United States v. Hakley

101 F. App'x 122

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 15, 2004
• Docket: No. 02-2423
• Status: Published

Opinions

OPINION

GWIN, District Judge.

On July 16, 2002, Gail Marie Hakley pled guilty to one count of identity theft in violation of 18 U.S.C. § 1028(a)(7). With this appeal. Defendant-Appellant Hakley challenges the district court’s determination that she was not entitled to downward adjustments of her offense level for acceptance of responsibility. For the reasons that follow, we VACATE the decision of the district court and REMAND this matter for resentencing in accordance with this opinion.

I. BACKGROUND

From August to December 2001, Gail Marie Hakley — under the alias Gail Sparks — worked as a home healthcare worker for Eleanor Belser in Grand Traverse County, Michigan. Ms. Belser hired Defendant Hakley to assist her with things that she was “physically unable to do because she was elderly and virtually blind.” (J.A. at 118,119).

With her work. Defendant-Appellant Hakley gained access to Ms. Belser’s social security number. Defendant Hakley used Ms. Belser’s social security number to apply for several credit cards. The defendant then used the cards on a shopping spree, including charging over $1,000 at Victoria Secret. Hakley also had access to Ms. Belser’s personal identification number and she used that identification number to make unauthorized withdrawals from Ms. Belser’s bank account. In total. Defendant Hakley fraudulently absconded with $7,746.72 of Ms. Belser’s funds.

Ms. Belser’s son, Charles Belser, discovered the suspicious credit card and ATM activity. On December 21, 2001, Mr. Belser filed a complaint with the Grand Traverse County, Michigan Sheriffs Department. Mr. Belser also confronted Defendant Hakley about her conduct. When confronted by Charles Belser, Defendant Hakley acknowledged her guilt and apologized.¹ In a note she left for the family after being fired, Hakley wrote: “No words can ever say how sorry that I am. I have a bad sickness and I am checking myself in for some serious help.” (J.A. at 119, H18).

On January 8, 2002, an officer from the Grand Traverse, Michigan Sheriffs Department contacted Defendant Hakley for questioning. The officer did not put Defendant Hakley under arrest. During the questioning by the deputy sheriff, Defendant Hakley readily admitted to the credit card and ATM fraud. However, the following day, Defendant Hakley retained counsel and refused to make a written statement.

In February and March 2002, before any federal or state charges were brought regarding the theft from Mrs. Belser, Defendant Hakley stole two Social Security Administration checks made payable to her handicapped daughter, Rachel Sparks. Defendant forged her daughter’s signature on the checks and cashed them to use the funds for herself. An investigation revealed that Defendant Hakley also had charged $1,266 to credit cards under the name Rachel Sparks.

On July 8, 2002, Defendant waived indictment in the instant matter and entered a not-guilty plea to a bill of information. Three days later, on July 11, 2002, Defendant notified the district court of her intent to plead guilty. The following week, on July 16, 2002 Defendant entered into a plea agreement and changed her plea to guilty. Pursuant to the plea agreement, Defendant Hakley pled guilty to one count of identity theft. In the plea agreement, the Government agreed it would neither recommend nor oppose Defendant’s request for a reduction of her offense level under § 3E1.1 for acceptance of responsibility. In addition, pursuant to the terms of the plea agreement, the Government recommended that Defendant be sentenced at the low end of the guideline range.

The probation officer interviewed Defendant on July 31, 2002. When asked why she committed the instant offense, Defendant attributed the theft to a desire to provide for her children around the holidays after their father had committed suicide. Defendant also noted that she had a gambling addiction and “compulsive money disorder.” Finally, Defendant stated that she knew that she had hurt her family and the family of the victim and that she was sorry for her behavior.

On October 22, 2002, a U.S. Probation Officer completed a Presentence Investigation Report. The probation officer reported that

33. when asked what possessed her to involve herself in the instant offense, Ms. Hakley stated she could not articulate why she committed the instant offense. However, Ms. Hakley did state it was Christmas, and she wanted to give her children material things. Ms. Hakley reported she had always felt the need to provide her children with material possessions after their father committed suicide.

34. Ms. Hakley reported she has a gambling addiction and a “compulsive money disorder.” Ms. Hakley stated she has received help for her gambling issues, but she has not received assistance regarding her “compulsive gambling disorder.”

35. Ms. Hakley stated she can say she is sorry numerous times, but she knows she cannot take back her actions. Ms. Hakley realized she has heard her children, her family, and the Belser family. Ms. Hakley reported her health and hyper-tension have worsened since being incarcerated.

37. During the presentence interview, Ms. Hakley was extremely emotional. This emotion, however, was not remorse but was more about being concerned for her own well-being and impending incarceration. Despite Ms. Hakley’s token apologies, this officer does not believe she is sincere or sorry for how her actions have affected those around her. Based on Ms. Hakley’s encounters with the judicial system, her actions are inconsistent with her words.

38. Based on Ms. Hakley’s comments and her behavior, this officer does not believe she has accepted responsibility for her conduct. Ms. Hakley consistently minimizes her behavior and is more concerned about herself and making excuses for her actions rather than being truly contrite.

(J.A. at 122, 111133-38). Consequently, the officer recommended that Defendant Hakley not receive a reduction of her offense level for acceptance of responsibility. Defendant filed an objection to this finding.

At the time Defendant Hakley committed the offenses, she was on supervised release following a previous conviction for bank embezzlement. In June of 2001, Defendant Hakley violated her supervised release by failing to pay a fine, falsifying records, and submitting false documents to her probation officer. In March of 2002, officers arrested Hakley for a second violation of her supervised release, regarding the conduct involving Mrs. Belser. On March 28, 2002, a magistrate judge detained her. Defendant Hakley pled guilty to the second supervised release violation and was sentenced for that violation on November 20, 2002, the same day as the sentencing for the charges in this case.

The district court overruled Defendant Hakley’s objection to the Presentence Report and did not reduce her offense level for acceptance of responsibility. On November 20, 2002, the court sentenced Defendant Hakley at a Total Offense Level of 16 and a Criminal History Category of II. which yielded a Guideline range of twenty-four to thirty months. Ultimately, the district court sentenced Defendant to twenty-four months of incarceration, followed by three years of supervised release. The court ordered restitution payments totaling $11,008.72. In addition, for a violation of supervised release, the district court sentenced Defendant Hakley to ten months of incarceration, to run consecutively with the sentence imposed for identity theft.

On December 2, 2002. Defendant filed a timely notice of appeal as to the sentence for identity theft, but did not appeal the sentence for violation of her supervised release.

II. LEGAL STANDARD

The district court’s application of the sentencing guidelines is subject to a two-tier standard of review. We review the court’s factual findings for clear error. See United States v. Webb, 335 F.3d 534, 537-38 (2003); United States v. Lang, 333 F.3d 678, 682 (6th Cir.2003); U.S.S.G. § 3E1.1., Note 5 (“The sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review.”). Meanwhile, questions of law are subject to de novo review. See United States v. Miggins, 302 F.3d 384, 390 (6th Cir.2002); see also United States v. Tilford, 85 Fed.Appx. 516 (6th Cir.2004); United States v. Rodriguez-Trujillo, 84 Fed.Appx. 621 (6th Cir.2003). The propriety of the application of the “acceptance of responsibility” reduction to uncontested facts — as is the case here² — is a legal conclusion, reviewed de novo. See, e.g., United States v. Tilford, 224 F.3d 865, 867 (6th Cir.2000) (“Generally, we review for clear error a district court’s finding that a defendant is not entitled to a sentence reduction for acceptance of responsibility. However, the standard of review is de novo where, as here, the only issue presented is the propriety of the application of the reduction to uncontested facts.”).³

III. DISCUSSION

The Sentencing Guidelines provide for a two-level reduction in a defendant’s sentence if the defendant “clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3El.l(a). The “defendant has the burden of demonstrating by a preponderance of the evidence that a reduction for acceptance of responsibility is warranted.” United States v. Banks, 252 F.3d 801, 806 (6th Cir.2001). In cases where the offense level is 16 or greater before the application of § 3El.l(a), a district court may further reduce a defendant’s sentence by another level if he assists the authorities in the investigation or prosecution of his own misconduct by either “timely providing complete information to the government concerning his own involvement in the offense [] or timely notifying authorities of his intention to enter a guilty plea, thereby enabling the government to avoid having to prepare for trial.” U.S.S.G. § 3El.l(b).

A defendant can demonstrate “significant evidence” of acceptance of responsibility if the defendant enters a guilty plea prior to trial and admits, or does not falsely deny, any additional relevant conduct. U.S.S.G. § 3E1.1, emt., n. 3. The Commentary to § 3E1.1 lists eight factors that a court may consider in determining whether to give a reduction for acceptance of responsibility. Among the pertinent considerations are: “truthfully admitting the conduct comprising the offense(s) of conviction, and truthfully admitting or not falsely denying any additional relevant conduct,” “voluntary termination or withdrawal from criminal conduct or associations,” “post-offense rehabilitative efforts (e.g., counseling or drug treatment),” and “the timeliness of the defendant’s conduct in manifesting the acceptance of responsibility.” U.S.S.G. § 3E1.1, emt., n. 1.

This court consistently has noted that “[a]n acceptance of responsibility adjustment is generally awarded to a defendant who admits guilt in a timely-entered guilty plea proceeding and may not be disallowed unless there is conduct clearly demonstrated in the record that is inconsistent with the defendant’s specific acknowledgment of responsibility demonstrated by the guilty plea.” United States v. Truman, 304 F.3d 586, 592 (6th Cir.2002); see also United States v. Jeter, 191 F.3d 637, 641 (6th Cir.1999) (“[W]e require that there be some conduct that the court can find is inconsistent with that specific acceptance of responsibility referred to in the commentary, namely the acceptance of the guilty plea.”) (citing U.S.S.G. § 3E1.1, emt., n.3).

However, the defendant may not receive the reduction if the defendant’s outward manifestation of acceptance of responsibility is outweighed by other inconsistent conduct:

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 under § 1B1.3 (Relevant Conduct) (see Application Note 1(a)), will constitute significant evidence of acceptance of responsibility for the purposes of subsection (a). However, this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility. A defendant who enters a guilty plea is not entitled to an adjustment under this section as a matter of right.

U.S.S.G. § 3E1.1. Application Note 3. It is notable that the Guidelines Application Note speaks only to inconsistent conduct in denying a defendant credit for acceptance of responsibility.

This case involves consideration whether conduct occurring before a defendant pleads guilty should be used to deny the acceptance of responsibility adjustment. Thus, the issue in the present case is the temporal scope of “conduct of the defendant that is inconsistent with such acceptance of responsibility.” See U.S.S.G. § 3E1.1. Application Note 3. The Guidelines distinguish between the scope of the conduct that initially triggers the downward adjustment of the offense level for acceptance of responsibility and the conduct that may defeat the adjustment. The distinction is logical: Earlier conduct may suggest the applicability of the downward departure, and the only reason to doubt the departure’s applicability would be subsequent inconsistent behavior. The law gives a criminal the chance to recognize the wrongful nature of the criminal conduct and to express contrition through accepting responsibility. The sincerity of the contrition cannot be impugned by behavior prior to the expression of the contrition. In other words, the failure to express sufficient contrition for past criminal acts (other than those for which the defendant is currently facing prosecution) does not impeach a latter expression of contrition.

Much evidence suggests that Hakley accepted responsibility for her actions early-on: Before the federal government brought formal charges, Defendant Hakley told the government that she would plead guilty. She waived indictment. She agreed to provide restitution for all relevant conduct, not just the conduct related to the offense. At issue here is a question of law — whether the district court relied on impermissible considerations when determining that Defendant Hakley acted in a manner that was inconsistent with the aforementioned acceptance of responsibility.

The district court relied on four factors in concluding that Defendant Hakley had not accepted responsibility for her criminal conduct. First, the district court referenced Defendant Hakley’s first violation of her supervised release. “[S]o that tells me that [at that] stage at least that either she was not sincere in expressing contrition or that life was too much for her and she just reverted to the life of crime.” (J.A. at 100). Second, the court considered that Defendant Hakley stole Social Security checks from her daughter. “[Tjhat’s proof that in February 2002 Ms. Hakley was not accepting responsibility and was not contrite about what had happened.” (J.A. at 102). Third, the district court reviewed the March 2002 discharge summary from Addiction Treatment Services, where Defendant Hakley was undergoing counseling from February 2000 until late March 2002, when she was detained.⁴ The report indicated that the defendant did not appear to take responsibility for her behavior. “So March of 2002, assuming that the report is correct, we know the defendant has not accepted responsibility, nor is she contrite.” Id. at 102-03. Fourth, the district court considered the finding of the probation officer that Defendant Hakley was not remorseful.

The factors relied upon by the district court call into question whether the district court improperly made a sentencing determination based upon the Defendant’s pre-plea conduct. Almost exclusively, the court relied on events occurring before March 2002 — prior to the defendant’s waiving indictment and agreeing to plead guilty and even prior to her arrest for this conduct.

Three cases are on point in determining the relevant time frame for acceptance of responsibility. In United States v. Jeter, 191 F.3d 637 (6th Cir.1999), the defendant, Eddie Jeter, committed state crimes prior to his federal indictment and confession. The Jeter court noted that while “district courts have discretion in determining the time period for acceptance of responsibility, we do not believe they have unbridled discretion.” Id. at 640. While the court declined “to adopt a bright-line rule” in Jeter, id. at 642, the court held that “the defendant must be on notice that the federal government has an interest in his or her affairs before § 3E1.1 comes into play.” Id. at 639. Specifically, the court determined that Jeter was not on notice that the federal government would prosecute him until his indictment. Thus, this court concluded that the defendant’s prior state crimes could not be a basis for denying him an acceptance of responsibility reduction. Id. at 639.

In United States v. Tilford, 224 F.3d 865 (6th Cir.2000), we refined Jeter’s holding, concluding that the relevant time frame for acceptance of responsibility determinations is the period subsequent to (i) the defendant being put on notice that the federal government has an interest in the defendant’s affairs and (ii) the defendant actually accepting responsibility. Id. at 868. In that case, the defendant, Larry Eugene Tilford, was put on notice that the federal government was interested in his involvement in the filing of false tax claims when federal agents interviewed him in 1993 and informed him that they were investigating his tax return filings. Tilford initially agreed to cooperate with the investigation, but — much like the case at hand — changed his mind after consulting with his attorney during a break. Tilford continued to engage in fraudulent income tax schemes. On February 26, 1998, the United States charged Tilford for aiding and abetting in the filing of false tax claims. “That same day, pursuant to a written agreement, Til-ford entered guilty pleas ...” Id. at 866. When examining the facts of Tilford, this court reasoned that the defendant had insufficient notice of the federal prosecution to deny him the § 3E1.1 reduction. Thus, we held that the district court erred in denying the defendant a reduction of his offense level for acceptance of responsibility based on conduct that had occurred before the 1998 indictment and guilty plea. Id. at 865-68.

Importantly, in Tilford, we referenced both the point of pleading and indictment as touchstones for establishing notice and acceptance of responsibility. “Based on the reasoning in Jeter, it is the period following the entry of Tilford’s guilty pleas [and indictment], not the period following the 1993 IRS interview, that is relevant for purposes of evaluating Tilford’s acceptance of responsibility.” Id. at 868. We noted that “to extend the denial of acceptance of responsibility reduction to similar’ criminal conduct before the defendant has been arrested on federal charges is to penalize the defendant for a criminal disposition, not because he has not accepted responsibility to the federally charged conduct.” Id. (quoting Jeter, 191 F.3d at 641) (emphasis added).

To clarify when a defendant has accepted responsibility, this court has distinguished the facts in Tilford from an earlier, anomalous case — United States v. Childers, 86 F.3d 562 (6th Cir.1996). In Childers, the defendant confessed to postal workers in 1992 that he had stolen mail and altered checks. “He indicated that he was sorry for his actions, and that he was willing to make restitution.” Id. at 563. The federal government did not initiate a prosecution or indict Childers for the postal offenses until two years later. During the intervening two years, Childers violated state law by passing bad checks and attempting to negotiate stolen and forged checks. The Childers court determined that Childers had accepted responsibility in the 1992 confession. Ultimately, the Childers court held that the district court properly considered the intervening state offenses as inconsistent behavior, suggesting that Childers did not merit a downward adjustment for acceptance of responsibility. Id. at 564. While Childers has not been overruled explicitly, we have limited its reasoning to the facts of the case and declined to extend it to other cases.

In Tilford and Jeter, we neatly fenced in the ruling in Childers. Tilford, 224 F.3d at 868. The facts in Tilford varied only slightly. This court found that, although Tilford was put on notice in 1993, “[u]nlike Childers, Tilford did not accept responsibility when the IRS agents first interviewed him.” Id. at 867. This court has observed that “the relevant time period for measuring Tilford’s acceptance of responsibility began with the entry of Tilford’s guilty plea on February 26, 1998, which was, importantly, the date of his indictment.” United States v. Harper, 246 F.3d 520. 526 (6th Cir.2001) (overruled in part on other grounds) (emphasis added). Further, Jeter distinguished Childers by holding that “the relevant time period for acceptance of responsibility does not begin until the date that federal authorities indict the defendant and he becomes aware that he is subject to federal investigation and prosecution.” United States v. Rodgers, 278 F.3d 599, 601 (6th Cir.2002) (citing Jeter, 191 F.3d at 641) (emphasis added). See also United States v. Smith, No. 99-6025, 205 F.3d 1343, 2000 WL 145156, 2000 U.S.App. LEXIS 1481 (6th Cir. Feb.1, 2000) (“In Jeter, the court ruled that the relevant time period for an acceptance of responsibility could not begin until the date that federal authorities indicted the defendant and he became aware that he was subject to federal investigation and prosecution.”) (internal quotations and citations omitted) (emphasis added). Thus, since Childers, this court has continued to stress the entry of the guilty plea and the indictment as pivotal to determining the moment at which a defendant first accepts responsibility. Cf. United States v. Gregory, 315 F.3d 637, 641 (6th Cir.2003) (holding that, even after engaging in conduct warranting an enhancement for obstruction of justice, the defendant should receive credit for acceptance of responsibility because “[a]ll of his obstructive conduct predated his indictment, and he has never denied his own responsibility and guilt.”).

In a binding, published decision, the Sixth Circuit already has established the limited application of Childers in light of Jeter and its progeny. Rodgers, 278 F.3d at 601. The matter is not before this court for the first time. In Rodgers, this court unequivocally clarified the status of the law: “In Jeter we held that the relevant time period for acceptance of responsibility does not begin until the date that federal authorities indict the defendant and he becomes aware that he is subject to federal investigation and prosecution.” Rodgers, 278 F.3d at 601 (emphasis added). The dissent accuses the majority of creating new law when, in fact, binding precedent already exists. The dissent disagrees with the interpretation of Jeter present in Rodgers and argues for a more narrow interpretation. However, the dissent is arguing a moot point — this Circuit already has followed a more broad interpretation of Jeter. See, e.g., Rodgers, 278 F.3d at 601; cf. Gregory, 315 F.3d at 640.

The dissent encourages the majority to ignore Rodgers and instead follow United States v. Webb, 335 F.3d 534 (6th Cir. 2003). However, Webb dealt narrowly with an issue of applying the Guidelines to uncontested facts and applied a very deferential standard of review. Here, however, we face a case involving a contested issue of fact — whether Hakley was truly contrite. More importantly, this case centers around two issues of law: (1) the factors a sentencing court may consider in deciding whether to grant a reduction for acceptance of responsibility, and (2) the relevant time frame for considering acts inconsistent with an acceptance of responsibility. We review these legal issues de novo, Webb notwithstanding.⁵ This Court has continually declined to apply Webb to cases, such as the matter sub judice, where the panel determines that an issue of law is present. See. e.g., United States v. Horn. 355 F.3d 610, 613 (6th Cir.2004); United States v. Tilford, No. 02-5971, 85 Fed.Appx. 516, 518 (6th Cir. Jan.12, 2004); Rodriguez-Trujillo, 84 Fed.Appx. at 623.

However, even if we apply the dissent’s proposed standard of review, we reach the same conclusion. Where a district court considers improper factors in making a factual determination, it commits clear error; indeed, it commits an abuse of discretion. Paschal v. Flagstar Bank, 297 F.3d 431, 434 (6th Cir.2002) (“An abuse of discretion exists when the district court applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact.”) (citation omitted). So, even if we were to determine that the clear error standard applies under Webb, we would reach the same conclusion because the district court applied the wrong legal standard by considering irrelevant information when it determined that Hakley had not accepted responsibility.

The dissent also takes issue with our reading of United States v. Gregory, 315 F.3d 637 (6th Cir.2003). The dissent correctly relates that the precise issue in Gregory was whether Gregory was entitled to keep his acceptance of responsibility despite obstructing the investigation of the crime for which he accepted responsibility. Yet, this distinction does nothing to undercut our position.

While incarcerated, Gregory received drugs from a relative. The Government charged Gregory with receiving drugs in prison. Shortly after he received the drugs, federal investigators interviewed Gregory and he admitted to swallowing three balloons filled with drugs. The interview took place in March of 2000. On May 10, 2000. Gregory phoned a woman and told her not to talk to anyone about the charges or to admit anything. The following day, on May 11, he sent a letter and a card to his sister, who had brought him the drugs, telling her not to cooperate with the government. Also on May 11, he spoke to FBI officials again, but never mentioned the letter he sent earlier that day. Sometime during this interview. Gregory called his sister. In contrast to his earlier recommendations to her, he urged her to cooperate with FBI officials, and put an FBI agent on the phone with her.

At sentencing, the court ruled that Gregory attempted to obstruct justice by telling others not to cooperate. As a result of this obstruction, the Court enhanced Gregory’s sentence under Guideline § 3C1.1. That Guideline directs that a party receiving an enhancement under § 3C1.1 is presumed not to be entitled to receive a reduction for acceptance responsibility. Indeed, only in “extraordinary circumstances” may a defendant receive both a § 3C1.1 enhancement and a reduction for acceptance of responsibility.

On appeal, this Court determined that this case was “extraordinary” and decided that Gregory was entitled to a reduction for acceptance of responsibility. In so holding, the panel noted: “All of [Gregory’s] obstructive conduct predated his indietment[.]” Id. at 641. If pre-indictment obstruction of justice related to Gregory’s charged offense is insufficient to remove his case from the realm of the “extraordinary,” then certainly Hakley’s pre-indictment theft cannot be sufficient to nullify her acceptance of responsibility.

Gregory supports our conclusion in another way, as well. The dissent states that because Hakley was on supervised release she knew that the federal government was interested in her illegal conduct. Setting aside the obvious fact that the federal government is always interested in citizens’ illegal conduct, the dissent assumes that Hakley’s supervised release status put her on notice of the federal government investigation and likely prosecution, thus rendering her early apologies as the relevant acceptance of responsibility. If supervised release were sufficient to put one on notice of likely prosecution, then certainly incarceration would be. Yet, in Gregory, this Court never employed such an analysis.

Moreover, allowing a district court to deny credit for acceptance of responsibility, without a specific finding of inconsistent conduct, would denigrate the purpose of the Sentencing Guidelines. The Guidelines were established to promote judicial efficiency and consistency. Within this framework, § 3E1.1 plays an important role in encouraging plea agreements. Pleas reduce unnecessary trials and conserve judicial resources. See Corbitt v. New Jersey, 439 U.S. 212, 222-223, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978). Through pleas, the government saves trial costs and avoids the risk of acquittal. In exchange, defendants gain some predictability regarding their sentences. A sentence reduction for acceptance of responsibility serves this purpose.

The dissent would obliterate this incentive structure. Under the dissent’s reasoning, a court could rely on past bad acts without review — framing them as evidence of a defendant’s present inability to fully accept responsibility for the criminal conduct at issue. However, the Guidelines already factor prior criminal acts into a defendant’s sentence calculation. A court is not permitted to rely on a defendant’s past bad acts to deny the defendant credit for acceptance of responsibility. Cf. United States v. Morrison, 983 F.2d 730, 734-5 (6th Cir.1993); United States v. Banks, 252 F.3d 801, 806 (6th Cir.2001) (“[T]he denial of a sentence reduction based on a defendant’s general criminal disposition has been expressly rejected by the Sixth Circuit.”).⁶

Further, the Guidelines also aim to promote consistency in sentencing determinations:

Although district courts need a great deal of discretion when making sentencing determinations, we must require of district courts a level of consistency in sentencing defendants. If we permit different judges to disregard the guidelines and accept various events as triggering the critical date for evaluating acceptance of responsibility, we will not achieve this level of consistency.

Jeter, 191 F.3d at 640. Despite the dissent’s assertions, lower courts do not have unbridled discretion in their acceptance of responsibility determinations.

Ultimately, district courts are bound to follow Jeter and its progeny. See Rodgers, 278 F.3d at 601. However, the district court in the matter sub judice did not apply this precedent. Instead, the court assumed that it could focus almost exclusively on events on or before March 2002, well before Hakley pled guilty. Yet, Defendant HaMey did not enter a guilty plea until July 16, 2002 — four months later. Defendant Hakley’s January 8, 2002 confession to a state law enforcement official did not put Defendant on notice that federal authorities were interested in her affairs. First, it is undisputed that Defendant Hakley’s January 8, 2002 confession was to a state and not a federal officer. Cf. United States v. Holland, 1 Fed.Appx. 266, 268 (6th Cir.2001) (“Holland’s encounter at the airport may not have put him on notice that the federal government had an interest in his subsequent drug activities. We do not know whether any of the officers that he encountered were federal officers or, if they were, whether they identified themselves to Holland as such.”). Second, the record also indicated that the officer did not place Hakley under arrest during this initial interview. Third, Jeter and its progeny indicate that acceptance of responsibility generally does not occur until entry of a plea, which did not occur until July 16, 2002.

Jeter and its progeny emphasize the importance of the entry of the guilty plea and the point of indictment as the relevant time frame for notice and acceptance of responsibility. Given this controlling precedent, the district court erred by relying almost exclusively on events occurring at least four months prior to Defendant’s entry of her guilty plea.⁷

To the extent the district court relied on factors other than pre-plea conduct, it also erred. As we noted above, the district court considered the discharge summary from Addiction Treatment Services and the findings of the probation officer in the presentence report. Yet, these sources contain no information about the defendant’s conduct; instead, they contain other people’s conclusions regarding her mental state, i.e., whether she was actually contrite. Such considerations are improper because they fall outside of the Guideline provisions. Under the Guidelines, the Court may consider “conduct of the defendant that is inconsistent with [ ] acceptance of responsibility.” U.S.S.G. § 3E1.1, Application Note 3 (emphasis added). The Guidelines say nothing about relying upon the impressions of other people regarding the defendant’s mental state.

Apparently, the dissent would allow district court judges to become metaphysicians, reading into the hearts and souls of defendants. However we do not believe the Guidelines intended district judges to rely upon impressions, impressions not grounded in statements or acts, to read a defendant’s mind. Instead, we believe that the trial court’s role is to determine from the defendant’s own objective actions and statements whether he has outwardly expressed contrition. Thus, we VACATE the sentence and REMAND the case for resentencing. In addition to determining whether Defendant Hakley is entitled to a two-level reduction for acceptance of responsibility, the district also shall consider whether it should reduce Defendant’s sentence by another level for “timely providing complete information to the government concerning [her] own involvement in the offense [ ] or timely notifying authorities of [her] intention to enter a guilty plea, thereby enabling the government to avoid having to prepare for trial.” U.S.S.G. § 3El.l(b).

IV. CONCLUSION

For the forgoing reasons, the sentence of the district court is VACATED and the case is REMANDED for resentencing in accordance with this opinion.

1 . Mr. Belser claims, however, that Defendant Hakley only confessed to part of her fraudulent activity, concealing the full nature of her identity theft.

2 . The question of whether the district court relied on improper considerations is a legal question, not a factual matter. Even if Defendant Hakley admitted that the probation officer was correct in the assessment that Defendant’s post-plea statements lacked sincerity and credibility, the district court never ruled that the credibility assessment alone was sufficient grounds for denying a downward departure. At issue here is whether, as a matter of law, the district court erroneously relied on pre-plea (and pre-arrest) conduct.

3 . In the matter sub judice, this court considers whether the denial of acceptance of responsibility comports with the law and the Guidelines. See 18 U.S.C. § 3742(1), (2). Thus, the court has jurisdiction to review the appeal.

4 . The district court decided not to give any weight to an updated report, from the same source, which stated that, following the entry of her guilty plea. Defendant Hakley did appreciate the nature of her wrongdoing and responded to therapy. There was some controversy regarding the fact that, in the second report, the counselor drew the conclusion that Hakley should not go to prison, instead of limiting her observations to Hakley’s mental state. "I guess I have to decide that whether [sic] or not the writer of the report of the person describing herself as a counselor can be believed in either letter[;] I don't know how to resolve that at all. But I do know that in March this counselor said there was no acceptance of responsibility.” (J.A. at 104).

5 . Webb states, "our standard of review of a district court’s application of provisions of the Sentencing Guidelines to the facts should be treated deferentially and should not be disturbed unless clearly erroneous.” 335 F.3d at 537 (emphasis added). Therefore, it does not disturb the oft-repeated rule that this Court reviews de novo a district court's rulings on issues of law.

6 . The dissent does not preserve defendants' rights not to be punished for their general criminal disposition. The dissent goes as far to conclude that being on supervised release puts defendants on notice of the federal government’s interest in their affairs. Under this logic, a defendant who violates supervised release never has an incentive to plead guilty and assist the government. Instead, the dissent would authorize the courts to carte blanche deny acceptance of responsibility credit to all defendants who violate their supervised release.

7 . There is no reason to believe that the sentencing assessment would have been the same without the erroneous consideration of pre-plea conduct. Absent a clear statement from the sentencing judge that a permissible ground for denying the adjustment was sufficient to support the sentencing, this court cannot assume that the erroneous considerations-which were prominent in the sentencing decision-were moot. See Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992) (if a district court misapplied sentencing guidelines, appellate court should remand unless it concludes under harmless error doctrine that district court would have imposed the same sentence if it had applied the guidelines properly).

The dissent speculates that, relying on post-plea conduct, the district court would still deny credit for acceptance of responsibility. This, of course, is unsupported. We are remanding, and not reversing, because we do not know how the district court judge would have ruled absent the impermissible considerations.