United States Court of Appeals For the First Circuit
No. 21-1129
UNITED STATES OF AMERICA,
Appellee,
v.
BARRY MCCARTHY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. Lance E. Walker, U.S. District Judge]
Before
Thompson, Selya, and Kayatta, Circuit Judges.
Stephen C. Smith and Steve Smith Trial Lawyers on brief for appellant. Donald E. Clark, Acting United States Attorney, Julia M. Lipez and Benjamin Block, Assistant United States Attorneys, on brief for appellee.
April 12, 2022 SELYA, Circuit Judge. This is a rifle-shot appeal. In
it, defendant-appellant Barry McCarthy takes aim at the district
court's refusal to grant him a downward adjustment for acceptance
of responsibility, see USSG §3E1.1, in constructing his guideline
sentencing range (GSR). Concluding, as we do, that the defendant
is firing blanks, we affirm his sentence.
I
We start by rehearsing the relevant facts and travel of
the case. Because the defendant's sentence followed a guilty plea,
we draw the facts from the presentence investigation report (PSI
Report) and the transcript of the disposition hearing. See United
States v. deJesús, 6 F.4th 141, 145 (1st Cir. 2021); United States
v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991).
In November of 2018, a consortium of law enforcement
agencies commenced an investigation into the trafficking of large
quantities of narcotics from New York to Maine. The investigation
uncovered information indicating that persons travelled from New
York to Maine to sell and distribute narcotics out of locations
called "trap houses" (where the drug traffickers often stayed).
Maine residents who made these trap houses available were
compensated with either drugs or cash. At times, these Maine
residents would act as "middlemen," completing hand-to-hand drug
transactions with retail customers.
- 2 - The probe revealed that the defendant (a Maine resident)
had allowed two New Yorkers to use his dwelling as a trap house
from at least February until May of 2019. At that time, a search
warrant for the dwelling and an arrest warrant for the defendant
were issued and executed. The defendant later confessed that an
estimated 100 to 200 grams of cocaine or cocaine base (crack
cocaine), along with other drugs, had been brought to his home
weekly for distribution.
Incident to his arrest, the defendant was charged with
maintaining a drug involved premises. See 21 U.S.C. § 856(a)(2).
After waiving his right to a preliminary examination, the defendant
was detained at the Somerset County Jail. While detained, he
engaged in misconduct involving prison contraband. In September
of 2019, he was charged with trafficking tobacco in an adult
correctional facility in violation of Maine law. See Me. Rev.
Stat. Ann. tit. 17-a, § 757-A. He later pleaded guilty to that
charge.
In November of 2019 — a few months after he was charged
with trafficking contraband in prison — the defendant waived
indictment on the federal charge and pleaded guilty to maintaining
a drug involved premises. At the district court's direction, the
probation office prepared a PSI Report. The PSI Report — revised
in March of 2020 — recommended a total offense level of 26 and
- 3 - placed the defendant in criminal history category V. These
calculations yielded a GSR of 110 to 137 months.
In setting the total offense level, the probation
officer declined to recommend an offense-level reduction for
acceptance of responsibility. See USSG §3E1.1. Along with the
tobacco trafficking charge, the probation officer concluded that
the defendant's admissions established by a preponderance of the
evidence other offenses like trafficking in prison contraband
generally. See Me. Rev. Stat. Ann. tit. 17-a, § 757. Citing
United States v. Jordan, 549 F.3d 57 (1st Cir. 2008), the probation
officer determined that the defendant's transgressions while
detained evinced a failure to withdraw from criminal conduct and
that the defendant had not clearly demonstrated acceptance of
responsibility with respect to the offense of conviction.
Sentencing was delayed due to the COVID-19 pandemic.
After some time had passed, the defendant agreed to be sentenced
in a video-conference proceeding. As a result, the disposition
hearing was held remotely in January of 2021. No objections were
interposed to the revised PSI Report, and the district court
adopted the report in full (except for a single modification
reflecting that the defendant had pleaded guilty to the tobacco
trafficking charge). The court also accepted the probation
officer's suggested guideline calculations, including the
recommendation that an offense-level reduction for acceptance of
- 4 - responsibility should be withheld. The court explained that its
ruling on that adjustment rested on the grounds adumbrated in the
PSI Report.
The district court then mulled the sentencing factors.
See 18 U.S.C. § 3553(a). Among other things, the court considered
the defendant's significant criminal history and observed that his
"inability or unwillingness to comply with the law . . . ha[d]
merely been unabated for the bulk of [his] life." After evaluating
the factors limned in 18 U.S.C. § 3553(a), the court imposed an
eighty-six-month term of immurement, which reflected a two-level
downward variance for the defendant's agreement to be sentenced
remotely and a further two-level downward departure requested by
the government. The court stated that the defendant did not
deserve any further downward adjustment and added that the sentence
imposed was "untethered" to the guideline range and would have
been the same had any of the objections regarding offense-level
adjustments been decided differently. This timely appeal
followed.
II
The defendant challenges his below-guidelines sentence
on a single ground: the district court's denial of an offense-
level reduction for acceptance of responsibility. We turn directly
to that challenge.
- 5 - The guidelines provide for a two-level reduction "[i]f
the defendant clearly demonstrates acceptance of responsibility
for his offense," USSG §3E1.1(a), and an additional one-level
reduction, on the government's motion, if — among other
requirements — the defendant has "timely notif[ied] authorities of
his intention to enter a plea of guilty," id. §3E1.1(b). The
district court determined that the defendant did not clearly
demonstrate acceptance of responsibility for his offense and,
thus, denied him any credit for acceptance of responsibility.
Our standard of review is familiar. A "sentencing
court's factbound determination that a defendant has not accepted
responsibility" is reviewed only for clear error. Jordan, 549
F.3d at 60; see United States v. McLaughlin, 378 F.3d 35, 37 (1st
Cir. 2004). We will not reverse unless — after a careful review
of all the relevant facts — we are "left with a definite and firm
conviction that a mistake has been committed." Brown v. Plata,
563 U.S. 493, 513 (2011) (quotations omitted); see United States
v. Royer, 895 F.2d 28, 29 (1st Cir. 1990). The sentencing court
is steeped in the nuances of the case, and we accord substantial
deference to its determination that acceptance of responsibility
has not been shown. See USSG §3E1.1, cmt. n.5; see also deJesús,
6 F.4th at 148. Despite this deference, though, questions of law,
including questions involving the interpretation of the sentencing
- 6 - guidelines, engender de novo review.1 See Jordan, 549 F.3d at 60;
McLaughlin, 378 F.3d at 38.
The defendant's chief contention is that his timely pre-
indictment guilty plea and related facts clearly demonstrated his
acceptance of responsibility for the offense of conviction. Given
the weight of that evidence, the defendant suggests, it was clearly
erroneous for the district court to find that his rogueries while
in prison warranted the denial of an acceptance-of-responsibility
adjustment. Although the defendant insists that his claim of error
challenges only the supportability of the district court's
factfinding, his arguments implicate questions of law. Thus, we
address those questions before addressing his core claim.
A
Notwithstanding the purely advisory status of the
sentencing guidelines, "the baseline rule is that, in calculating
a defendant's GSR, courts ordinarily should interpret and apply
the guidelines as written, looking both to the guideline
provision . . . and its associated commentary." deJesús, 6 F.4th
1A different standard obtains when a claim of error is raised for the first time on appeal. See United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). The parties quarrel over whether the defendant preserved his challenge to the district court's decision to deny a downward adjustment for acceptance of responsibility. We need not resolve this contretemps but, rather, assume — favorably to the defendant — that he has preserved his challenge.
- 7 - at 148 (quotations and alteration omitted). The Sentencing
Commission has provided a non-exhaustive list of factors that a
district court may consider when determining whether a defendant
has accepted responsibility for the offense of conviction. See
USSG §3E1.1, cmt. n.1. As relevant here, that list suggests that
a sentencing court may take into account whether a defendant has
"voluntar[ily] terminat[ed] or withdraw[n] from criminal conduct
or associations" when deciding whether he has accepted
responsibility. Id. cmt. n.1(B); see McLaughlin, 378 F.3d at 38.
Such post-offense conduct bears on the "sincerity of a defendant's
professed acceptance of responsibility." deJesús, 6 F.4th at 148.
The defendant asserts that his misbehavior while in
custody cannot — as a matter of law — outweigh the evidence
undergirding his acceptance of responsibility. In support, he
advances two reasons: the timing of his misbehavior (which
occurred before he waived indictment and entered his guilty plea)
and its triviality (a low-level misdemeanor).
The defendant's assertions rest on dual premises.
First, he argues that for criminal conduct to have purchase in the
acceptance-of-responsibility analysis, it must occur after the
entry of a guilty plea. Second, he presumes that minor offenses
necessarily bear less weight than serious offenses with respect to
the issue of whether a defendant has sincerely accepted
responsibility — so much so that low-level misdemeanors (such as
- 8 - the misdemeanor that he committed) cannot block an acceptance-of-
responsibility reduction. Neither premise withstands scrutiny.
Our precedent squarely forecloses the defendant's
argument regarding the timing of his criminal conduct. We
consistently have rejected the view that only post-plea conduct is
relevant to assessing a defendant's acceptance of responsibility
under section 3E1.1. See, e.g., Jordan, 549 F.3d at 61;
McLaughlin, 378 F.3d at 38; United States v. Carrington, 96 F.3d
1, 9 (1st Cir. 1996). For instance, we have explained that a
"sentencing court may appropriately consider whether [the
defendant] has voluntarily ceased all participation in criminal
activity," and we have found no reason to exempt conduct occurring
before a defendant avows contrition by entering a guilty plea.
We hasten to add, however, that there are boundaries on
how far back a sentencing court may reach in determining whether
a defendant has accepted responsibility. To put it bluntly, a
sentencing court "cannot go back limitlessly in time in assessing
acceptance of responsibility." Id. at 41. For this purpose, a
sentencing court should not go back further than "the lodging of
a federal charge" because that is when a "defendant has been put
on notice . . . that federal prosecutors have taken an interest in
his conduct." Id.
- 9 - Given that guidepost, we find no clear error in the
district court's consideration of the defendant's in-prison
transgressions. Those transgressions occurred after a formal
criminal complaint had been lodged and during the months before
his guilty plea in November of 2019. Because the defendant waived
his right to prosecution by indictment, he is correct in saying
that the conduct identified by the district court took place before
an indictment was handed down. But he strategically omits that he
was detained on federal charges before his misbehavior occurred,
and that detainer surely put him on notice that federal prosecutors
were interested in his conduct. We conclude, therefore, that the
district court was allowed to consider the defendant's post-arrest
conduct in assessing whether he had accepted responsibility for
the offense of conviction. The defendant has not shown any error
of law in this regard.
The defendant's second premise fares no better. We
discern no basis for a categorical rule that post-arrest conduct
amounting to no more than a low-level misdemeanor — as opposed to
more serious conduct — is necessarily less probative of the
authenticity of a defendant's acceptance of responsibility. In
point of fact, application note 1(B) makes pellucid that any
continued criminal conduct may be relevant for this purpose. That
note "extends to all criminal conduct," without any reference
either to the severity of the conduct or to its classification as
- 10 - a felony or a misdemeanor. Jordan, 549 F.3d at 60; see USSG
§3E1.1, cmt. n.1(B).
Our case law confirms that criminal conduct, regardless
of its classification as a felony or a misdemeanor, may shed light
on a defendant's lack of contrition and, therefore, on his
acceptance of responsibility. We have, for example, reasoned that
post-offense conduct may be highly relevant to whether a defendant
sincerely accepted responsibility for his crime if it involves a
"high degree of insensitivity to the root causes" of the
defendant's original offense. United States v. Saxena, 229 F.3d
1, 10 (1st Cir. 2000); see Jordan, 549 F.3d at 61 (reasoning that
decision to drink and drive while on bail "ha[d] even more bite"
as predicate for finding lack of authentic remorse because the
defendant had "blamed his involvement" in the underlying offense
"on an escalating addiction to alcohol and drugs"). Such
insensitivity may inhere in misdemeanors as well as in felonies.
So, too, we have considered persuasive a district court's
explanation that criminal conduct "signified a lack of remorse,"
because it reflected a "breach of trust," and was "deliberate,
planned," and "required forethought." deJesús, 6 F.4th at 148
(quotations omitted).
These characteristics may be present in a kaleidoscopic
array of crimes, major or minor. Accordingly, we hold that the
weight accorded by a sentencing court to criminal conduct in an
- 11 - acceptance-of-responsibility analysis is not determined by the
classification of the crime but, rather, depends upon the nature
and extent of the misconduct. The defendant has not shown any
error of law in this regard.
That ends this aspect of the matter. We conclude that
a sentencing court may find — in its discretion — that criminal
conduct sheds (or does not shed) light on the authenticity of a
defendant's acceptance of responsibility regardless of whether
that conduct is classified as a felony or as a misdemeanor.
Typically, any post-offense criminal conduct may be considered as
long as it occurs after a defendant can be said to be on notice
that federal prosecutors have demonstrated an interest in his
conduct (say, by charging him). And there is no hard-and-fast
rule that criminal conduct necessarily bears less on a defendant's
claim of remorse if that conduct comprises a low-level misdemeanor
rather than a more serious crime.
B
This brings us to the defendant's remaining challenge.
He posits that the district court, when performing the acceptance-
of-responsibility analysis, clearly erred in balancing the
relevant factors. In his view, the court must have undervalued
the evidence of his acceptance of responsibility, overvalued the
evidence of his post-offense conduct, or both.
- 12 - There was no clear error. It is the defendant's burden
to convince the district court that he deserves a downward
adjustment for acceptance of responsibility. See deJesús, 6 F.4th
at 148; McLaughlin, 378 F.3d at 39. The defendant must carry that
burden by a preponderance of the evidence, demonstrating "candor
and authentic remorse" beyond "a pat recital of the vocabulary of
contrition." Royer, 895 F.2d at 30. Whether a defendant has
sincerely accepted responsibility for his crime is a fact-
intensive inquiry that involves the balancing of a variety of
factors. See USSG §3E1.1, cmt. n.1; United States v. Nuñez-
Rodriguez, 92 F.3d 14, 21 (1st Cir. 1996) ("[S]ection 3E1.1
requires the sentencing court to balance many divergent factors,
consistent and inconsistent with acceptance of responsibility."
(emphasis in original)). How the mix of factors is weighed is
uniquely within the discretion of the sentencing court. See
deJesús, 6 F.4th at 148 ("The weighing of guideline factors is
left principally to the district court's judgment."). After all,
that court has seen and heard the defendant at first hand and
possesses a superior coign of vantage from which to evaluate
whether a defendant has expressed sincere remorse. See USSG
§3E1.1, cmt. n.5.
Though "the guidelines look with favor upon a timely
guilty plea as a plinth for an acceptance-of-responsibility
adjustment," such a plea "does not guarantee receipt of the
- 13 - downward adjustment." deJesús, 6 F.4th at 148. Among other
things, a sentencing court "can weigh in the balance any new
criminal conduct committed" by the defendant after his arrest.
Id. Similarly, the court may consider whether and to what extent
a defendant's cooperation with the government weighs in favor of
finding that the defendant clearly demonstrated his acceptance of
responsibility — but such cooperation does not guarantee that the
defendant will receive the downward adjustment. See Nuñez-
Rodriguez, 92 F.3d at 20 (observing that defendant's voluntary
identification of criminal associates will not always be
"reliable" indication of remorse). In the last analysis, the
weighing of all the pertinent factors is "a quintessential judgment
call." Jordan, 549 F.3d at 62. Given the "great deference" due
to the sentencing court in determining the defendant's acceptance
of responsibility, USSG §3E1.1, cmt. n.5, we cannot say, on the
record before us, that the determination of the court below was
clearly erroneous.
To begin, the district court furnished an adequate basis
for its determination. The court adopted the PSI Report in its
entirety, including that report's explanation for denying the
acceptance-of-responsibility adjustment. In relevant part, the
report detailed the defendant's misconduct at the correctional
facility. It described how the defendant possessed contraband
while detained, how he attempted to share that contraband with
- 14 - another inmate, and how he lied when confronted with the evidence
of his malefactions. And the report noted that, based on this
misconduct, the defendant had been charged with a misdemeanor for
trafficking tobacco in an adult correctional facility.
The PSI Report also concluded that the defendant's
admissions supported a finding that he had committed other
misdemeanors as well. Citing Jordan, the report recommended that
the court find that the defendant had not clearly demonstrated his
acceptance of responsibility, given his criminal conduct while in
prison.2 We think that this factual basis for the denial of the
adjustment was adequate. See deJesús, 6 F.4th at 148-49.
We add, moreover, that the district court's refusal to
grant an acceptance-of-responsibility reduction is consistent with
our precedent. We have, for example, upheld the denial of an
acceptance-of-responsibility adjustment based on attempts to
smuggle drugs into a prison, see United States v. Lagasse, 87 F.3d
18, 25 (1st Cir. 1996); see also United States v. Stebbins, 523 F.
App'x 1, 4-5 (1st Cir. 2013), and the use of marijuana in violation
2 The defendant argues that the PSI Report's reliance on Jordan is misplaced, complaining that the post-offense conduct in Jordan was much more severe than his misconduct. Moreover, the defendant in Jordan did not save the government additional expense by waiving indictment. But this plaint sets up a straw man: the PSI Report refers to Jordan only to underpin the general proposition that a district court may consider post-offense criminal conduct in assessing a defendant's acceptance of responsibility. See Jordan, 549 F.3d at 61.
- 15 - of bail conditions, see United States v. O'Neil, 936 F.2d 599,
599-601 (1st Cir. 1991). In each of these cases — even though the
conduct may not have "compel[led] the denial of credit for
acceptance of responsibility" — a court could reasonably conclude
that the conduct was "inconsistent with [the defendant's] claimed
remorse." Lagasse, 87 F.3d at 25. So it is here: the district
court supportably found that the defendant had not ceased all
criminal activity, which bespoke an insincere acceptance of
responsibility despite his guilty plea and other laudable conduct.
See deJesús, 6 F.4th at 148-49; Jordan, 549 F.3d at 61 ("Criminal
conduct, whatever its nature, is a powerful indicium of a lack of
contrition.").
If more were needed — and we doubt that it is — the
defendant's post-offense conduct, as described in the PSI Report,
was particularly revealing on the issue of insincerity. Not only
did the conduct involve dissembling when confronted with evidence
of wrongdoing, but it also followed a lengthy criminal past. That
criminal history, in the court's estimation, bore witness to the
defendant's unwillingness or inability to comply with the law.
Viewed through this prism, the district court could reasonably
conclude — as it did — that the post-offense conduct showed that
the defendant's willingness to plead guilty was not motivated by
remorse or contrition.
- 16 - The defendant resists this conclusion. He predicts that
if the district court's ruling is affirmed, we will have sanctioned
a per se rule that any post-arrest criminal conduct forecloses an
offense-level reduction for acceptance of responsibility. This is
evident, he says, because "it is hard to comprehend under what
factual scenario a defendant would be entitled to a reduction for
acceptance of responsibility if he committed any crime after being
charged." Such a per se rule would, he warns, undermine the
purpose of section 3E1.1 and discourage individuals from pleading
guilty.
We think this warning overblown. The district court's
determination does not mean that post-offense criminal conduct
necessarily precludes an acceptance-of-responsibility adjustment
in every case. The court's decision reflects only that in the
defendant's case, his particular transgressions in prison
outweighed his claim (which the court apparently found insincere)
that he had clearly demonstrated his acceptance of responsibility
for the offense of conviction. The court did not indicate that it
was announcing a per se rule, and we specifically hold that no
such rule obtains.
We need go no further. We hold that the district court's
decision to deny the acceptance-of-responsibility adjustment was
- 17 - not clearly erroneous.3 See Jordan, 549 F.3d at 62; see also
Carrington, 96 F.3d at 9-10. Consequently, that decision must
stand.
III
For the reasons elucidated above, the challenged
sentence is
Affirmed.
3 The government argues that even if the district court clearly erred, any such error would be harmless given that the sentencing court made clear that it would have imposed the same sentence, "untethered" to the guidelines, and without regard to its ruling on acceptance of responsibility. Because we find that the district court did not clearly err, we need not address this argument.
- 18 -