United States v. Donald W. Wright

Eleventh Circuit

United States v. Donald W. Wright

133 F.3d 1412, 1998 U.S. App. LEXIS 1117, 1998 WL 29636

CourtCourt of Appeals for the Eleventh Circuit

DecidedJanuary 28, 1998

Docket95-8397

StatusPublished

Cited by38 cases

This text of 133 F.3d 1412 (United States v. Donald W. Wright) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh 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. Donald W. Wright, 133 F.3d 1412, 1998 U.S. App. LEXIS 1117, 1998 WL 29636 (11th Cir. 1998).

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OPINION ON REHEARING

COX, Circuit Judge:

The court sua sponte grants rehearing as to the sentencing issue (and only as to the sentencing issue) addressed in its previous opinion, published at 117 F.3d 1265 (11th Cir.1997). Part II.D of that opinion, 117 F.3d at 1275-77, is accordingly vacated, and the following put in its stead.

Donald Wright was convicted following a plea of guilty to one count of possessing machine guns in violation of 18 U.S.C. § 922(o) and one count of possessing unregistered destructive devices in violation of 26 U.S.C. § 5861(d). Wright requested, and the Government recommended as part of a plea bargain, that the district court adjust Wright’s offense level downward for acceptance of responsibility . under U.S.S.G. § 3E1.1. The court refused to do so. Wright asserts that the district court’s refusal to adjust his offense level downward improperly penalized him for the constitutional challenges he has asserted.¹ We reject that contention for two reasons.

First, as we read the record, the district court’s refusal rested mainly on the finding of fact that Wright’s demeanor did not evince remorse. In determining whether a defendant is entitled to an acceptance of responsibility adjustment, a district court may properly consider “the offender’s recog-mtion of the wrongfulness of Ms conduct, Ms remorse for the harmful consequences of that conduct, and his willingness to turn away from that conduct in the future.” United States v. Scroggins, 880 F.2d 1204, 1215 (11th Cir.1989). In this case, the court observed from Wright’s demeanor that

within Mr. .Wright’s own frame of reference, he is sincere in a lot of the tMngs that he said, but I just do not tMnk Mr. Wright believes that he was a member of a militia whose mission was to.protect the citizens of the state of Georgia against threats from outside. I think Mr. Wright believes that he was a member of a group that was prepared to respond to whatever they perceived to be a threat or a problem. I’m not convinced by Ms testimony that they believed that they were carrying out the law as opposed to being ready to resist it.

(R.3 at 23.) These observations amount to factual findings that at the time of sentenemg Wright was not remorseful and did not think that Ms conduct was wrong. These findings are entitled to great deference and alone support the demal of a downward adjustment. See United States v. Hromada, 49 F.3d 685, 689 (11th Cir.1995) (“A district court occupies the umque position to evaluate whether a defendant has accepted responsibility for Ms acts; its determination is entitled to great deference on appeal.”).

[1414]*1414Second, even if the district court’s conclusion rested exclusively on Wright’s challenges to the constitutionality of his convictions, the district court’s refusal to reduce Wright’s offense level was permissible. “Our case law permits a district court to deny a defendant a reduction under § 3E1.1 based on conduct inconsistent with acceptance of responsibility, even when that conduct includes the assertion of a constitutional right.” United States v. Smith, 127 F.3d 987, 989 (11th Cir.1997) (en banc); see United States v. Henry, 883 F.2d 1010, 1011 (11th Cir.1989) (holding that denial of § 3E1.1 reduction is not “impermissible punishment” for exercising Fifth or Sixth Amendment rights); see also United States v. McDonald, 935 F.2d 1212, 1222 (11th Cir.1991) (rejecting defendant’s contention that § 3E1.1 “infringe[s] on his right to appeal because he was unable to express acceptance of responsibility for his deeds at the sentencing hearing while he anticipated bringing this appeal”); United States v. Jones, 934 F.2d 1199, 1200 (11th Cir.1991) (“[T]he court’s consideration, at sentencing, of the defendants’ denial of culpability at trial does not impermissibly punish the defendant for exercising his constitutional right to stand trial.”).

For these reasons, we affirm Wright’s sentence.²

REHEARING GRANTED IN PART; OPINION VACATED IN PART; AFFIRMED.

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OPINION ON REHEARING

COX, Circuit Judge:

The court sua sponte grants rehearing as to the sentencing issue (and only as to the sentencing issue) addressed in its previous opinion, published at 117 F.3d 1265 (11th Cir.1997). Part II.D of that opinion, 117 F.3d at 1275-77, is accordingly vacated, and the following put in its stead.

Donald Wright was convicted following a plea of guilty to one count of possessing machine guns in violation of 18 U.S.C. § 922(o) and one count of possessing unregistered destructive devices in violation of 26 U.S.C. § 5861(d). Wright requested, and the Government recommended as part of a plea bargain, that the district court adjust Wright’s offense level downward for acceptance of responsibility . under U.S.S.G. § 3E1.1. The court refused to do so. Wright asserts that the district court’s refusal to adjust his offense level downward improperly penalized him for the constitutional challenges he has asserted.¹ We reject that contention for two reasons.

First, as we read the record, the district court’s refusal rested mainly on the finding of fact that Wright’s demeanor did not evince remorse. In determining whether a defendant is entitled to an acceptance of responsibility adjustment, a district court may properly consider “the offender’s recog-mtion of the wrongfulness of Ms conduct, Ms remorse for the harmful consequences of that conduct, and his willingness to turn away from that conduct in the future.” United States v. Scroggins, 880 F.2d 1204, 1215 (11th Cir.1989). In this case, the court observed from Wright’s demeanor that

within Mr. .Wright’s own frame of reference, he is sincere in a lot of the tMngs that he said, but I just do not tMnk Mr. Wright believes that he was a member of a militia whose mission was to.protect the citizens of the state of Georgia against threats from outside. I think Mr. Wright believes that he was a member of a group that was prepared to respond to whatever they perceived to be a threat or a problem. I’m not convinced by Ms testimony that they believed that they were carrying out the law as opposed to being ready to resist it.

(R.3 at 23.) These observations amount to factual findings that at the time of sentenemg Wright was not remorseful and did not think that Ms conduct was wrong. These findings are entitled to great deference and alone support the demal of a downward adjustment. See United States v. Hromada, 49 F.3d 685, 689 (11th Cir.1995) (“A district court occupies the umque position to evaluate whether a defendant has accepted responsibility for Ms acts; its determination is entitled to great deference on appeal.”).

[1414]*1414Second, even if the district court’s conclusion rested exclusively on Wright’s challenges to the constitutionality of his convictions, the district court’s refusal to reduce Wright’s offense level was permissible. “Our case law permits a district court to deny a defendant a reduction under § 3E1.1 based on conduct inconsistent with acceptance of responsibility, even when that conduct includes the assertion of a constitutional right.” United States v. Smith, 127 F.3d 987, 989 (11th Cir.1997) (en banc); see United States v. Henry, 883 F.2d 1010, 1011 (11th Cir.1989) (holding that denial of § 3E1.1 reduction is not “impermissible punishment” for exercising Fifth or Sixth Amendment rights); see also United States v. McDonald, 935 F.2d 1212, 1222 (11th Cir.1991) (rejecting defendant’s contention that § 3E1.1 “infringe[s] on his right to appeal because he was unable to express acceptance of responsibility for his deeds at the sentencing hearing while he anticipated bringing this appeal”); United States v. Jones, 934 F.2d 1199, 1200 (11th Cir.1991) (“[T]he court’s consideration, at sentencing, of the defendants’ denial of culpability at trial does not impermissibly punish the defendant for exercising his constitutional right to stand trial.”).

For these reasons, we affirm Wright’s sentence.²

REHEARING GRANTED IN PART; OPINION VACATED IN PART; AFFIRMED.

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133 F.3d 1412, 1998 U.S. App. LEXIS 1117, 1998 WL 29636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-donald-w-wright-ca11-1998.

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