USCA11 Case: 22-10866 Document: 27-1 Date Filed: 05/12/2023 Page: 1 of 3
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10866
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WESLEY SORROW,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:19-cr-00038-MTT-CHW-1
____________________
USCA11 Case: 22-10866 Document: 27-1 Date Filed: 05/12/2023 Page: 2 of 3
2 Opinion of the Court 22-10866
Before JORDAN, BRASHER, and BLACK, Circuit Judges.
PER CURIAM:
Wesley Sorrow appeals his sentence of 210 months’ incar-
ceration, following his conviction on one count of bank robbery by
intimidation. Sorrow asserts the district court abused its discretion
at sentencing by declining to reduce his offense level for acceptance
of responsibility, pursuant to U.S.S.G. § 3E1.1. After review, 1 we
affirm.
A defendant may receive a two-level reduction in his offense
level if he “clearly demonstrates acceptance of responsibility for his
offense.” U.S.S.G. § 3E1.1(a). However, the commentary to the
Sentencing Guidelines expressly provides the “adjustment is not in-
tended to apply to a defendant who puts the government to its bur-
den of proof at trial by denying the essential factual elements of
guilt.” Id., comment. (n.2); see also United States v. Kinard,
472
F.3d 1294, 1297 (11th Cir. 2006) (noting the commentary to the
Sentencing Guidelines generally is binding on the courts). If a de-
fendant goes to trial to preserve issues that do not relate to his fac-
tual guilt—such as to argue that the statute does not apply to his
1 We review the application of the Sentencing Guidelines de novo. United
States v. Spoerke,
568 F.3d 1236, 1245 (11th Cir. 2009). “We review a denial
of a reduction of sentence for an acceptance of responsibility for clear error,
and that finding is entitled to great deference on review and should not be
disturbed unless it is without foundation.” United States v. Knight,
562 F.3d
1314, 1322 (11th Cir. 2009) (quotation marks omitted).
USCA11 Case: 22-10866 Document: 27-1 Date Filed: 05/12/2023 Page: 3 of 3
22-10866 Opinion of the Court 3
conduct—then the defendant might still qualify for the acceptance
of responsibility reduction. U.S.S.G. § 3E1.1 comment. (n.2); but
see United States v. Starks,
157 F.3d 833, 840-41 (11th Cir. 1998)
(holding a defendant who goes to trial to make a factual, rather
than a legal, challenge to the government’s criminal allegations is
precluded from receiving a § 3E1.1 reduction).
The district court did not clearly err in finding Sorrow was
not entitled to a reduction for the acceptance of responsibility.
First, while Sorrow confessed to robbing a bank in two separate
phone calls to family members, at no point in the proceeding be-
fore trial did he express to the Government an acceptance of re-
sponsibility. Rather, he denied his factual guilt by pleading not
guilty and by going to trial. He made no stipulations as to the al-
leged factual basis of the offense, instead choosing to put the Gov-
ernment to its burden on each element of the offense. As such, he
was not entitled to a reduction under § 3E1.1. See U.S.S.G.
§ 3E1.1(a) comment. (n.2); see also Kinard,
472 F.3d at 1297. Fi-
nally, despite his attempt to frame his trial strategy in other ways,
he put the Government to its burden of proof by contesting
whether he used intimidation in the commission of the burglary.
As such, Sorrow’s arguments at trial amounted to a factual denial
of guilt, and they were, therefore, inconsistent with acceptance of
responsibility. Starks,
157 F.3d at 840-41. Accordingly, we affirm.
AFFIRMED.
