United States v. Liteky ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4326
JOHN PATRICK LITEKY,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CR-97-427)
Submitted: August 25, 1998
Decided: September 10, 1998
Before LUTTIG and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Bravitt Cola Manley, Jr., Washington, D.C., for Appellant. Helen F.
Fahey, United States Attorney, William C. Henderson, Special Assis-
tant United States Attorney, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
John Patrick Liteky was convicted by a jury of two counts of dep-
redation of government property, 18 U.S.C.A. § 1361 (West Supp.
1998). He received a sentence of twelve months imprisonment. Liteky
appeals his sentence, contending that the district court clearly erred
by refusing to award him a reduction for acceptance of responsibility
under U.S. Sentencing Guidelines Manual§ 3E1.1 (1997). We affirm.
As part of an organized protest seeking to close the Army's School
of the Americas at Fort Benning, Georgia, Liteky threw red dye on
the walls of the Pentagon and in an entrance on September 29, 1997.
A charge was brought against him but dismissed on the government's
motion over his objection. On October 20, 1997, Liteky again threw
red dye on the Pentagon. This time he was prosecuted. Liteky repre-
sented himself at trial and stipulated to all elements of the offense
except that he acted willfully and knowingly. He used the trial to
explain his opposition to the School of the Americas.
The district court decided that Liteky had not accepted responsibil-
ity because he had put the government to its burden of proof, although
he did not deny throwing the dye. When imposing sentence, the court
also noted that Liteky had indicated that he intended to engage in the
same conduct again.
We review the district court's decision for clear error. See United
States v. Castner, 50 F.3d 1267, 1279 (4th Cir. 1995). The adjustment
for acceptance of responsibility is not intended for defendants who
deny factual guilt and put the government to its burden of proof at
trial. In rare cases, a defendant who goes to trial may demonstrate
acceptance of responsibility for his criminal conduct, if he goes to
trial "to assert and preserve issues that do not relate to factual guilt,"
such as the constitutionality of a statute or the applicability of a stat-
ute to the defendant's conduct. USSG § 3E1.1, comment. (n.2).
Liteky argues that his is such a case. However, a determination that
a defendant who has been convicted at trial has accepted responsibil-
ity is based mainly on pre-trial statements and conduct. Id. Liteky
deliberately provoked his prosecution and insisted on a trial to drama-
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tize his views on the School of the Americas. While he accepted the
inevitability of a conviction, the issues he sought to raise by means
of a trial were entirely unrelated to the statute under which he was
charged or any legal question arising from his prosecution. Naturally
enough, he expressed no remorse for his actions. In these circum-
stances, we cannot say that the district court clearly erred in finding
that the adjustment should not apply. See United States v. Harriott,
976 F.2d 198, 202 (4th Cir. 1992) (mere acceptance of fact of convic-
tion is not acceptance of responsibility).
The sentence is accordingly affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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