his residence that
    resulted in the discovery of an additional machinegun and the three
    1
    pipe bombs.    After filing a motion to dismiss the indictment on
    constitutional     grounds,    Wright      timely     pleaded     guilty   to   the
    offenses charged.       Wright thus truthfully admitted the conduct
    comprising the offenses of conviction and did so at the time of his
    arrest, when he pleaded guilty, and at the time of sentencing.                  He
    also cooperated with law enforcement authorities and assured the
    district court that he had not possessed any weapons since his
    arrest.    It is apparent from these facts that Wright presented
    “significant   evidence”      of    acceptance      of    responsibility.       See
    U.S.S.G. § 3E1.1, comment. (nn.1 & 3).
    It was within the authority of the district court to conclude
    that this evidence was “outweighed by conduct of the defendant that
    is inconsistent with such acceptance of responsibility.”                        See
    U.S.S.G. § 3E1.1, comment. (n.3).                In my view, however, the
    district   court   in   this       case   did   not      rely   upon   permissible
    considerations in concluding that Wright’s conduct was inconsistent
    with acceptance of responsibility.               After listening to Wright
    testify at the sentencing hearing, the district court stated:
    This is a hard issue. I think within Mr. Wright’s
    own frame of reference, he is sincere in a lot of
    the things that he said, but I just do not think
    Mr. Wright believes that he was a member of a
    militia whose mission was to protect the citizens
    of the State of Georgia against threats from the
    outside. I think Mr. Wright believes that he was a
    member of a group that was prepared to respond to
    whatever they perceived to be a threat or a
    problem. I’m not convinced by his testimony that
    they believed that they were carrying out the law
    as opposed to being ready to resist it. So, I will
    2
    overrule the defendant’s objection on the point
    regarding acceptance of responsibility.
    (R3:23).   Unlike the majority, I read these remarks to indicate
    that the district court denied Wright a downward adjustment solely
    because it did not find his constitutional challenge meritorious.
    The district court apparently (and correctly) understood the Second
    Amendment to protect only the possession and use of firearms that
    is reasonably related to an official state militia.    The district
    court further concluded that an official militia must be designed
    to protect the citizens of Georgia from outside threats and to
    carry out the law of Georgia and that Wright had made no showing
    that he belonged to such a group.     Wright, in contrast, believed
    that the Second Amendment protected his conduct, and that belief
    formed the basis of his constitutional challenge to his conviction.
    Contrary to the majority’s suggestion, the district court made
    no finding that the defendant testified untruthfully about his
    militia involvement or that the defendant failed to show remorse.
    Rather, before listening to Wright’s testimony at the sentencing
    hearing, the district court stated:
    I think what really bothers me in this case is that Mr.
    Wright has put forward through counsel an assertion that
    he believed he was entitled to possess all of these
    weapons, and apparently the pipe bombs as well because he
    thought he was a member of a militia, and, therefore, he
    thought he was constitutionally able to have these
    things. And that assertion that he is making through
    counsel to me is not credible, and that’s what bothers
    me. . . . It appears to me that what has happened is
    counsel has identified some of the publications that seem
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    to be consistent with the idea of defending one’s
    countrymen, and you [counsel] have attempted to assert an
    argument building on his possession of those items.
    (R3:5-6).      The district court thus believed that Wright’s legal
    claim that his conduct was protected by the Second Amendment lacked
    merit.
    II.
    Despite    the   multi-faceted           nature    of   the    acceptance    of
    responsibility determination, see U.S.S.G. § 3E1.1, comment. (n.1);
    United States v. Calhoon, 
    97 F.3d 518
    , 531 (11th Cir. 1996), and the
    wide latitude afforded sentencing courts under this section, there
    are limits to a district court's discretion in deciding whether to
    grant a downward adjustment for acceptance of responsibility.
    Although, as we recently made clear, a “district court may consider
    the nature of [the defendant's legal challenges to his conviction]
    along with the other circumstances in the case when determining
    whether   a    defendant     should   receive       a    sentence     reduction    for
    acceptance of responsibility,” United States v. Smith, 
    127 F.3d 987
    ,   989    (11th   Cir.   1997)    (en       banc)    (“Smith”),    an   otherwise
    deserving defendant cannot be denied a reduction under § 3E1.1
    solely because he asserts a legal challenge to his conviction that
    is unrelated to factual guilt.
    In Smith, we held that a panel of this court had gone “too
    far” in concluding that “it is impermissible [for a district court]
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    to consider [a] challenge to the legal propriety of a sentence” in
    denying         a    reduction   in     offense   level   for     acceptance    of
    responsibility.          
    127 F.3d at 989
     (quoting United States v. Smith,
    
    106 F.3d 350
    , 352 (11th Cir. 1997) (as amended) (“Smith I”)).                  The
    original panel had erred, we concluded, in deciding that a district
    court categorically may not consider a defendant's legal challenge
    to a presentence report.1               Because “frivolous legal challenges
    could suggest to the district court that the defendant has not
    accepted        responsibility    for    his   conduct”   and   because    Smith's
    challenges to the probation officer's initial presentence report
    amounted to factual rather than legal contentions, Smith, 
    127 F.3d at 989
    ,      we   concluded   that    the   district   court    had    properly
    considered Smith's challenges in determining whether he should
    receive a sentence reduction pursuant to § 3E1.1, id.                 We did not
    hold in Smith, nor has this circuit ever held, however, that a
    district court may rely only upon a defendant's legal challenge,
    such as a constitutional challenge to the statute defining the
    criminal conduct or a challenge to the applicability of the statute
    to his conduct, see U.S.S.G. § 3E1.1 comment. (n.2), in deciding
    not        to   grant     a   downward     adjustment     for     acceptance    of
    responsibility.          Indeed, the defendant in Smith had challenged the
    1
    The original panel had held that “[t]o the extent that
    the court denied Smith a reduction for acceptance of
    responsibility because Smith's counsel objected to the
    presentence report on legal grounds, the court erred.” Smith I,
    
    106 F.3d at 352
    .
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    factual predicate to his conviction, rather than its legal basis,
    see Smith, 
    127 F.3d at 989
     (“These objections were factual, not
    legal, and amounted to a denial of factual guilt.”), and thus the
    Smith court could not have held that a solely legal challenge by a
    defendant to his conviction may serve as a valid basis upon which
    to deny a downward adjustment for acceptance of responsibility.
    Indeed, because such a holding would create constitutional
    infirmities in the Sentencing Guidelines, other circuits have
    concluded that legal challenges alone cannot form the basis for a
    denial of a downward adjustment for acceptance of responsibility.
    See United States v. Purchess, 
    107 F.3d 1261
    , 1267 (7th Cir. 1997)
    (concluding that “district court should not deny the reduction for
    acceptance of responsibility because the defendant challenges a
    legal conclusion drawn from the facts the defendant admits”);
    United States v. Fells, 
    78 F.3d 168
    , 172 (5th Cir.) (holding that
    district court erred in denying reduction for defendant who “freely
    admitted all the facts but challenged their legal interpretation”),
    cert. denied, 
    117 S. Ct. 134
     (1996); United States v. Broussard,
    
    987 F.2d 215
    , 224 (5th Cir. 1993) (holding that district court erred
    in denying acceptance of responsibility adjustment when defendant
    admitted ownership of guns found in home and went to trial only to
    argue that statute did not apply to uncontested facts), overruled
    on other grounds by J.E.B. v. Alabama, 
    114 S. Ct. 1419
     (1994); see
    also U.S.S.G. § 3E1.1, comment. (n.2) (stating that defendant who
    6
    does   not    plead     guilty    may    nevertheless     clearly   demonstrate
    acceptance of responsibility if he goes to trial in order “to make
    a constitutional challenge to a statute or a challenge to the
    applicability of a statute to his conduct”); cf. United States v.
    Perry, 
    977 F.2d 1230
    , 1234 (8th Cir. 1992) (affirming district
    court's      refusal     to      grant    adjustment     for    acceptance     of
    responsibility because defendant contested factual guilt).
    The   other     cases   cited     by   the   majority   to   support   its
    conclusion that the district court did not err in denying a
    departure for acceptance of responsibility based upon Wright’s
    “challenges     to    the   constitutionality       of   his   convictions”   are
    inapposite.     In United States v. Henry, 
    883 F.2d 1010
    , 1011 (11th
    Cir. 1989), the court held that the acceptance of responsibility
    provision of the Sentencing Guidelines does not violate the Fifth
    or Sixth Amendment, even though the provision may result in an
    unpleasant choice for a criminal defendant between taking the stand
    to assert his innocence and receiving a lesser sentence for
    acceptance of responsibility.            See United States v. McDonald, 
    935 F.2d 1212
    , 1222 (11th Cir. 1991) (describing the choice as “either
    forcing [the defendant] to confess to his own perjury or to forego
    taking the stand at trial to take advantage of [section 3E1.1]”).
    The court’s conclusion that the very existence of the provision in
    the Guidelines does not unconstitutionally “chill[] the right of a
    defendant to defend himself” at trial, Henry, 
    883 F.2d at 1011
    ,
    7
    however, in no way suggests that a district court may refuse to
    grant a reduction in sentence for acceptance of responsibility
    solely because the defendant challenged the constitutionality of
    his conviction.2
    The majority’s reliance upon United States v. Jones, 
    934 F.2d 1199
     (11th Cir. 1991), likewise is misplaced. As the portion of the
    opinion cited by the majority makes clear, the court in Jones ruled
    that the district court properly refused to grant a departure for
    acceptance of responsibility where the defendants challenged the
    factual basis of their guilt.               See Jones, 
    934 F.2d at 1200
    (referring     to    the   district     court’s   consideration    of    “the
    defendants’ denial of culpability at trial”) (emphasis added).
    Indeed, in Jones, in sharp contrast to the case before us, the
    defendants “ceased their criminal activity only after they were
    arrested[,] . . . maintained that they were innocent[,] . . .
    challenged     the   credibility   of   the   Government’s   witnesses    [at
    trial,] and urged the jury to find them not guilty.”              
    Id.
         The
    portion of the opinion cited by the majority merely demonstrates
    that the Jones court followed Henry in concluding that section
    3E1.1 “does not impermissibly punish the defendant for exercising
    2
    United States v. McDonald, 
    935 F.2d 1212
    , 1222 (11th Cir.
    1991), also cited by the majority to support its conclusion that
    a district court may refuse to grant a downward departure based
    solely upon the defendant’s legal challenges, merely followed
    Henry in rejecting the defendant’s claim that “the sentencing
    guidelines infringe[d] his right to appeal.”
    8
    his constitutional right to stand trial.”     Jones, 
    934 F.2d at
    1200
    (citing Henry, 
    883 F.2d at 1012
    ).       Moreover, unlike the majority
    opinion in the case before us, the court in Jones was careful to
    limit the authority of the district court to refuse to grant
    downward departures for acceptance of responsibility.      See Jones,
    
    934 F.2d at 1200
     (“[A] district court may not refuse to grant a
    reduction under section 3E1.1 solely because a defendant has chosen
    to proceed to trial . . . .”).
    III.
    Because the asserted legal argument did not relate to Wright’s
    factual guilt, see Smith, 
    127 F.3d at 989
    , and because, based upon
    the sentencing colloquy, the district court does not seem to have
    relied upon any basis other than Wright's legal challenges to the
    constitutionality of his indictment, I would conclude that the
    district court erred in denying Wright a downward adjustment for
    acceptance of responsibility. I therefore would remand the case to
    the district court for reconsideration of this issue.
    Accordingly, I respectfully DISSENT.
    9
    

Document Info

Docket Number: 95-8397

Citation Numbers: 117 F.3d 1265, 1997 WL 378481

Filed Date: 7/24/1997

Precedential Status: Precedential

Modified Date: 3/3/2020