United States v. Levar Williams ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0406n.06
FILED
No. 11-6493 Apr 25, 2013
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
LEVAR WILLIAMS, ) DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
)
BEFORE: MERRITT, SUHRHEINRICH and DONALD, Circuit Judges.
SUHRHEINRICH, Circuit Judge. Defendant Levar Williams was convicted by a jury of
conspiracy to distribute at least fifty grams of crack cocaine and possessing with intent to distribute
crack cocaine, and sentenced to 360 months’ imprisonment. He challenges both his conviction and
sentence. We AFFIRM.
I. Background
On December 31, 2008, Cleveland, Tennessee Police Officer Tyler Pride initiated a traffic
stop of a car with a nonfunctioning rear left brake light. Defendant was the driver. He identified
himself to Pride as Solomon Williams. Pride thought Defendant seemed unusually nervous and
asked him to get out of the car. Defendant attempted to flee but stopped after being tased.
Defendant had a bottle containing 3.9 grams of crack.
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In early 2009, Cleveland Narcotics Detective Dean Beverly received a letter from Anna
Smith concerning drug dealers. Beverly contacted Smith, who agreed to become an informant and
to make controlled purchases of crack. Smith told Beverly that she had been addicted to crack
cocaine and was familiar with individuals who were selling the drug.
Smith bought drugs from Defendant on a number of occasions. Officers had a procedure for
controlled drug transactions. The informant would call the target to set up the drug deal. Officers
recorded the calls. Officers would search the informant and his or her vehicle prior to the
transaction, equip the informant with an audio recording device and a separate audio transmitting
device (for real-time monitoring), and give the informant cash for the transaction. Officers would
follow the informant to the meeting and monitor the transaction. Afterwards, the officers would
meet with the informant, retrieve the narcotics, search the informant again, debrief and pay the
individual. The drugs would then be taken to the evidence room at the Cleveland Police Department
for processing. Audio or video recordings from the eleven transactions between Smith and
Defendant were admitted into evidence at trial without objection.1
On December 23, 2009, officers applied for and obtained a wiretap order. DEA Agent Frank
Ledford prepared the supporting affidavit. Ledford discussed the source of his information:
This affidavit is based primarily on my review of materials provided by
agents and officers as well as discussions with CPD officers and Sammy McNelley,
who has been a Task Force Officer with the DEA in Chattanooga, Tennessee.[] I
have also personally participated in some phases of the investigation, although I was
not personally present for the majority of drug purchases and other activity discussed
herein. I rely extensively on analysis of reports written by other federal, state, and
local law enforcement officers and employees assigned to this case; the review of
telephone toll records and pen register data; review of text messages received from
1
The recordings themselves were admitted into evidence and the transcripts were admitted
for identification purposes.
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the execution of a federal search warrant for such content; and review of debriefings
of controlled sources of information and other cooperating witnesses.
In a footnote Ledford explained that one source was Sammy McNelly2, a former agent with
the 10th Judicial Drug Task Force, who had been terminated from his employment for causing
“dissension” and improper cell phone use. The footnote explains that:
Sammy McNelley had originally prepared an affidavit for the interception of
wire and electronic communications in this case. He was recently terminated from
his employment with the 10th Judicial Drug Task Force, which disqualified him from
further participation as a DEA Task Force Officer. My understanding is that he was
terminated for causing “dissension” within the 10th Judicial Drug Task Force and for
improper use of a Task Force-issued cell phone. I do not have reason to believe that
McNelley has been dishonest or committed a crime. At this writing, McNelley is
appealing the decision to terminate his employment. McNelley was the DEA “case
agent” for the investigation discussed herein and I have relied extensively on
information provided by him for this affidavit. In my opinion, the integrity of all
aspects of the investigation, including the matters discussed in this affidavit, is sound.
Ledford further explained that a wiretap order was needed to help identify “the entire
organization operating in Cleveland and Chattanooga, Tennessee, and elsewhere;” stash houses,
sources of supply, and the specifics of the transportation of controlled substances; and “co-
conspirators involved in the distribution of controlled substances.” Ledford detailed why other
alternative investigative techniques were ineffective. For example, Ledford stated that while
“Physical Surveillance” “had been proven useful in verifying several meetings and corroborating CI
information,” it was “of limited value” because “[m]uch of the activity continues to take place in
neighborhoods, apartment buildings populated by friends and other individuals who WILLIAMS
knows and who could alert WILLIAMS of the presence of surveillance units if detected.” Ledford
2
The affidavit spells the surname “McNelley.”
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stated that “Use of Grand Jury Subpoenas” would not be helpful because Defendant and others
“would resort to violence and intimidation against persons they know to be cooperating.” Similarly,
“Interviews of Subjects and Associates” “would produce insufficient information” because these
individuals “would be under no obligation to speak with authorities,” and might divert the
investigation with untruths. Such interviews could also alert the members of the investigation.
“Search warrants” had been used, but given the size and scope of the suspected conspiracy, several
locations were likely and the wiretap was necessary to help identify these other locations. Ledford
explained that one “Undercover Officer[]” had been used to purchase drugs from Defendant, but she
had not been able to attain a level of authority in the organization and so was not able to identify all
the members or sources of the drugs. “Cooperating Individuals” had been used and had provided
useful information, “but not in depth to the point where the entire scope of the organization could
be revealed to law enforcement.” Ledford also discussed the limited utility of controlled purchases,
telephone records, pole cameras, and trash pulls.
Some of the recorded calls were between Defendant and codefendant Demetrius Byrd, one
of Defendant’s primary sources of cocaine. Byrd also later cooperated with the government. On
January 22, 2010, per the wiretap conversation, Byrd planned to travel from Chattanooga to
Cleveland to deliver crack to Defendant. He was stopped twice by police on the way, and the second
time the officers found approximately five grams of crack on Byrd. As a result, the officers obtained
a search warrant for Defendant’s residence. They also got an arrest warrant for Defendant, and
arrested him at codefendant Adrius Hickey’s house. At Hickey’s house, officers found Defendant
in Hickey’s restroom with 2.5 grams of cocaine base.
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On March 9, 2010, a federal grand jury indicted Defendant and others for conspiring to
distribute at least fifty grams of crack cocaine between December 2008 and January 2010, in
violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A) (Count One). Defendant was also charged with
possessing with intent to distribute crack cocaine on December 31, 2008 (Count Two), and thirteen
distributions of crack cocaine between June 24, 2009, and January 26, 2010, all in violation of 21
U.S.C. § 841(a)(1), (b)(1)(C) (Counts Three through Fifteen).
Initially, Defendant agreed to plead guilty to a lesser-included offense of Count One (i.e. a
drug-trafficking conspiracy with a lesser quantity), and the Government agreed to dismiss the
remaining counts. On July 15, 2010, Defendant pleaded guilty pursuant to this written agreement.
However, at the initial sentencing hearing on November 18, 2010, during allocution, Defendant
informed the court that “truthfully I am not this big time drug dealer,” that “I was used as a scapegoat
to save Cleveland city police department,” because he had previously accused officers of assaulting
him.3 As a result, the district court rejected Defendant’s guilty plea and set the case for trial.
Defendant filed a motion to suppress evidence obtained pursuant to the court-authorized
wiretap, arguing that the affidavit filed in support of the wiretap application failed to meet the
necessity requirements of 18 U.S.C. § 2518. Defendant also alleged that the wiretap affidavit
improperly relied on information from McNelly, who lacked credibility because he had been fired.
The magistrate judge found that the Government had established necessity and that the affidavit
contained sufficient and reliable evidence to authorize the wiretap, and therefore recommended that
information obtained from the wiretap not be suppressed. The district court agreed and denied the
motion. The court also found that the affiant’s reliance on information provided by the officer who
3
Defendant read a letter he had prepared to show the court his “true character.”
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had been fired did not undermine the reliability of the affidavit, because the former officer’s
credibility had not been called into question by his termination.
After a three-day jury trial, Defendant was convicted of Counts One through Fourteen and
acquitted of Count Fifteen. The Government’s proof included testimony from sixteen witnesses,
including three co-conspirators and two individuals who had purchased drugs directly from
Defendant; seventy-three audio recordings of Defendant arranging or engaging in drug distributions,
four video recordings of Defendant distributing drugs, and thirteen baggies of crack cocaine
purchased during controlled buys or recovered from Defendant when he was arrested.
Smith testified at trial that she purchased crack cocaine from Defendant eleven times, and
that she was subject to a protocol for each transaction. TBI Agent Kim Harmon, working undercover
and accompanied by a confidential informant, purchased crack cocaine from Defendant during a
recorded transaction. Codefendant Adrius Hickey testified that he sold food stamps in exchange for
crack cocaine. In one audio recording, Defendant refused to accept food stamps for the crack
cocaine, but said he would accept them for hydrocodone. Hickey testified that he introduced Smith
to Defendant. Demetrius Byrd explained the terminology he and Defendant used in conversations
caught in the wire intercepts to set up drug transactions and testified that he and Defendant met
numerous times to conduct drug transactions. Byrd testified that he was stopped two times by police
on January 22, 2010, while he was traveling from Chattanooga to Cleveland to deliver crack cocaine
to Defendant. Detective Beverly testified that after this incident, officers obtained a search warrant
for Defendant’s residence and also an arrest warrant for Defendant. They found him at Hickey’s
house, in the restroom with 2.5 grams of cocaine base. Elli Roberson, another cooperating witness,
testified that he sold crack to Defendant five or six times in 2008 to early 2009. And chemical
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analysts from TBI testified that they conducted a number of different tests on the substances derived
from the investigation, all without objection from Defendant.
Defendant objected to his presentence report because he did not receive a two-level reduction
for acceptance of responsibility. At sentencing, the district court denied the objection, stating:
[F]rom the defendant’s remarks [at his original sentencing hearing] the defendant
impressed the Court as someone who was minimizing their involvement and was
suggesting that he had been framed by other people involving things for reasons that
he articulated.
The commentary says that this adjustment should be provided to a defendant
who demonstrates that they have truthfully admitted the conduct comprising the
offense and truthfully admitted or not falsely denied additional relevant conduct for
which the defendant is accountable. Based upon the defendant’s actions before this
Court during his sentencing, the Court concludes that he has not accepted
responsibility for his actions and the defendant’s conduct from that time until today
does not clearly demonstrate acceptance of responsibility.
The court sentenced Defendant to an aggregate sentence of 360 months’ imprisonment,
within and at the bottom of the Guidelines range applicable to him as a career offender, based on two
prior felony drug convictions.
Defendant appeals. First, he challenges the court’s denial of his motion to suppress the
evidence obtained pursuant to the court-authorized wiretap. He also claims that the evidence was
not sufficient to support his convictions. Lastly, he objects to the court’s failure to grant him a
reduction for acceptance of responsibility.
II. Analysis
A. Wiretap
The wiretap statute, 18 U.S.C. § 2518(1)(c), provides that “[e]ach application for an order
authorizing or approving the interception of a wire . . . communication” must include “a full and
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complete statement as to whether or not other investigative procedures have been tried and failed or
why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.”
Defendant challenges the wiretap order on two grounds. First, he argues that the Government
failed to prove necessity. Second, he claims that the affidavit in support of the intercept order was
based on insufficient or unreliable evidence and that the order should not have issued.
The “necessity” requirement is designed “to assure that wiretapping is not resorted to in
situations where traditional investigative techniques would suffice to expose the crime” and to
prevent wiretapping from being “routinely employed as the initial step in criminal investigation.”
United States v. Landmesser, 553 F.2d 17, 19–20 (6th Cir.1977) (quoted cases omitted). “All that
is required is that the investigators give serious consideration to the non-wiretap techniques prior to
applying for wiretap authority and that the court be informed of the reasons for the investigators’
belief that such non-wiretap techniques have been or will likely be inadequate.” United States v.
Alfano, 838 F.2d 158, 163-64 (6th Cir.1988) (internal quotation marks and citation omitted ). See
also United States v. Corrado, 227 F.3d 528, 539 (6th Cir. 2000). This court has explained that “the
purpose of the necessity requirement ‘is not to foreclose electronic surveillance until every other
imaginable method of investigation has been unsuccessfully attempted, but simply to inform the
issuing judge of the difficulties involved in the use of conventional techniques.’” Id. (quoting
Landmesser, 553 F.2d at 20).
We review the district court’s ruling on a motion to suppress a wiretap for clear error as to
the factual findings and de novo as to the questions of law. United States v. Stewart, 306 F.3d 295,
304 (6th Cir. 2002). The “issuing judge’s” determination is entitled to “great deference.” Corrado,
227 F.3d at 539.
-8-
1. Necessity
Defendant claims that law enforcement officials failed to establish necessity for the wiretap
because they already had overwhelming proof against him and his coconspirators. We disagree, for
the reasons articulated by the district court:
Here, the 63-page affidavit plainly and plausibly described proper
investigatory ends which could not be reasonably furthered simply through the
traditional investigatory techniques employed to date. . . . [T]he affidavit emphasized
that a wiretap was the only mechanism with a reasonable likelihood of identifying
Defendant’s entire drug trafficking organization. While controlled purchases had
implicated Defendant as a distributor, and traditional surveillance had identified
several possible supplies, the affidavit stated officers were unsure of many of the
specifics of the trafficking network, such as where stash houses were located and
precisely who supplied Defendant. The affidavit further revealed that officers did not
aim simply at prosecuting Defendant, but at making prosecutable cases against
Defendant, his co-conspirators, and his suppliers, some of whom the government had
not been able to positively identify through traditional means. In short, while
traditional techniques, such as the use of confidential informants, surveillance, and
interviews with associates, were able to uncover much of the street-level criminal
activity of the conspiracy, they were not able to peer into the higher-order operational
interactions between Defendant and his co-conspirators and suppliers. Defendant’s
objection ignores this reality insofar as it stresses law enforcement officials could
have arrested and prosecuted Defendant well before seeking the wiretap. [Footnote
omitted]
As Defendant’s argument implicitly acknowledges, the officers used several traditional
investigative techniques and contemplated others before seeking the wiretap order. The affidavit
carefully informed the issuing judge why non-wiretap techniques had been inadequate. See
Landmesser, 553 F.3d at 20; Corrado, 227 F.3d at 528; Alfano, 838 F.2d at 163. Cf. United States
v. Rice, 478 F.3d 704, 707-09 (6th Cir. 2007) (upholding the district court’s grant of a motion to
suppress a wiretap order because the affiant included a reckless, misleading statement about the
general ineffectiveness of physical surveillance and offered no evidence that any other investigative
technique was used or even seriously considered). Cf. United States v. Wolcott, 483 F. App’x 980,
(6th Cir. 2012) (observing that while “[s]uspicions of a conspiracy that extends beyond a few
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identifiable individuals will not always warrant the authorization of wiretap authority,” the
government had adequately shown necessity for wiretaps on the defendant’s cellphones where the
confidential informant was a buyer and codefendants did not offer information or leadership roles
in the conspiracy).
In light of the “great deference” owed the issuing judge and the affidavit’s detailed discussion
of other investigative techniques, the district court did not err in finding that the necessity
requirement was satisfied.
2. Reliance on McNelly
Defendant alleges that the affidavit in support of the wiretap order prepared by Ledford was
insufficient or unreliable because Ledford relied on Agent McNelly. Defendant argues that
Ledford’s failure to properly investigate the reason for McNelly’s firing was reckless, and that as a
result Ledford’s affidavit lacked probable cause.
This argument must be rejected. First, Ledford did not make a false statement; he disclosed
that some of the information he received came from an officer who had been fired. Second, Ledford
pointed out that he received other independent information that established probable cause. As this
court explained in Alfano, “[t]he basic standards for a wiretap are similar to those for a search
warrant, but there also must be strict compliance with Title III.” Alfano, 838 F.2d at 161. Although
Title III “was enacted for the purpose of regularizing and controlling the issuance of warrants for
wiretaps,” there is no specific formula that must be met for a warrant.” Id. Rather, the evidence
must be judged on the totality of the circumstances, i.e., “whether there is probable cause to believe
that evidence of a crime will be uncovered.” Id. at 161-62.
Ledford’s affidavit met this standard. As the Government points out, Defendant himself
acknowledges the numerous controlled purchases and other investigative activity offered in support
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of the Government’s application for authorization to intercept wire and electronic communications
over his telephone. The controlled purchases, along with surveillance conducted prior to the wiretap,
and pen register data detailed in the affidavit, which were all independent of McNelly’s information,
provided probable cause. And Ledford stated that he referenced numerous sources of information,
including his own participation in the investigation, his review of audio recordings of controlled
buys, and review of debriefings of confidential informants and cooperating witnesses.
Defendant failed to present any information establishing that McNelly provided inaccurate
information to Ledford.4 As the district court held, to conclude that “McNelly’s termination for cell
phone abuse and general contentiousness meant it was unreasonable for SA Ledford to rely on
McNelly to provide accurate information “would be an exercise of pure speculation.” Thus, having
failed to show any factual deficiencies with the affidavit, his argument regarding lack of necessity
is rejected. Cf. United States v. Rice, 478 F.3d 704, 707-11 (6th Cir. 2007) (holding that the district
court did not err in suppressing the fruits of the wiretap where it determined that certain statements
about physical surveillance in the affidavit were misleading and recklessly made, and without them,
the affidavit failed to meet the necessity requirement).
4
In his brief, Defendant claims that had Ledford spoken with McNelly’s superiors or
personally reviewed his file, he would have learned of several deceitful practices by McNelly, and
cites “Exhibit to Memorandum in Support of Motion To Suppress R. No. 331, PAGE ID # 943.”
Record Entry 331 is Defendant’s memorandum in support of his motion to suppress. There is no
exhibit attached to the memorandum. The memorandum states merely that “[w]hile the United States
disclosed its understanding of Mr. McNelley’s situation on December 23, 2009, subsequent
investigation or events may have shown affiant’s understanding to be mistaken . . . certainly,
subsequent investigations might have revealed evidence of dishonesty and/or criminal behavior,
including the falsification of evidence related to this case.”
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B. Sufficiency of Evidence
Defendant argues that the Government did not prove beyond a reasonable doubt that he
conspired to distribute 50 grams or more of crack cocaine and that he distributed crack cocaine
twelve times, as found by the jury.
We must determine “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). To establish a drug conspiracy,
under § 846, the government must prove, beyond a reasonable doubt, “(1) an agreement to violate
drug laws, (2) knowledge and intent to join the conspiracy, and (3) participation in the conspiracy.”
United States v. Gibbs, 182 F.3d 408, 420 (6th Cir. 1999) (internal quotation marks and citation
omitted). “To establish a violation of § 841(a)(1), the government must prove the following
elements: “(1) knowing (2) possession of a controlled substance (3) with intent to distribute.” United
States v. Mackey, 265 F.3d 457, 460 (6th Cir. 2001) (internal quotations marks and citations
omitted).
First, Defendant complains that Smith, who was the primary witness for most of the
distribution counts, lacked credibility because she was a paid informant and admitted that she had
been using crack herself while acting as a confidential informant. In addition, she was never
properly searched before or after the controlled buys because no female officer was present to
conduct a proper search. Defendant’s criticisms are unavailing. To begin with, “it must be noted
that ‘attacks on witness credibility are simply challenges to the quality of the government's evidence
and not to the sufficiency of the evidence.’” Martin v. Mitchell, 280 F.3d 594, 618 (6th Cir. 2002)
(quoting United States v. Adamo, 742 F.2d 927, 935 (6th Cir.1984)). And, “it is well-settled that on
appeal, there ‘is no place . . . for arguments regarding a government witness's lack of credibility.’”
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United States v. Talley, 164 F.3d 989, 996 (6th Cir.1999) (quoting Adamo, 742 F.2d 927, 934–35
(6th Cir.1984)).
Defendant has a similar complaint about Byrd, who “interpreted” the meanings of recorded
conversations between he and Defendant. Defendant claims Byrd had a motive to lie because he
hoped to obtain a lower sentence. Yet, “[a]ppellate courts, unlike trial courts, do not have an
opportunity to observe witness demeanor and therefore are even less qualified to judge witness
credibility.” Adamo, 742 F.2d at 935.
Nonetheless, independent evidence corroborated both Smith and Byrd’s testimony. Wiretap
intercepts corroborated Byrd’s testimony regarding his drug transactions with Defendant. Byrd
authenticated his intercepted conversations. These recordings and controlled purchases corroborated
Smith’s testimony. Detective Beverly also confirmed Smith’s testimony. He repeatedly observed
Smith set up drug transactions with Defendant, observed and listened to her engage in each
transaction. Each time she did not have any crack cocaine prior to the meeting and she had crack
cocaine after each meeting. Furthermore, coconspirator Roberson5 testified that he sold drugs to
Defendant five or six times, in five or six gram amounts, and that when he didn’t have any drugs to
sell, he would refer Defendant to Byrd and others. Coconspirator Hickey testified that Defendant
sold him crack cocaine, which Hickey paid for with food stamps. Hickey introduced Smith to
Defendant so that she could purchase cocaine from him.
The trial evidence included twelve controlled purchases of crack cocaine, all recorded;
testimony from an undercover agent, three coconspirators, numerous wire intercepts and TBI lab
reports confirming that the substance sold by Defendant was crack cocaine. Based on the
5
Roberson is an unindicted coconspirator.
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voluminous evidence in this case, a reasonable juror could easily have found that Defendant
participated in a conspiracy to distribute drugs and that he distributed crack cocaine to Smith and
Agent Harmon. Moreover, Defendant was able to cross-examine the witnesses and expose their
motivations to the jury.
Defendant also complains that several of the TBI lab reports do not specify that the substance
analyzed was “crack cocaine” or “cocaine base.”6 However, at trial TBI agent David Holloway
explained that he was “certain” the contents were cocaine base and that the failure to make that
distinction on his report was “strictly an oversight.” As Defendant’s own brief reflects, the TBI
agents who testified confirmed that the seized substances were cocaine base. TBI Agent Carl Smith,
stated that he performed different confirmatory tests to identify whether the substance was cocaine
base. Sometimes he would conduct an additional test to confirm the substance was cocaine. Other
times he was able to determine through physical examination that the substances were cocaine base.
Defendant did not object to the admission of any of these reports.
Furthermore, three coconspirators testified that Defendant distributed crack cocaine. The
recordings and intercepted conversations revealed that Defendant distributed crack cocaine.
Defendant was caught with crack cocaine. So even if some of the lab reports did not specify the
exact form of the cocaine distributed by Defendant, the jury had abundant evidence to find that
Defendant trafficked in crack cocaine and was guilty of Counts One through Fourteen.
6
TBI Analyst Carl Smith testified that, although some of the reports said “cocaine,” rather
than “cocaine base,” this did not signify that the substance was not cocaine base, since Tennessee
law did not differentiate between the two forms of the drug.
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C. Acceptance of Responsibility
Defendant argues that the district court erred in failing to grant him a reduction for
acceptance of responsibility pursuant to U.S.S.G. § 3E1.1 because he attempted to plead guilty and
never claimed that he was innocent. The district court’s decision to deny an acceptance of
responsibility reduction is entitled to “great deference” by this court. We review for clear error.
Unites States v. Genschow, 645 F.3d 803, 813 (6th Cir. 2011). The defendant must “clearly
demonstrate[] acceptance of responsibility.” United States v. Crousore, 1 F.3d 382, 386 (6th Cir.
1993); United States v. Roberts, 243 F.3d 235, 241 (6th Cir. 2001).
Defendant was initially given the benefit of a plea bargain. When given the opportunity to
address the court at his initial sentencing hearing, Defendant denied personal responsibility, stating
“[s]urely by now we see and understand how everybody painted the picture on me. When I say
‘everybody,’ I mean the FBI, DEA, detectives, and street informants who was and are doing the same
mess they arrested me for.” Defendant claimed he was merely a petty hustler, a scapegoat, and never
a “big time” dealer. This admission was clearly inconsistent with the charges in the indictment and
the plea agreement. As the district court observed, the guideline requires the defendant to “truthfully
admit[]the conduct comprising the offense of conviction.” U.S.S.G. § 3E1.1 cmt.n.1. Although
section 3E1.1 does not automatically preclude a reduction if the defendant goes to trial, Defendant
has consistently downplayed his factual guilt. Thus, he is not entitled to a reduction. Cf. U.S.S.G.
§ 3E1.1 cmt. n.2 (“In rare situations a defendant may clearly demonstrate an acceptance of
responsibility for his criminal conduct even though he exercises his constitutional right to a trial.
This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not
relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the
applicability of a statute to his conduct).”)
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He persists on appeal, claiming that he “did not deny his conduct alleged in the Indictment
. . . or set forth in his plea agreement,” and that he “was simply using his right of allocution to advise
the Court of what he perceived to be unfairness in the methods used by, and motivation of, law
enforcement in his case.” In short, Defendant has yet to admit factual guilt. There is no clear error
and the district court’s determination is entitled to deference.
III. Conclusion
For the foregoing reasons, the judgment of the district court is AFFIRMED.
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