United States v. Jeffrey Green

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30227
Plaintiff-Appellee,
D.C. No.
v. 3:16-cr-00063-SLG-1
JEFFREY R. GREEN, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Argued and Submitted June 12, 2019
Anchorage, Alaska
Filed August 21, 2019
Before: A. Wallace Tashima, William A. Fletcher,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
2 UNITED STATES V. GREEN
SUMMARY *
Criminal Law
Vacating a sentence and remanding for resentencing, the
panel held that the district court erred by concluding that it
could not listen to the defendant’s allocution before
determining whether a reduction of acceptance of
responsibility was warranted under the Sentencing
Guidelines, and that this misapprehension was plain error
that affected the defendant’s substantial rights and seriously
affected the fairness of the proceedings.
COUNSEL
Krista Hart (argued), Sacramento, California, for Defendant-
Appellant.
Jonas M. Walker (argued), Assistant United States Attorney;
Brian Schroder, United States Attorney; United States
Attorney’s Office, Anchorage, Alaska; for Plaintiff-
Appellee.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. GREEN 3
OPINION
BERZON, Circuit Judge:
Must a district court decide on a defendant’s eligibility
for an acceptance-of-responsibility reduction in his
Guidelines level before listening to the defendant’s
allocution? Our answer is “No.”
I
On June 3, 2016, a group of police officers went to
Jeffrey Green’s apartment in Anchorage, Alaska, and
arrested Green on an outstanding warrant. While patting him
down, an officer found a loaded revolver in Green’s pocket.
During a later search, the officers found two pistols stored
inside a safe in a storage closet accessible from the
apartment. Both pistols had been reported stolen.
The government charged Green, who had a long history
of felony convictions, with a single count of possession of a
firearm as a felon in violation of 18 U.S.C. § 922(g)(1). Six
months later, Green pleaded guilty. During his plea
colloquy, Green admitted that he possessed the single
revolver found in his pocket during the arrest and that he was
a felon. But Green did not admit to all the conduct alleged
in the single-count indictment. He made no admissions—or
statements of any kind—regarding either of the pistols found
in the safe. 1 The district court found that Green’s admission
regarding the revolver, coupled with his admission regarding
1
The government offered Green a plea deal contingent on Green
admitting possession of all three firearms. Green rejected this offer and
instead pleaded guilty without an agreement with the government.
4 UNITED STATES V. GREEN
his criminal history, provided a sufficient factual basis for
the plea under Federal Rule of Criminal Procedure 11(b)(3).
After Green pleaded guilty, the district court directed the
probation department to prepare a presentence report. That
report concluded that Green should be assessed an offense
level under the Sentencing Guidelines premised on
possession of a total of three guns, two of which were stolen.
See U.S. Sentencing Guidelines Manual § 2K2.1(b)(1),
(b)(4)(A) (U.S. Sentencing Comm’n 2016). 2 The
presentence report also concluded that Green was not
entitled to any reduction for accepting responsibility because
he had not admitted possession of the two pistols found in
the safe. See id. § 3E1.1(a). Green objected to each of these
conclusions. He primarily argued that the government
“ha[d] not proven that the two additional firearms found in
the storage closet were in Green’s possession.”
Because Green so objected, the court held an evidentiary
hearing to determine whether Green possessed those
firearms. See id. § 6A1.3 cmt. At this hearing, the
government introduced a recording of Green speaking to a
woman by phone after he was arrested. Green asked the
woman, “Did they get my safe?” The woman replied, “I
don’t know. There was a locksmith. They had a locksmith
come there. Yes. Shane said they got into it.” Green then
responded: “Oh, my God.” Based on this audio and other
evidence introduced by the government the district court
concluded that the government had shown by a
2
These Guidelines sections provide that “[i]f the offense involved
three [to seven] firearms, increase” the offense level by two levels,
Guidelines Manual § 2K2.1(b)(1), and that “[i]f any firearm [involved in
the offense] was stolen, increase [the offense level] by 2 levels,” id.
§ 2K2.1(b)(4)(A).
UNITED STATES V. GREEN 5
preponderance of the evidence that Green possessed the two
pistols, and that he should thus be assessed the offense level
for possession of stolen guns and for possession of three or
more guns. The court left open whether Green should be
awarded a reduction for accepting responsibility pursuant to
Sentencing Guidelines section 3E1.1.
Two weeks later, on November 3, 2017, the district court
held a second sentencing hearing. At the outset of this
second hearing, the court entertained argument as to whether
it should find that Green accepted responsibility under
section 3E1.1. During argument, defense counsel told the
court that Green “intends to allocute to this Court.” Counsel
further stated that he thought “the only way [Green will] be
able to express [the] contrition [required by section 3E1.1]
. . . is in that allocution.”
After hearing counsel’s argument but before hearing
Green’s allocution the court announced its conclusion
regarding the acceptance-of-responsibility reduction—that
the reduction was not appropriate. The sentencing court
explained that it reached this conclusion largely because it
viewed this case as analogous to United States v. Ginn,
87 F.3d 367 (9th Cir. 1996), which held that an acceptance-
of-responsibility reduction was appropriate only where a
defendant charged with multiple counts had accepted
responsibility for all of the “counts of which he is
convicted.” Id. at 370; cf. United States v. Garrido, 596 F.3d
613, 619 (9th Cir. 2010) (holding that to remain eligible for
the acceptance-of-responsibility reduction, a defendant need
not accept responsibility for counts excluded from grouping
under the Guidelines).
The district court recognized that “evaluating the
acceptance[-of-responsibility reduction] . . . after an
allocution might be helpful” in some circumstances. But it
6 UNITED STATES V. GREEN
believed that under our case law, it could not hear from
Green before determining the applicability of the reduction.
In the district court’s view, “the Ninth Circuit very clearly
instructs district judges to determine the guidelines at the
outset of sentencing proceeding[s],” and so before hearing
from the defendant.
After explaining its decision regarding the acceptance-
of-responsibility reduction, the court heard further argument
from counsel on the appropriate sentence under the statutory
sentencing factors. See 18 U.S.C. § 3553(a). It then
provided Green his opportunity to speak. During his
allocution, Green explained at length that he was “extremely
sorry” for his actions.
Immediately following the allocution, the court
sentenced Green to a 108-month term of imprisonment. The
imposed sentence was within the range of 100 to 120 months
recommended by the Guidelines calculation adopted by the
district court. Had Green received the acceptance-of-
responsibility reduction, the Guidelines recommended term
would have been between 77 and 96 months. Green appeals
his sentence.
II
At issue in this appeal is the district court’s decision not
to reduce Green’s offense level under section 3E1.1 of the
Sentencing Guidelines based on acceptance of
responsibility. We review any factual finding embedded in
that determination for clear error. United States v.
Rodriguez, 851 F.3d 931, 949 (9th Cir. 2017). But we
“review de novo whether the district court misapprehended
the law with respect to the acceptance of responsibility
reduction.” United States v. Cortes, 299 F.3d 1030, 1037
UNITED STATES V. GREEN 7
(9th Cir. 2002); see also United States v. Doe, 778 F.3d 814,
821 (9th Cir. 2015).
A misapprehension of law occurred here. The district
court believed that it had to determine whether Green had
accepted responsibility before allowing Green his
opportunity to allocute. That is not so.
Green did not raise this error in the district court or in his
initial briefing, so we review for plain error. See United
States v. Sum of $185,336.07 U.S. Currency, 731 F.3d 189,
195 (2d Cir.2013); United States v. McKinney, 707 F.2d 381,
383 (9th Cir. 1983). We conclude that this misapprehension
of law constituted plain error, vacate Green’s sentence, and
remand for resentencing.
A
Before addressing the merits of this appeal, a brief
review of the acceptance-of-responsibility reduction is
helpful. Sentencing Guidelines section 3E1.1(a) calls for
reducing a defendant’s offense level by two points when the
district court finds that the defendant has “clearly
demonstrate[d] acceptance of responsibility for his offense.”
“The primary goal of the reduction is to reward defendants
who are genuinely contrite.” United States v. McKinney,
15 F.3d 849, 853 (9th Cir. 1994). When a defendant’s
“statements and conduct ma[k]e it clear that his contrition
[is] sincere, he [is] entitled to the reduction,” Cortes,
299 F.3d at 1038, even if that contrition is expressed at the
“eleventh[]hour,” United States v. Hill, 953 F.2d 452, 461
(9th Cir. 1991).
The Sentencing Guidelines commentary provides courts
with guidance on how to evaluate whether a defendant has
demonstrated the requisite contrition. The Guidelines
8 UNITED STATES V. GREEN
commentary instructs that courts may consider whether the
defendant has, for example, “truthfully admitt[ed] the
conduct comprising the offense(s) of conviction,”
“voluntar[ily] terminat[ed] or withdraw[n] from criminal
conduct or associations,” or “voluntar[illy] pa[id] restitution
prior to adjudication of guilt.” See Guidelines Manual
§ 3E1.1 cmt. n.1.
The Guidelines and our case law also provide specific
guidance on how sentencing courts should evaluate the
acceptance-of-responsibility reduction where, as here, the
defendant has entered a plea of guilty. The Guidelines
commentary explains: “Entry of a plea of guilty prior to the
commencement of trial combined with truthfully admitting
the conduct comprising the offense of conviction, and
truthfully admitting or not falsely denying any additional
relevant conduct for which he is accountable . . . will
constitute significant evidence of acceptance of
responsibility.” Id. § 3E1.1 cmt. n.3. When a district court
determines that a defendant’s plea was adequately supported
by the defendant’s admissions, as the district court did here,
that determination “compels the inference that [the
defendant] had ‘truthfully admitt[ed] the conduct
comprising the offense of conviction.’” United States v.
Vance, 62 F.3d 1152, 1158 (9th Cir. 1995) (second alteration
in original). Although the Guidelines thus suggest that a
guilty plea supported by truthful admissions by the
defendant creates a presumption that the defendant will
receive the acceptance-of-responsibility reduction, this
presumption can be negated by other evidence that suggests
the defendant has not in fact accepted responsibility for his
actions. Guidelines Manual § 3E1.1 cmt. n.3. Such
inconsistent conduct can include, for example, “falsely
den[ying], or frivolously contest[ing], relevant conduct that
the court determines to be true.” Id. § 3E1.1 cmt. n.1(A).
UNITED STATES V. GREEN 9
B
The district court in this case did not cite any specific
authority to support its premise that a sentencing court must
reach its conclusion regarding acceptance of responsibility
before hearing from the defendant. The government argues
on appeal that Kimbrough v. United States, 552 U.S. 85, 108
(2007), Gall v. United States, 552 U.S. 38, 49 (2007), and
United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en
banc), preclude a sentencing court from hearing a
defendant’s allocution before determining whether an
acceptance-of-responsibility reduction is appropriate.
None of these cases so limits a sentencing court.
Kimbrough, Gall, and Carty each make clear that sentencing
courts “must treat the Guidelines as the ‘starting point and
the initial benchmark’” during sentencing. Kimbrough,
552 U.S. at 108 (quoting Gall, 552 U.S. at 49); see also Rita
v. United States, 551 U.S. 338, 347–38 (2007). Carty
explained that “[a]ll sentencing proceedings are to begin by
determining the applicable Guidelines range.” 520 F.3d at
991. Likewise, Gall states that “a district court should begin
all sentencing proceedings by correctly calculating the
applicable Guidelines range.” 552 U.S. at 49.
The language in these cases, taken out of context, can
perhaps be read to comport with the district court’s
understanding. In context, however, it is apparent that these
cases were not addressing the question before us—whether
a district court must begin a sentencing hearing with a
Guidelines calculation rather than announcing it once (1) all
necessary factual information has been presented, (2) all
relevant factual issues have been resolved, and (3) all
pertinent argument has been heard.
10 UNITED STATES V. GREEN
The cases explain that when sentencing a defendant, a
district court must determine the recommended sentencing
range under the Sentencing Guidelines before making a
holistic and individualized determination as to the
appropriate sentence under those Guidelines and the
18 U.S.C. § 3553(a) factors. Carty, 520 F.3d at 991. It is in
that sense that the ultimate “sentencing proceedings”—that
is, the determination and announcement of the sentence to
be imposed—“are to begin by determining the applicable
Guidelines range.” Id. None of these cases requires a district
court to make a final calculation as to the appropriate
Guidelines range at the outset of a sentencing hearing, even
if the judge lacks the necessary information and legal
argumentation to make an accurate, well-considered
determination.
Indeed, in this case the district court did conduct an
evidentiary hearing to determine whether it was appropriate
to impose additional offense levels for the possession of
stolen firearms, and the possession of three or more firearms.
If Kimbrough, Gall, and Carty set forth the rigid rule the
government now suggests, that rule would also make
holding such an evidentiary hearing improper. Thankfully,
Kimbrough, Gall, and Carty do not set forth such a
counterproductive requirement. Neither the Guidelines nor
the pertinent case law prefers ignorance over appropriate
information collection and considered judicial reflection
before calculating the applicable Guidelines range.
Three additional considerations support our conclusion
that a district court can hear from a defendant before
determining whether an acceptance-of-responsibility
reduction is indicated under the Guidelines.
First, as a matter of practice, sentencing courts
frequently consider the defendant’s allocution when
UNITED STATES V. GREEN 11
considering whether an acceptance-of-responsibility
reduction is warranted under the Guidelines. See, e.g.,
United States v. Goodson, 920 F.3d 1209, 1211 (8th Cir.
2019); United States v. Leasure, 122 F.3d 837, 841 (9th Cir.
1997); Hill, 953 F.2d at 461, United States v. Watt, 910 F.2d
587, 589, (9th Cir. 1990); see also United States v. Harvey,
597 F. App’x 455, 456 (9th Cir. 2015); United States v.
Kamsomphou, 111 F. App’x 937, 940 (9th Cir. 2004);
United States v. Thompson, 49 F. App’x 749, 750 (9th Cir.
2002).
Second, the Sentencing Guidelines recognize that, in
some cases, a “factor important to the sentencing
determination [will be] reasonably in dispute.” Guidelines
Manual § 6A1.3(a). The Guidelines state that, in these
circumstances, “the parties shall be given an adequate
opportunity to present information to the court regarding that
factor.” Id. (emphasis added). Thus, the Guidelines
recognize that in some circumstances, “determining the
applicable Guidelines range,” Carty, 520 F.3d at 991, may
require a sentencing judge to evaluate affidavits, hear
testimony or hold argument, depending on the nature of the
factor in dispute. See Guidelines Manual § 6A1.3(a).
Third, and relatedly, when a court must resolve “disputed
sentencing factors” as part of its sentencing determination,
the Guidelines state that the sentencing court “shall resolve
[those] disputed . . . factors . . . in accordance with [Federal]
Rule [of Criminal Procedure] 32(i).” Guidelines Manual
§ 6A1.3(b) (emphasis added). Federal Rule of Criminal
Procedure 32(i)(4)(A)(ii), in turn, requires the sentencing
court to “address the defendant personally in order to permit
the defendant to speak or present any information to mitigate
the sentence.” This rule, like its longstanding common law
predecessor, affords the defendant the right “to present any
12 UNITED STATES V. GREEN
information in mitigation of punishment.” Green v. United
States, 365 U.S. 301, 304 (1961). There is particular need to
give the defendant an opportunity to speak when a
sentencing court must evaluate the defendant’s character and
credibility. In such a circumstance, even the “most
persuasive counsel may not be able to speak for a defendant
as the defendant might, with halting eloquence, speak for
himself.” Id.A sentencing court is faced with precisely such a
character-evaluation situation when assessing whether to
apply the acceptance-of-responsibility reduction. The
court’s decision on the reduction turns on whether the
defendant has expressed contrition and whether such
expression is “sincere.” Cortes, 299 F.3d at 1038. A
defendant can hardly demonstrate sincere contrition to the
court through his allocution if he cannot speak until after the
sentencing court has already made up its mind as to whether
he has done so.
C
On appeal, Green’s counsel did not initially argue that
the district court misconstrued the law by concluding that it
could not first hear from Green before determining whether
he had accepted responsibility.3 Thus, this error is subject
to plain error review. 4 See United States v. Depue, 912 F.3d
1227, 1233 (9th Cir. 2019) (en banc). Under plain error
3
Green raised this basis for vacating the sentence only after
receiving a request from this court for additional briefing on the issue.
4
The government argues that Green has waived any challenge to the
timing of the district court’s consideration of the acceptance-of-
responsibility reduction. But it cites no evidence that Green
affirmatively waived the claim. Depue, 912 F.3d at 1233.
UNITED STATES V. GREEN 13
review, a reviewing court may grant relief where the district
court erred so long as the error is contrary to the law at the
time of the appeal, affects the defendant’s substantial rights,
and seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id. at 1232. We conclude
that each of these conditions is met.
First, the district court’s conclusion was undoubtably
contrary to the law. As already discussed, no authority
supports the proposition that a sentencing court cannot first
hear from a defendant before determining whether a
reduction for acceptance of responsibility is appropriate.
And, all other relevant considerations—the practice of
sentencing courts, the Sentencing Guidelines, and Rule 32(i)
of the Federal Rules of Criminal Procedure—indicate that
district courts regularly do and regularly should consider a
defendant’s allocution before determining whether to apply
the acceptance-of-responsibility reduction.
The district court’s error also affected Green’s
substantial rights and seriously affected the fairness of the
judicial proceedings. In the sentencing context, these two
considerations will normally merge. An error “affects
substantial rights if the defendant can ‘demonstrate a
reasonable probability that [he] would have received a
different sentence if the district court had not erred.’” Id.
at 1234 (quoting United States v. Joseph, 716 F.3d 1273,
1280 (9th Cir. 2013)) (second alternation in original).
Similarly, an error seriously affects the fairness of a
sentencing proceeding if that error “may have increased the
length of a defendant’s sentence.” United States v. Tapia,
665 F.3d 1059, 1063 (9th Cir. 2011). In other words, we
must conclude that there is a reasonable probability that
Green could receive a lower sentence on remand once the
14 UNITED STATES V. GREEN
district court considers his allocution. There is such
probability.
To address the reasonable probability of a lower
sentence, we first address Green’s contention that the district
court erred by comparing the circumstances in this case to
the circumstances in United States v. Ginn. When stating its
conclusion that Green was not eligible for the acceptance-of-
responsibility reduction, the district court reasoned that Ginn
counsels against granting an acceptance-of-responsibility
reduction where a defendant has pleaded guilty to a single
count of possession of firearms, but does not admit to
possession of all the firearms alleged in the indictment. If
the district court properly analogized to Ginn, then there
would be little probability that the district court would
resolve the issue of Green’s acceptance of responsibility in
Green’s favor on remand.
We conclude it was error to rely on Ginn to determine
whether the acceptance-of-responsibility reduction was
appropriate. Ginn and Garrido, read together, make a
defendant ineligible for an acceptance-of-responsibility
reduction where he has not accepted responsibility for all
counts of which he was convicted, excluding counts that
cannot be grouped under the Guidelines. Ginn, 87 F.3d at
370; Garrido, 596 F.3d at 619. That rule has little
applicability to this case. Here, the government charged
Green with only one count. Three guns were (superfluously)
charged in that single count, and Green pleaded guilty to that
count. Green was not convicted of possessing three guns,
and he had no obligation to admit to possessing all three to
accept responsibility for the only crime of which he was
convicted. See Vance, 62 F.3d at 1158; see also Guidelines
Manual § 3E1.1 cmt. n.1(A).
UNITED STATES V. GREEN 15
As the rule set forth in Ginn and Garrido regarding
acceptance-of-responsibility reductions for defendants
convicted of multiple counts is neither binding nor relevant
in this case, the district court will on remand have to
reconsider whether the acceptance-of-responsibility
reduction is appropriate. In making that determination,
Green’s posture concerning the two guns found in the safe
may have some bearing. The two guns in the safe were
found by a preponderance of the evidence to be in Green’s
possession and so to be related conduct. See Guidelines
Manual §§ 1B1.3, 3E1.1 cmt. n.1(A). “A defendant is not
required to volunteer, or affirmatively admit, relevant
conduct beyond the offense of conviction in order to obtain
a[n acceptance-of-responsibility] reduction.” Id. § 3E1.1
cmt. n.1(A). But “a defendant who falsely denies, or
frivolously contests, relevant conduct that the court
determines to be true has acted in a manner inconsistent with
acceptance of responsibility.” Id.; see also id. § 1B1.3.
The district court specifically found that Green did not
falsely deny possession of these two guns. But it did not
determine whether Green “frivolously contest[ed]”
possession of these guns. Thus, on remand the district court
can consider whether Green has “frivolously contest[ed]”
possession of the two other guns, see United States v.
Ramos-Medina, 706 F.3d 932, 942 (9th Cir. 2013), or
whether he has otherwise “acted in a manner inconsistent
with acceptance of responsibility.” Guidelines Manual
§ 3E1.1 cmt. n.1(A); see also id. § 3E1.1 cmt. n.3. If he has
engaged in such inconsistent conduct, the Guidelines direct
that the court should consider whether such inconsistent
conduct outweighs the affirmative evidence indicating
Green has accepted responsibility, including his decision to
enter “a plea of guilty prior to the commencement of trial”
16 UNITED STATES V. GREEN
and “admit[] the conduct comprising the offense of
conviction.” Id. § 3E1.1 cmt. n.3.
Under these standards, the district court could conclude,
taking into account the allocution, that Green meets the
acceptance-of-responsibility requirements with regard to
related conduct. There is at least a reasonable probability
that after allocution, the district court could determine an
acceptance-of-responsibility reduction appropriate. And
because a decision to grant an acceptance-of-responsibility
reduction would likely lead to a less severe sentence for
Green, the failure to consider Green’s allocution—coupled
with the district court’s faulty reliance on Ginn—affected
Green’s substantial rights and seriously affected the fairness,
integrity, or public reputation of judicial proceedings.
* * *
We hold that the sentencing court erred by concluding
that it could not first hear from the defendant before
determining whether a reduction for acceptance of
responsibility was warranted under the Sentencing
Guidelines. We also conclude that this misapprehension was
plain error and so vacate the sentence and remand for
resentencing.
Sentence VACATED and REMANDED for
resentencing.