United States v. Gauthier

United States Court of Appeals
For the First Circuit
_____________________
No. 21-1785
UNITED STATES OF AMERICA,
Appellee,
v.
STEFAN R. GAUTHIER,
Defendant, Appellant.
_____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
_____________________
Before
Kayatta and Howard, Circuit Judges,
and Walker, District Judge.*
_____________________
Donna J. Brown for appellant.
Alexander S. Chen, Assistant United States Attorney, with
Jane E. Young, United States Attorney, and Seth R. Aframe,
Assistant United States Attorney, on brief, for appellee.
_____________________
November 18, 2022
_____________________
____________________
* Of the District of Maine, sitting by designation.
WALKER, District Judge. After trial in the United States
District Court for the District of New Hampshire, a jury convicted
Stefan R. Gauthier of two counts of possession with intent to
distribute methamphetamine but acquitted him of two related
firearm charges. At sentencing, Gauthier requested credit for
accepting responsibility for the two offenses of conviction
because he had offered to plead guilty to those offenses and,
following the failure of that effort, declined to contest the
offenses at trial. The District Court denied Gauthier’s request,
concluding that Gauthier’s failure to plead guilty to the offenses
of conviction or stipulate to his culpability at trial belied his
claim to have accepted responsibility for the offenses at issue.
We see no error in the District Court’s determination, and affirm
the sentence below.
I.
On November 1, 2018, law enforcement officers observed Stefan
R. Gauthier passed out behind the wheel of a pickup truck in
Tilton, NH. Officers approached Gauthier and, upon discovering
that his license was suspended, searched him. Gauthier was found
to be in possession of 0.659 grams of methamphetamine and $1,375
in cash, and was arrested. In a subsequent search of the pickup
truck, law enforcement identified an additional 356 grams of
methamphetamine, $1,500 in cash, drug paraphernalia including
baggies and a digital scale, and a .22 caliber firearm. One month
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later, on December 2, 2018, law enforcement discovered Gauthier
passed out behind the wheel of a different vehicle, arrested him,
and found 111.1 grams of methamphetamine in his possession.
Based on this conduct, a grand jury indicted Gauthier on two
counts of possession of methamphetamine with intent to distribute.
The grand jury also indicted Gauthier on one count of being a felon
in possession of a firearm and one count of possessing a firearm
in furtherance of a drug trafficking crime, both stemming from the
presence of the firearm recovered from the vehicle during
Gauthier’s November arrest. Finally, the grand jury indicted
Gauthier on an unrelated charge of unlawfully distributing
fentanyl, based on an informant’s assertion that Gauthier provided
fentanyl that resulted in the fatal overdose of a local man
identified as N.R.
Defense counsel attempted unsuccessfully to negotiate a plea
agreement. Gauthier admitted that he was guilty of the two
methamphetamine charges and indicated his willingness to enter a
guilty plea as to those counts. However, Gauthier refused to plead
guilty on the firearm charges, insisting that the gun belonged to
his girlfriend. Gauthier also maintained that he had not provided
the fentanyl that killed N.R. and declined to plead guilty on that
charge. The record suggests that Gauthier attempted to negotiate
the dismissal of one or both of the firearm charges and the
fentanyl charge in exchange for pleading guilty to the
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methamphetamine charges. Prosecutors were unwilling to accept
Gauthier’s proposed terms.
On the eve of trial, the government moved to dismiss without
prejudice the fentanyl count against Gauthier. The court granted
the government’s motion.
At trial on the methamphetamine and firearm counts the parties
stipulated as to several factual elements of the offenses,
including stipulating as to the amount, identity, and authenticity
of the methamphetamine found in Gauthier’s possession. Gauthier
did not stipulate that he possessed or that he intended to
distribute the methamphetamine -- necessary elements of the
offenses with which he was charged -- nor did he admit, at any
point during the trial, that he was guilty of any of the counts
before the court. However, Gauthier did not attempt to rebut the
government’s arguments regarding the methamphetamine offenses and
defense counsel instead focused the examination of the
government’s witnesses on issues related to the firearm offenses.
After a brief trial, the jury convicted Gauthier of both counts of
possession of methamphetamine with intent to distribute, but
acquitted him of both firearm counts.
In advance of sentencing, Gauthier raised a number of
objections to the calculation of his offense level reflected in
the presentence investigation report. Specifically, Gauthier
requested a two-level reduction in offense level for acceptance of
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responsibility, arguing that he was entitled to the reduction in
this instance because he had admitted his guilt to prosecutors,
stipulated to the basic factual elements of the methamphetamine
offenses, and enrolled in drug rehabilitation programs following
his arrests. However, defense counsel admitted to the judge at
sentencing that Gauthier’s decision to proceed to trial on all of
the counts, rather than pleading guilty to the methamphetamine
charges while taking the firearm and fentanyl counts to trial, had
been a “tactical” judgment. Gauthier further objected to the
sentencing report’s inclusion of the fentanyl charge that had been
dismissed and the firearm charges of which he had been acquitted,
charges that the report characterized as relevant conduct for the
purpose of sentencing.
The government, for its part, opposed Gauthier’s objections.
With respect to the acceptance of responsibility credit, the
government argued that Gauthier’s failure to plead guilty to the
methamphetamine offenses precluded the availability of the
sentencing credit. The government also argued that Gauthier’s
denial of responsibility for other relevant conduct --
specifically, the fentanyl charge that was dismissed on the eve of
trial –- would render him ineligible for the acceptance of
responsibility credit even if he had otherwise expressed
contrition with respect to the methamphetamine offenses.
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Based on this record, the sentencing judge determined that
Gauthier was not entitled to the acceptance of responsibility
credit. The District Court sentenced Gauthier to 180 months
imprisonment, within the Sentencing Guideline range of 168 to 210
months and below the government’s recommendation of 210 months.
Gauthier now appeals his sentence, arguing that the District
Court erred in denying him credit for acceptance of responsibility.
II.
When reviewing a sentence on appeal, “we assay the district
court’s factfinding for clear error and afford de novo
consideration to its interpretation and application of the
sentencing guidelines.” United States v. Flores-Machicote, 706
F.3d 16, 20 (1st Cir. 2013). Because “[t]he sentencing judge is
in a unique position to evaluate a defendant’s acceptance of
responsibility,” U.S.S.G. § 3E1.1 cmt. n.5 (U.S. Sentencing Comm’n
2021), we will set aside the district court’s determination only
if it lacks an “articulable basis or foundation” in the record.
United States v. Bennett, 37 F.3d 687, 696 (1st Cir. 1994).
The Guidelines provide for a two-level decrease in a
defendant’s offense level where “the defendant clearly
demonstrates acceptance of responsibility for his offense.”
U.S.S.G. § 3E1.1(a). “In determining whether a defendant
qualifies” for the sentencing reduction, a sentencing judge makes
a holistic assessment based on a defendant’s post-offense conduct
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as well as his statements about the crime of conviction and other
relevant conduct. See U.S.S.G. § 3E1.1 cmt. n.1.
A defendant who is convicted at trial after denying “essential
factual elements of guilt” generally is not entitled to the
acceptance of responsibility reduction. U.S.S.G. § 3E1.1 cmt.
n.2. A “conviction by trial . . . does not automatically preclude”
a finding of acceptance of responsibility. Id. But “proceeding
to trial creates a rebuttable presumption” that the defendant has
not accepted responsibility, which the defendant bears the burden
of overcoming. United States v. Garrasteguy, 559 F.3d 34, 38-39
(1st Cir. 2009). As a result, we generally will “sustain a
district court that denies acceptance of responsibility to a
defendant who declined to plead guilty.” United States v. De Leon
Ruiz, 47 F.3d 452, 456 (1st Cir. 1995).
In “rare situations,” a defendant may be found to have
“clearly demonstrate[ed] an acceptance of responsibility for his
criminal conduct” despite having “exercise[d] his constitutional
right to a trial.” U.S.S.G. § 3E1.1 cmt. n.2. By way of example,
the guideline commentary states that a defendant who goes to trial
to raise “issues that do not relate to factual guilt” -- such as
challenges to the constitutionality or applicability of a statute
-– may be entitled to the acceptance of responsibility credit.
Id. But this is merely an example, see De Leon Ruiz, 47 F.3d at
455, and we have previously recognized that a defendant who fails
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to acknowledge his factual guilt may be entitled to the acceptance
of responsibility credit “in unusual circumstances.” United
States v. Hines, 196 F.3d 270, 274 (1st Cir. 1999).
Gauthier argues that his attempt to negotiate a guilty plea
and his stipulation as to certain elements of the methamphetamine
offenses present one such unusual circumstance. But our
precedents, and persuasive authority from our sister circuits,
belie that contention. We have never reversed a district court’s
denial of the acceptance of responsibility credit where a defendant
failed to admit factual guilt at or before trial. Cf. United States
v. Ellis, 168 F.3d 558, 560, 564-65 (1st Cir. 1999) (remanding for
resentencing where the defendant admitted in his opening argument
and during his testimony his role in one crime of which he was
convicted and the district court’s reasoning for denying the credit
at sentencing was unclear).
As for persuasive authority from sister circuits, we have
considered three cases involving remands for resentencing based on
the acceptance of responsibility credit despite the defendants’
failure to admit guilt through a plea or at trial. However, all
three involved factual circumstances dissimilar to our own and in
two the courts also analyzed a prior version of the sentencing
guidelines containing the following provision that has since been
removed: "A defendant may be given consideration under this section
without regard to whether his conviction is based upon a guilty
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plea or a finding of guilt by the court or jury or the practical
certainty of conviction at trial." U.S.S.G. § 3E1.1(b) (1990,
1991). See United States v. Guerrero-Cortez, 110 F.3d 647, 656
(8th Cir. 1997) (remanding for reevaluation of acceptance credit
where defendant offered to plead guilty to trafficking two
kilograms, the government refused the offer absent a plea involving
five kilograms, and the court ultimately found defendant
responsible for two kilograms)1; United States v. McKinney, 15 F.3d
849, 851-52 & nn.2-3 (9th Cir. 1994) (relying on prior guidelines
provision and remanding with instruction to award acceptance
credit where defendant tried, both before and after jury selection,
to change his plea to guilty but the court denied him the
opportunity); United States v. Rodriguez, 975 F.2d 999, 1008 (3d
Cir. 1992) (relying on prior guidelines provision and remanding
for reevaluation of acceptance credit where the government revoked
two co-defendants’ plea agreements after it failed to reach a plea
agreement with the third co-defendant).2
1 The defendant in Guerrero-Cortez attempted to plead guilty to a
drug crime involving a specified lesser quantity (of which he was
ultimately convicted), whereas Gauthier attempted to plead guilty
to drug crimes (of which he was convicted), but only if the
government dismissed the related firearm counts. Unlike the
defendant in Guerrero-Cortez, who would have but practically could
not have plead guilty to his ultimate crime of conviction, Gauthier
could have but chose not to for tactical reasons.
2 Rodriguez also specifically held, in contrast to the facts of
the instant case, that the trial court "fail[ed] to consider the
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By contrast, where, as here, a defendant “retain[s] the option
to plead guilty” to one or more charges while contesting others,
and instead chooses “to roll the dice,” a sentencing court acts
within its discretion in finding that the defendant is not entitled
to the acceptance of responsibility credit. De Leon Ruiz, 47 F.3d
at 455.
We see ample support in the record for the District Court’s
finding that Gauthier had the opportunity to plead guilty and
accept all of the factual elements of the offenses of conviction
but failed to do so. The District Court noted that Gauthier
stipulated to the amounts and identity of the methamphetamine
seized from his person and did not otherwise contest the
Government’s argument with respect to the methamphetamine charges.
But the District Court reasonably concluded that this only amounted
to a partial acceptance of responsibility, given Gauthier’s
failure to admit to possessing either the methamphetamine or the
intent to distribute it. Furthermore, defense counsel
acknowledged at sentencing that Gauthier could have plead guilty
on the methamphetamine charges while contesting the fentanyl and
firearm charges, and stated that “from a tactical viewpoint
[counsel] felt it was better” for Gauthier to proceed to trial on
all charges. As we have previously made clear, this sort of pre-
reasons for which [the defendants] refused to plead." 975 F.2d
at 1009.
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trial calculation is strong evidence militating against credit for
acceptance of responsibility. See De Leon Ruiz, 47 F.3d at 455.
Based on this record, it was not error to deny Gauthier the
acceptance of responsibility credit.3
III.
For the foregoing reasons, the District Court’s order
sentencing Gauthier to 180 months in prison is affirmed.
3 To the extent that the Appellant argues that the District Court
mistakenly believed that it was precluded from awarding the
acceptance of responsibility credit where no guilty plea was
entered, we find this argument unpersuasive. In his sentencing
brief, as here, Gauthier heavily relied upon the relevant
guidelines commentary to establish that “[c]onviction by trial
. . . does not automatically preclude a defendant from
consideration for [the acceptance] reduction.” U.S.S.G. § 3E1.1
cmt. n.2. At sentencing, the District Court expressly noted that
it had read Gauthier's brief, but that it agreed with the
government that Gauthier was not entitled to the credit because he
did not stipulate to essential elements of the charges against
him. We can infer from this record that the District Court
understood and applied the correct standard but concluded that
Gauthier's conduct did not warrant credit for acceptance of
responsibility. See United States v. Jiminez-Beltre, 440 F.3d
514, 519 (1st Cir. 2006), abrogated on other grounds, Rita v.
United States, 551 U.S. 338 (2007) (“[A] court's reasoning can
often be inferred by comparing what was argued by the parties or
contained in the pre-sentence report with what the judge did.”);
see also United States v. DelPiano, 183 F. App’x 9, 10-11 (1st
Cir. 2006) (unpublished) (inferring that the sentencing court
“rejected [defendant’s] request for an acceptance-of-
responsibility reduction for the primary reason argued by the
government,” where its denial “was consistent with [those]
implicit reasons”). This situation stands in contrast to that in
Ellis, in which this court vacated the defendant’s sentence and
remanded for resentencing in part because it was “possible” that
the district court had misunderstood and incorrectly applied the
standard contained in U.S.S.G § 3E1.1. United States v. Ellis,
168 F.3d 558, 560 (1st Cir. 1999).
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