United States v. Thomas T. Jones

997 F.2d 1475, 302 U.S. App. D.C. 273, 1993 U.S. App. LEXIS 16073, 1993 WL 236294

• Court: Court of Appeals for the D.C. Circuit
• Decided: July 2, 1993
• Docket: 91-3025
• Status: Published

Opinions

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

Dissenting opinion filed by Chief Judge MIKVA.

Dissenting opinion filed by Circuit Judge WALD.

Dissenting opinion filed by Circuit Judge SENTELLE.

STEPHEN F. WILLIAMS, Circuit Judge:

The issue presented in this case is quite straightforward: whether a sentencing judge who grants a defendant credit for acceptance of responsibility, thereby putting the defendant in a lower range under the Sentencing Guidelines, may take account of the defendant’s decision to go to trial when sentencing within the new, lower range. We hold that the judge may do so.

Following a three-day trial in November 1990, appellant was convicted by a jury of possessing 50 grams or more of cocaine base with intent to distribute, in violation of 21 U.S.C. §§ 841(a) and (b)(l)(A)(iii). The presumptive sentencing range, based on appellant’s Criminal History Category (I) and the applicable Base Offense Level (34), was 151— to-188 months. See U.S.S.G. §§ 2D1.1(a)(3) and Ch. 5, Pt. A. Despite appellant’s having gone to trial, the district judge granted him a two-level reduction for acceptance of responsibility under § 3E1.1 of the Guidelines. That lowered appellant’s sentencing range to 121-to-151 months. See U.S.S.G. Ch. 5, Pt. A.

Before selecting a point within the range, the judge expressed some concerns arising from the two-level reduction:

Let me tell you what my problem is, Mr. Katzoff [the defense attorney], not that I am not prepared to give him the benefit of the two-point reduction, because he did acknowledge responsibility. The question is should he receive the full benefit of the two-point reduction in view of the fact that he simply has acknowledged that he was guilty of what the jury found him guilty of, after having put the government to its proof on the matter, which, indeed, he does have a constitutional right to do. But he, in effect, had no defense.... And simply saying [after trial], “Yes, you got me this time,” is a rather meager basis upon which I might conclude that he truly was remorseful and had accepted full responsibility.

[Q]uery whether or not I should give him full credit for having accepted responsibility. I have a lot of difficulty with that.

The other side of the coin is that it is, in my judgment, an excessive penalty to pay under the Guidelines to give him no credit for acceptance of responsibility. Even if he had stonewalled, the idea that he gets an additional thirty months for stonewalling, which is what the Guidelines call for, seems to me to be unduly harsh and unfair.

Now I have given you the opposite ends of the spectrum on which I am operating here, I can tell you that my intention would be, because I disagree with the mandatory minimum sentence itself,¹ to give him the very minimum that I could give him under the Guidelines, and the mandatory minimum statutory sentence. But I am concerned about giving him full credit for acceptance of responsibility.

Sentencing Tr. at 2-4 (emphasis added).

The prosecutor and defense attorney then made sentencing recommendations, with the prosecutor and defense counsel respectively arguing for the top and the bottom of the range. After listening to counsel, the judge stated his decision:

I think that 151 months or, for that matter, a ten-year sentence in the circumstances of a case such as this is barbaric, but I have no choice in the matter.

This is undoubtedly an offense which would call for some jail time were I at liberty to impose a sentence that I would think would be fair in the case.

My ability to be fair has been constricted by the statutory inhibitions under which I operate and, to a somewhat lesser extent, the Guidelines.

I do think that there is some premium that should be recognized for pleading guilty in advance of trial rather than taking a ease to trial in which the defendant knows that he is guilty and he is properly charged and there is no defense to it.

I do, however, think that in the circumstances, I intend to give Mr. Jones a major portion of the benefit that he derives from his acceptance of responsibility.

I would, had this case been disposed of with a plea in advance of trial, have sentenced him at the very bottom of the Guidelines and imposed the minimum sentence that I could possibly have imposed.

Because, however, the case did go to trial, I am going to add an additional six months to the Guideline sentence that I intend to impose, and will impose a sentence of 127 months.

I am articulating this so that anybody that wishes to take it to the Sentencing Commission and/or the Court of Appeals may do so. I would like to have some thought given to the considerations I’ve articulated here today. And I would like to know whether or not there is some constitutional error I commit by recognizing that the case was taken to trial, albeit a matter of constitutional right to take the case to trial, rather than acknowledging in advance the guilt that was obviously supported by the proof.

Sentencing Tr. at 12-13 (emphasis added).

Jones appealed and this court affirmed, rejecting several claims of error, including Jones’s constitutional attack on his sentence. United States v. Jones, 973 F.2d 928 (D.C.Cir.1992). We granted rehearing en banc to reconsider the sentencing issue; we again affirm, although on narrower grounds.

Jones argues that the district judge’s 127-month sentence included an impermissible six-months penalty that was imposed because Jones exercised his constitutionally guaranteed right to trial. Assuming the ultimate validity of distinctions between denials of leniency and enhancements of punishment— see Corbitt v. New Jersey, 439 U.S. 212, 223-24, 99 S.Ct. 492, 499-500, 58 L.Ed.2d 466; United States v. White, 869 F.2d 822, 826 (5th Cir.1989); United States v. Araujo, 539 F.2d 287, 292 (2d Cir.1976) (quoting United States v. Thompson, 476 F.2d 1196, 1201 (7th Cir.1973)); but see Roberts v. United States, 445 U.S. 552, 557 n. 4, 100 S.Ct. 1358, 1362 n. 4, 63 L.Ed.2d 622 (1980) (expressing doubt as to whether a “principled distinction” may be drawn on the point) — it is clear from the sentencing transcript that the district judge could not properly be described as enhancing appellant’s punishment. Instead, in considering appellant’s decision to admit guilt only after conviction, the judge merely viewed, the appellant’s timing as pertinent to the scope of the benefit that he should receive for acceptance of responsibility. The judge decided he should give appellant less of a benefit than he would have allowed an otherwise identical defendant who showed greater acceptance of responsibility by acknowledging his guilt at an earlier stage.

Throughout the sentencing proceeding the district judge focussed on the limited character of appellant’s acceptance of responsibility. At the outset he explicitly framed the question at issue as whether the appellant should receive “the full benefit of the two-point reduction” in light of his belated admission of guilt. Sentencing Tr. at 3 (emphasis added). He immediately followed up with the observation that the appellant’s conduct furnished “a rather meager basis upon which ... [to] conclude that he truly was remorseful and had accepted full responsibility.” Id. at 3 (emphasis added). Accord id. (“query whether or not I should give him full credit for having accepted responsibility” (emphasis added)). At the end he decided that the appellant deserved a “major portion” of the “benefit” that could be obtained for acceptance of responsibility. Id. at 13. Concentrating on whether appellant’s conduct was consistent with the sort of remorse or contrition that would justify a full 30-month reduction, the judge decided it was not.

Since long before the Guidelines, the law has allowed sentencing judges to show leniency to defendants who demonstrate contrition and acceptance of responsibility for their crimes. See, e.g., Corbitt v. New Jersey, 439 U.S. 212, 224, 99 S.Ct. 492, 500, 58 L.Ed.2d 466 (1978); Brady v. United States, 397 U.S. 742, 751, 90 S.Ct. 1463, 1470-71, 25 L.Ed.2d 747 (1970). The law also has long recognized that a defendant’s decision to plead guilty is good evidence of acceptance of responsibility and possibly even sincere remorse. See, e.g., id. at 753, 90 S.Ct. at 1471— 72 (defendant who pleads “extends a substantial benefit to the State and ... demonstrates by his plea that he is ready and willing to admit his crime and to enter the correctional system in a frame of mind that affords hope for success in [quicker] rehabilitation”); Alabama v. Smith, 490 U.S. 794, 802, 109 S.Ct. 2201, 2206, 104 L.Ed.2d 865 (1989); United States v. McLean, 951 F.2d 1300, 1303 n. 2 (D.C.Cir.1991). In the absence of what one member of the court at oral argument called a “Remorse-o-meter” to gauge the defendant’s level of sincerity, sentencing judges are almost bound — and certainly permitted — to look at a defendant’s objective conduct, inferring the greatest remorse, other things being equal, from the promptest acknowledgements of guilt. The whole notion of showing leniency to some deserving' defendants — that is, of treating them more mildly than others — requires withholding leniency from others who appear less deserving. Cf. United States v. Wilson, 506 F.2d 1252, 1259-60 (7th Cir.1974) (“Although a heavier sentence for one who has been convicted after trial and a lighter sentence for one who pleads guilty are in a sense two sides of the same coin, it is within proper bounds for the court to preserve some leeway so that it is able to extend leniency in consideration of the cooperation and at least superficial penitence evidenee[d] by one who pleads guilty”).

Reflecting the same principles as the case law, the Sentencing Guidelines identify “voluntary and truthful admission to authorities” and the “timeliness of the defendant’s [remorseful or helpful] conduct” as indicia of acceptance of responsibility and as therefore pertinent to whether the court should allow the defendant the two-point reduction. See U.S.S.G. § 3E1.1, Application Notes 1(c) & 1(g).² The Guidelines explicitly tell judges that they normally should deny the two-point reduction to a defendant who does not plead guilty. See id., Application Note 2. Numerous courts considering the matter have upheld the Guideline direction to draw this distinction.³ See, e.g., United States v. Parker, 903 F.2d 91, 105 (2d Cir.1990); United States v. Frazier, 971 F.2d 1076, 1086 (4th Cir.1992); United States v. White, 869 F.2d 822, 826 (5th Cir.1989) (per curiam); United States v. Cordell, 924 F.2d 614, 619 (6th Cir.1991); United States v. Saunders, 973 F.2d 1354, 1362 (7th Cir.1992); United States v. Gonzalez, 897 F.2d 1018, 1020 (9th Cir.1990); United States v. Henry, 883 F.2d 1010, 1011-12 (11th Cir.1989) (per curiam); see also Brady, 397 U.S. at 751, 90 S.Ct. at 1470 (guilty plea not invalid merely because “motivated by the defendant’s desire to accept the certainty or probability of a lesser penalty”).

Despite these principles, there remains the possibility that Jones’s sentence might be classified as an impermissible burden placed on the exercise of a constitutional right. But if, as both parties assume and Corbitt suggests, a line is to be drawn between the enhancement of a sentence and the withholding of leniency, that line must,' in this context anyway, depend on the presence of a baseline. See, e.g., United States v. Klotz, 943 F.2d 707, 710 (7th Cir.1991). Here, there can be little doubt that the baseline sentence for Jones was well above the 127 months ultimately imposed.

Once Jones was convicted, he faced a presumptive sentencing range of 151-188 months. One can argue about whether that created a baseline at a point somewhere within the range (and if so where), or whether the baseline is properly perceived as “the range itself’. See Klotz, 943 F.2d at 710-11. It seems impossible, however, to place any baseline below 151 months. And if we take that as our baseline, the sentencing judge appears simply to have given the defendant four-fifths of the possible credit for acceptance of responsibility (24 out of 30 possible months), explaining that if Jones had shown greater evidence of contrition (in this instance by pleading guilty), the judge would have made a greater adjustment.

Jones argues that the proper baseline is 121 months. For this he relies heavily on the judge’s observations that the judge disagreed with the mandatory minimum sentence and, indeed, thought that “151 months or, for that matter, a ten-year sentence in the circumstances of a case such as this is barbar-ic_” Sentencing Tr. at 12. While such an observation might well be relevant in an unstructured world without the Guidelines or mandatory minima, that world is not ours. Accordingly, the judge’s comments at sentencing must be understood as explaining (1) his personal belief that a 10-year prison term was overly harsh — a belief that obviously cannot displace the benchmark established by the Guidelines; and (2) his legally relevant (and constitutionally unobjectionable) view that, within the 121-151 month range the judge was bound to work within, Jones’s limited remorse deserved only a 24-month reduction.

In arguing for the 121-month baseline, Jones also points us to United States v. Valencia, 957 F.2d 153 (5th Cir.1992), where the court overturned a sentencing judge’s decision to give a defendant only one point of the two-point reduction authorized by § 3E1.1 for acceptance of responsibility. Appellant argues that Valencia stands for the proposition that “[§] 3E1.1 of the Guidelines contemplates a full two level reduction for acceptance of responsibility, and does not contemplate the trial judge taking back a portion of that benefit.”

It is difficult to understand how Valencia helps appellant’s constitutional attack on his sentence. Obviously his formulation of the claim assumes his conclusion; unless the grant of two points for acceptance of responsibility carried with it a promise to sentence at the bottom of the new range, there was nothing for the judge to “take back”.

In addition, the interpretation of the Guidelines in Valencia was driven by concerns that seem wholly irrelevant here. The court noted that in § 3E1.1 the Sentencing Commission has called upon district courts to make a specific factual determination— whether, in the words of § 3E 1.1(a), the defendant has “clearly demonstrate[d]” acceptance of responsibility — a determination that is entitled to “great deference on review.” See id. at 156 (citing U.S.S.G. § 3E1.1, Application Note 5). The court feared that allowing a one-level reduction would permit district courts to “straddle the fence in close cases without explicitly finding whether the defendant did or did not accept responsibility,” and that such straddling would be difficult to evaluate on review. Id. The Valencia court responded to this concern by telling district courts that in close cases they should deny the reduction altogether; in those cases the defendant has not “clearly demonstrate[d]” acceptance of responsibility. See id. None of the concerns invoked by the Valencia court supports appellant’s claim that a judge is constitutionally barred from considering the belated and limited character of a defendant’s acceptance of responsibility when sentencing within the adjusted Guidelines range. In addition, because the judge in Valencia sentenced at the top of his completely synthetic range (a sentence of 120 months in a range of 97-121), and thus above the top of the range that a two-point reduction would have created, the sentence had no logical root in the Guidelines at all. Here the district judge gave two points and sentenced squarely within the resulting range.

Finally, footnote 4 of Valencia affirmatively contradicts Jones’s theory. There the court stated that after a district court denies credit for acceptance of responsibility in a close case, the sentencing court is “free to consider (or disregard) the defendant’s partial acceptance of responsibility” in choosing a sentence within the regular Guideline range. See id. n. 4. Thus, note 4 appears implicitly to adopt the Klotz view, supra, that the baseline is the “range itself’ and validates consideration of matters of constitutional right even when the court is sentencing within the normal presumptive range. Valencia therefore weighs strongly against Jones’s notion that once a district judge has considered facts relating to “acceptance of responsibility” for purposes of the two-point reduction, he must never in any way consider them again. Quite the opposite: if the judge may consider elements militating in favor of acceptance after he has denied acceptance credit, as Valencia says, we cannot fathom why he should not be free to consider elements militating against acceptance after he granted such credit. The Guidelines are rigid enough without courts adding this further note of Procrusteanism.

When a sentencing judge gives a defendant credit for acceptance of responsibility, the judge may consider the defendant’s decision to go to trial as evidence that the defendant’s ultimate acceptance may have been half-hearted, and may therefore reduce the sentence less than if the defendant had acknowledged guilt earlier in the process.

The judgment of conviction is

Affirmed.

1 . Appellant faced a mandatory minimum sentence of ten years as a result of the conviction for possession of 50 or more grams of cocaine base with intent to distribute. See 21 U.S.C. § 841 (b)(l )(A)(iii).

2 . All citations to the Guidelines refer to the 1990 version; that version was in effect at the time of Jones’s sentencing.

3 . Although the Supreme Court has made clear that when a legislature devises a sentencing regime it may take account of instrumental considerations such as the systemic benefit of reducing the number of trials, see, e.g., Corbitt v. New Jersey, 439 U.S. at 223, 99 S.Ct. at 499-500; Brady, 397 U.S. at 753, 90 S.Ct. at 1471-72, we need not here address whether a judge may do so in imposing a sentence; there is no evidence that the district judge considered such factors in this case.