United States v. Alfonzo Forte

81 F.3d 215, 317 U.S. App. D.C. 120, 1996 U.S. App. LEXIS 7806, 1996 WL 174569
CourtCourt of Appeals for the D.C. Circuit
DecidedApril 16, 1996
Docket95-3076
StatusPublished
Cited by8 cases

This text of 81 F.3d 215 (United States v. Alfonzo Forte) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Alfonzo Forte, 81 F.3d 215, 317 U.S. App. D.C. 120, 1996 U.S. App. LEXIS 7806, 1996 WL 174569 (D.C. Cir. 1996).

Opinion

Opinion for the Court filed by Circuit Judge WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

Defendant raises the question whether the federal Sentencing Guidelines require a court to deny a defendant a sentence reduction for “acceptance of responsibility” when the defendant — 'while pleading guilty — lies about “relevant conduct.” While we doubt that the guidelines create such an absolute bar to the reduction, ultimately we need not resolve the issue. The defendant’s failure to preserve an objection at the time he was sentenced limits our review to plain error, which defendant has not shown.

Defendant Alfonzo Forte escaped from the District of Columbia jail on January 19, 1995 by more or less walking out of it. He was caught three days later and ultimately pled guilty to escape and conspiracy. 18 U.S.C. §§ 751, 371 (1994). His coeonspirator was his wife and codefendant, Janice Forte, who worked at the jail as a correctional officer under the name Janice Hubbard and was on duty when Forte escaped.

At his plea hearing, Forte claimed that his wife had simply been waiting outside in a car to drive him away. His only help in getting to the car, he said, had come from his prisoner ID badge from another prison facility, which he had flashed authoritatively to a series of slow-witted guards. The govern *217 ment disputed Forte’s account, assigning Janice Forte a more central role in the escape. The court accepted his guilty plea, as both accounts contained facts sufficient to establish his guilt.

At sentencing Forte sought a two-level reduction in his base offense level under the Sentencing Guidelines for “acceptance of responsibility” for his crimes. See U.S. Sen-' fencing Guidelines (“U.S.S.G”) § 3E1.1 (1995). The government opposed the request, presenting evidence — not disputed on appeal — supporting its prior contention that Janice Forte had done far more than drive a getaway car: she had escorted the defendant out of the jail herself, after providing him with a set of civilian clothes and a secret place in which to change into them.

The district court found that Forte had lied about the extent of his wife’s participation in the escape, and that such participation was conduct relevant to his crimes. Citing this circuit’s opinion in United States v. Taylor, 937 F.2d 676 (D.C.Cir.1991), and the Guidelines themselves, the court appeared to take the view that Forte’s lies, rather than being merely a factor to be weighed in determining whether Forte had truly accepted responsibility for his wrongs, absolutely compelled denial of a reduction:

But I do require and the guidelines require and the Taylor case requires a credible and complete explanation for the conduct surrounding the defendant’s offense of conviction.
Because of the credible and complete explanation test, the issue for this hearing then became whose version of the escape from the D.C. jail ... would be correct.

Sentencing Hearing at 175. Forte reads this as manifesting a view that Forte’s lies were absolutely fatal to his request for an “acceptance of responsibility” reduction. We assume the point in Forte’s favor; if that was not the judge’s meaning, he sentenced in full accord with the interpretation of the Guidelines that Forte urges here.

Assuming this was in fact the court’s basis for decision, Forte did not object to the idea or give the district court a competing view of the Guidelines. His counsel argued that to earn the downward adjustment Forte need only make an admission of the core elements constituting the crime (i.e., those sufficient for a guilty plea) and express a willingness “to accept the consequences of [his] admissions.” As counsel expressed it, the defendant could satisfy this latter constraint mainly (perhaps exclusively) by refraining from saying anything false that would, if accepted as true, lessen his own sentence. In other words, counsel directed his efforts to trying to define any false aspect of Forte’s account of his escape as irrelevant under § 3E1.1. Neither before nor after the court made the statements quoted above, which Forte now says show its commitment to the view that a defendant’s lies about relevant conduct absolutely bar an “acceptance of responsibility” reduction, did counsel assert the contrary. The district court’s adoption of that theory, assuming it did so, is thus renewable only for plain error. United States v. Saro, 24 F.3d 283, 286 (D.C.Cir.1994).

To meet such a standard Forte must first show that the district court made an error that was obvious — “so ‘plain’ the trial judge and prosecutor were derelict in countenancing it, even absent the defendant’s timely assistance in detecting it.” Id. (quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982)). He must also carry the burden of showing that the error was prejudicial, having “affected the outcome of the District Court proceedings.” Id. Forte can do neither.

First, any error by the court was not obvious. The Guidelines and cases are somewhat murky on the effect of a defendant’s lying about relevant conduct upon his ability to receive § 3El.l’s acceptance of responsibility adjustment. Application Note 1 of § 3E1.1 lists a number of nonexhaustive “appropriate considerations” to help determine whether a defendant qualifies for the reduction; these include, for example, voluntary payment of restitution to any victims and prompt, voluntary surrender after commission of the crime. U.S.S.G. § 3E1.1 Application Note 1. The first consideration listed relates to truthful admissions of the defendant’s conduct:

*218 (a) truthfully admitting the conduct comprising the offense(s) of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct). Note that a defendant is not required to volunteer, or affirmatively admit, relevant conduct beyond the offense of conviction in order to obtain a reduction under [§ 3E1.1(a)]. A defendant may remain silent in respect to relevant conduct beyond the offense of conviction without affecting his ability to obtain a reduction under this subsection. However, 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. Application Note 1(a) (emphasis added).

The note carefully distinguishes between “conduct comprising the offense of conviction” and “additional relevant conduct for which the defendant is accountable under § 1B1.3.” The parties have both argued the case before us as if Forte’s lies related only to the latter. We are not so sure.

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Bluebook (online)
81 F.3d 215, 317 U.S. App. D.C. 120, 1996 U.S. App. LEXIS 7806, 1996 WL 174569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-alfonzo-forte-cadc-1996.