In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3941
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JOHN D EL EON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 249-1—Matthew F. Kennelly, Judge.
A RGUED F EBRUARY 10, 2009—D ECIDED M AY 4, 2010
Before C UDAHY, W ILLIAMS, and T INDER, Circuit Judges.
T INDER, Circuit Judge. After withdrawing a guilty plea,
John DeLeon went to trial to contest three charges
against him on a theory of entrapment. The jury acquitted
him of two drug-related charges but was unable to reach
a verdict on the third charge, counterfeiting. DeLeon
subsequently pleaded guilty to the counterfeiting charge
without a plea agreement (sometimes referred to as a
“blind plea”). The district court sentenced DeLeon to a
2 No. 07-3941
within-Guidelines 104 months. DeLeon challenges the
calculation of his Guidelines range on two grounds. First,
he argues that he should not have been subject to the
obstruction of justice enhancement. See U.S. Sentencing
Guidelines Manual (“U.S.S.G.”) § 3C1.1 (2007). Second,
he argues that he should have been given the benefit of
the acceptance of responsibility reduction. See id. § 3E1.1.
For the reasons stated below, we disagree on both
grounds and affirm.
I. Background
John DeLeon and David Postma, along with a few other
individuals, hatched a plan under which they would
produce counterfeit money and use it to purchase drugs.
But DeLeon was unaware that his primary partner in
crime was also in cahoots with the government; Postma,
DeLeon’s landlord, was acting as a confidential informant
and secretly videotaped many of their plan-related con-
versations and preparations. When DeLeon attempted to
exchange $100,000 in counterfeit cash for five kilograms
of (sham) cocaine that Postma procured, federal officials
arrested him and charged him with conspiracy to distrib-
ute more than 500 grams of cocaine, 21 U.S.C. §§ 841(a)(1),
846, attempt to possess with intent to distribute more
than 500 grams of cocaine, 18 U.S.C. § 2; 21 U.S.C. § 846,
and counterfeiting U.S. currency, 18 U.S.C. §§ 2, 471.
DeLeon pleaded not guilty to all three charges. On
April 14, 2006, three days before his trial was scheduled
to begin, DeLeon appeared before the district court with
two complaints: that he had not had the opportunity to
No. 07-3941 3
fully review the videotapes Postma made, and that he
was dissatisfied with his appointed counsel, the third
attorney he had received. The district court made ar-
rangements for DeLeon to have access to video viewing
equipment and moved the trial back one day but refused
to grant DeLeon’s request for new counsel. DeLeon
protested that the last time he had spoken to his attorney
was over two months ago, but the court dismissed
his request for new counsel as untimely.
The afternoon before his trial was to begin, DeLeon
again appeared before the court. This time, however, he
sought to enter a guilty plea to all three charges. The
district court engaged DeLeon in an extensive colloquy,
during which DeLeon stated that he did not want to go
to trial yet simultaneously felt pressured to plead guilty.
The court told DeLeon that if he did not want to
plead guilty he could proceed to trial the next day as
scheduled. The court then recessed to give DeLeon an
opportunity to meet with counsel to discuss his pleading
options. Upon his return to the courtroom, DeLeon reaf-
firmed his desire to plead guilty to all three charges. The
rest of the plea colloquy passed uneventfully, and the
district court entered a finding of guilty.
Four months later, in August 2006, DeLeon, represented
by new counsel, moved to withdraw his guilty plea. In
his motion, DeLeon alleged that his previous attorney
told him that he had not prepared for trial because he
had a heavy caseload, and that he should plead guilty
because no defense was prepared. DeLeon also asserted
that he had not voluntarily pleaded guilty. The motion
4 No. 07-3941
was accompanied by a sworn declaration in which
DeLeon stated that he had “reviewed the entire motion”
and “verif[ied] that the facts contained therein are all
true and accurate” to his knowledge. The district court
held a hearing on the motion, at which DeLeon’s
previous attorney denied ever telling DeLeon that he
was unprepared for trial due to a heavy caseload. The
attorney also denied the allegation that he told DeLeon
to plead guilty because there was no defense prepared.
When DeLeon took the stand, he admitted on cross-
examination that his attorney had not made either
alleged statement.
The court expressed displeasure with the untruths
DeLeon had included in his motion, but still granted the
motion to withdraw the guilty plea. The court explained
that it was granting the motion because the records
from the April 14, 2006 hearing and DeLeon’s April 17,
2006 plea colloquy reflected both DeLeon’s genuine
belief that his counsel was unprepared and the court’s
own shortcomings in failing to question DeLeon more
extensively about the “irreconcilable differences” cleaving
his relationship with counsel.
DeLeon eventually proceeded to trial in June 2007.
He argued that he was entrapped into committing all
three offenses. The jury acquitted him of the two drug-
related charges but was unable to reach a verdict on
the counterfeiting charge. The district court scheduled
a status hearing for July, by which point DeLeon had
decided to plead guilty to the counterfeiting charge
rather than go through another trial. The court ordered
No. 07-3941 5
an updated Presentence Investigation Report (“PSR”),
and after several continuances set DeLeon’s sentencing
for November 2007.
The PSR determined that DeLeon had 14 criminal
history points, which placed him in criminal history
Category VI, the highest category. See U.S.S.G. § 5A (Sen-
tencing Table). DeLeon does not dispute the accuracy of
the criminal history calculation. The PSR calculated
DeLeon’s offense level to be 31. The counterfeiting charge
had a base offense level of nine, U.S.S.G. § 2B5.1(a), and
the PSR added two levels because DeLeon manufactured
the notes and possessed the materials to do so, U.S.S.G.
§ 2B5.1(b)(2); two levels because DeLeon had a leader-
ship role in the conspiracy, U.S.S.G. § 3B1.1(c); two
levels because DeLeon had obstructed justice by pro-
viding false testimony in both a pretrial affidavit and at
his trial, U.S.S.G. § 3C1.1; and sixteen levels because
it concluded that one of DeLeon’s previous counter-
feiting endeavors was “relevant conduct” that pushed
his counterfeiting total above $1 million (but less than
$2.5 million), U.S.S.G. §§ 1B1.3(a)(2), 2B1.1(b)(1)(I),
2B5.1(b)(1)(B). The PSR did not apply the two-level accep-
tance of responsibility reduction, U.S.S.G. § 3E1.1, noting
that conduct resulting in an obstruction of justice en-
hancement generally precludes application of the down-
ward adjustment, see U.S.S.G. § 3E1.1 cmt. n.4. The PSR
used its two calculations to recommend a sentence
ranging from 188 to 235 months.
At DeLeon’s sentencing hearing, the district court
concluded that the government failed to prove by a
6 No. 07-3941
preponderance of the evidence that the sixteen-level
enhancement predicated on DeLeon’s alleged “relevant
conduct” was warranted. It found no common scheme
or plan underlying DeLeon’s counterfeiting episodes,
which involved different “key coschemer[s].” Tr. 47,
Nov. 19, 2007. It thus determined that the face value of
the counterfeit items was $100,000, resulting in an en-
hancement of eight levels rather than sixteen. See U.S.S.G.
§§ 2B1.1, 2B5.1. The district court found that the gov-
ernment carried its burden with respect to the obstruc-
tion of justice enhancement, however. Though it declined
to classify DeLeon’s trial testimony as obstructive, it
reiterated its earlier finding that DeLeon testified falsely
in his motion to withdraw his guilty plea and again
when he told the court that he pleaded guilty voluntarily.
The court determined that DeLeon’s false statements
were material.
The court lastly considered the application of the accep-
tance of responsibility reduction. See U.S.S.G. § 3E1.1. It
agreed with DeLeon that application of the obstruction
of justice enhancement does not necessarily require
denial of the acceptance of responsibility reduction, but
ultimately denied the reduction because it concluded
that DeLeon had not satisfactorily demonstrated that it
was applicable. It opined that DeLeon did not carry his
“burden to show acceptance of responsibility,” Tr. 53,
Nov. 19, 2007, because he had not “expressed sincere
remorse,” id. at 21, or otherwise demonstrated “the type
of acceptance that the guidelines talk about,” id. at 53.
The district court further found that DeLeon’s decision to
“put it all behind him . . . and plead guilty to the charge
No. 07-3941 7
on which the jury deadlocked by itself does not entitle
him to acceptance of responsibility . . . ,” id. at 53, particu-
larly where DeLeon repeatedly and explicitly denied
responsibility for the counterfeiting at his trial, see Tr. 64,
June 20, 2007 (“If Dave didn’t threaten me with losing
my house, I didn’t—I had no intention of making any
counterfeit money. . . . Besides, if Dave didn’t come to
me with this deal, I wouldn’t even have a connection to
make counterfeit money for. If he didn’t make me feel
like I was going to lose the only house for me, Erica,
and the kids to live in, I wouldn’t have done this at all.” );
id. at 80 (asserting, in response to cross-examination,
that he had been forced and threatened into making
counterfeit).
After making these adjustments, the court calculated
DeLeon’s offense level to be 23, which, coupled with his
Category VI criminal history, resulted in a Guide-
lines range of 92-115 months. DeLeon requested a below-
Guidelines sentence of 72 months, citing various
18 U.S.C. § 3553(a) factors including his family responsi-
bilities and the disparity between his sentence and that
of another person sentenced in connection with the
same scheme. The court addressed DeLeon’s concerns
and other § 3553(a) factors but did not adopt DeLeon’s
suggested sentence. Instead, citing DeLeon’s signifi-
cant criminal history and apparent anger management
issues, the court sentenced him to 104 months, right in
the middle of the Guidelines range.
8 No. 07-3941
II. Discussion
DeLeon challenges both the district court’s application
of the obstruction of justice enhancement and its denial of
the acceptance of responsibility reduction. We consider
his arguments in turn.
A. Obstruction of Justice Enhancement
Under U.S.S.G. § 3C1.1, a defendant’s offense level
should be enhanced by two levels if “the defendant
willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during
the course of the investigation, prosecution, or sentencing
of the instant offense of conviction.” This provision is
known as the “obstruction of justice enhancement,” or,
here, simply the “enhancement.” The district court
applied the enhancement because it found that DeLeon
lied under oath during the course of his proceedings.
We review the court’s factual findings supporting the
obstruction of justice enhancement for clear error. United
States v. Powell, 576 F.3d 482, 498 (7th Cir. 2009). That
means that “[t]he district court’s factual findings will
stand as long as they are ‘plausible in light of the record
in its entirety.’ ” Id. (quoting United States v. White, 368
F.3d 911, 916 (7th Cir. 2004), vacated on other grounds by
543 U.S. 1105 (2005)). We review de novo, however,
whether those findings adequately support the applica-
tion of the enhancement. United States v. Anderson, 580
F.3d 639, 648 (7th Cir. 2008).
The district court concluded that DeLeon “made untrue
statements and did so intentionally as the law defines that
No. 07-3941 9
term” in his sworn motion to withdraw his plea. Tr. 51,
Nov. 19, 2007. Specifically, the district court found that
DeLeon lied in his sworn statement when he claimed that
his previous attorney “had not prepared a trial defense
or devised a trial strategy . . . in part from his case load,”
and lied again when he claimed that his previous
counsel “began telling [him] to plead guilty.” Id. The
district court dismissed DeLeon’s assertion that he
simply overlooked those statements when he signed a
declaration affirming the motion’s truth, and noted that
it “definitely relied on both of those two things in
granting a hearing on the motion to withdraw the guilty
plea.” Id. Indeed, it opened the hearing by stating that
“some representations were made in Mr. DeLeon’s
motion and the supporting papers about what [DeLeon’s
prior attorney] had said, and it seemed to me that it
would be beneficial to get [the attorney’s] testimony
about those matters.” Tr. 3, Nov. 30, 2006. The court
clarified that it “heard other things at the hearing itself
that [it] relied on in granting the motion,” but nonetheless
found DeLeon’s statements about his attorney “quite
clearly material.” Tr. 51-52, Nov. 19, 2007.
The court also found DeLeon’s statement that he was
pleading guilty voluntarily to be false and material. The
district court twice noted that this statement was not
“essential to a finding of obstruction of justice,” id. at
52, so the extent to which it relied on that statement
in applying the enhancement is unclear. DeLeon none-
theless challenges the applicability of the enhancement
to both his motion and plea colloquy statements. We
direct our attention first to the statement about his attor-
10 No. 07-3941
ney’s lack of preparedness and heavy caseload that
DeLeon made in his motion.
Committing, suborning, or attempting to suborn per-
jury constitutes an obstruction of justice under U.S.S.G.
§ 3C1.1. United States v. Gonzalez-Mendoza, 584 F.3d 726,
730 (7th Cir. 2009). (Providing materially false informa-
tion to a judge is also grounds for the application of the
enhancement. U.S.S.G. § 3C1.1 cmt. n.4(f).) “Perjury” for
sentencing enhancement purposes is equivalent to that
defined in 18 U.S.C. § 1621. See United States v. Dunnigan,
507 U.S. 87, 94 (1993); United States v. Arambula, 238
F.3d 865, 868 (7th Cir. 2001). Thus, the enhancement is
properly applied only when a defendant gives “false
testimony under oath or affirmation concerning a
material matter with the willful intent to provide false
testimony, rather than as a result of confusion, mistake, or
faulty memory.” Arambula, 238 F.3d at 868; see also
Gonzalez-Mendoza, 584 F.3d at 730. The court’s conclusion
that DeLeon was willfully untruthful in making a state-
ment is a finding of fact that we are reluctant to disturb;
we generally give special deference to a district court’s
credibility determinations. Gonzalez-Mendoza, 584 F.3d at
730. Such determinations are reviewed only for clear
error, a standard under which we reverse the district
court only if we are “firmly convinced after we review
all the evidence that a mistake has been made.” United
States v. Orozco-Vasquez, 469 F.3d 1101, 1107 (7th Cir.
2006). We are not even marginally convinced that the
district court was mistaken in concluding that DeLeon
willfully lied in his motion to withdraw his guilty plea.
No. 07-3941 11
DeLeon readily concedes the statement about his attor-
ney’s preparedness and caseload was false, but main-
tains it was immaterial. Materiality is a critical element
of 18 U.S.C. § 1621, which renders it important to the
enhancement here. The Sentencing Guidelines classify as
“material” “evidence, fact, statement, or information
that, if believed, would tend to influence or affect the
issue under determination.” U.S.S.G. § 3C1.1 cmt. n.6.
DeLeon urges us to approach the question of materiality
from a narrower perspective; he asserts that a state-
ment can only be material if it is likely to affect the
ultimate outcome of the judicial process—the defendant’s
guilt or acquittal. See United States v. Craig, 178 F.3d 891,
901 (7th Cir. 1999). While we have addressed the ques-
tion of materiality in those terms, see, e.g., Arambula, 238
F.3d at 868, we have also concluded that “a lie influencing
a pretrial issue will, in an attenuated sense, influence the
ultimate outcome of the case itself,” United States v.
Galbraith, 200 F.3d 1006, 1014 (7th Cir. 2000). Thus, “a
falsehood told at a pretrial hearing is material if it is
calculated to substantially affect the issue under deter-
mination at that hearing.” Id. We see no reason to
abandon the logic of Galbraith in our evaluation of the
district court’s assessment of materiality here.
DeLeon also contests the district court’s determina-
tion that he had the requisite perjurious intent to implicate
the enhancement. With respect to the caseload statement,
he argues that because he recanted it when he took the
stand at the hearing on the motion, he could not have
intended it to affect any material issues in the case.
12 No. 07-3941
DeLeon purports to find a foundation for this argument
in 18 U.S.C. § 1623(d), the statutory defense to perjury:
Where, in the same continuous court or grand jury
proceeding in which a declaration is made, the
person making such declaration admits such
declaration to be false, such admission shall bar
prosecution under this section if, at any time the
admission is made, the declaration has not sub-
stantially affected the proceeding, or it has not
become manifest that such falsity has been or
will be exposed.
This argument has some logical appeal—if obstruction
of justice is defined in terms of perjury, it seems as
though it should be defensible on those terms as well—
but it lacks support in the text of U.S.S.G. § 3C1.1 and its
application notes. The obstruction of justice enhance-
ment can apply to any statement made to a judge that, if
believed, “would tend to influence or affect the issue
under determination.” U.S.S.G. § 3C1.1 cmt. n.6; see id.
cmt. n.4(f). Nothing in U.S.S.G. § 3C1.1 or its application
notes suggests that defendants who later recant their
attempts to obstruct justice avoid the enhancement
merely because the court has yet to render its final deci-
sion. To the contrary, U.S.S.G. § 3C1.1 expressly reaches
attempts by defendants to obstruct justice, and our
circuit has made clear that “[a]ll that is required for
obstruction of justice is that the act ‘could affect, to
some reasonable probability, the outcome of the judicial
process; the [act] does not have to succeed in affecting
the outcome.’ ” United States v. Mayberry, 272 F.3d 945, 949
No. 07-3941 13
(7th Cir. 2001) (quoting United States v. Duncan, 230
F.3d 980, 988 (7th Cir. 2000)); see also United States v.
Nobles, 69 F.3d 172, 192 (7th Cir. 1995) (holding that a
defendant’s “ultimate lack of success for obstructing
justice will not relieve his responsibility for his at-
tempt to do so”). Both the Guidelines and our case law
focus on the defendant’s intent, and the false state-
ment’s potential influence, at the time the false statement
is made, not at the time the court ultimately makes its
decision. See United States v. Dillon, 905 F.2d 1034, 1039
(7th Cir. 1990) (upholding application of obstruction
of justice enhancement when defendant provided the
false name of a cocaine source to a government agent
and recanted it the next day). Section 1623(d) is thus
unavailing to DeLeon.
Even if 18 U.S.C. § 1623(d) applied, however, DeLeon’s
argument would still fall flat because he failed to
satisfy either of its two prongs, immateriality (lack of a
substantial effect on the proceedings) and exposure of
the falsity before it has otherwise become manifest. The
district court explicitly stated that it “definitely relied on”
the statements contained in DeLeon’s motion in “granting
a hearing on the motion.” Tr. 51, Nov. 19, 2007. It
conceded that it relied on “other things” it learned at the
hearing itself in making its ultimate decision to grant the
motion, but reiterated that “those two [statements] were
clearly material.” Id. at 52. These statements regarding
materiality satisfy the district court’s burden of making
“independent findings as to all of the elements of
perjury . . . .” with respect to the materiality element.
United States v. Ellis, 548 F.3d 539, 545 (7th Cir. 2008). The
district court’s factual finding of materiality is more
14 No. 07-3941
than plausible on the record, so we decline DeLeon’s
invitation to disturb it. Powell, 576 F.3d at 498.
DeLeon also departed from both the letter and spirit of
the back half of 18 U.S.C. § 1623(d)’s immunizing provi-
sion, “it has not become manifest that such falsity has
been or will be exposed.” By the time DeLeon alerted the
district court to the falsity of the caseload statement in
his motion to withdraw his guilty plea, its falsity had
been exposed by not one but two witnesses. DeLeon’s
former attorney and DeLeon’s mother, both of whom
testified weeks before DeLeon (the hearing was con-
tinued), categorically stated that the attorney never said
he was unprepared, for any reason. Moreover, DeLeon
did not affirmatively seek to correct the record by
recanting the statement once he took the stand. He only
conceded that his attorney never said “I am unprepared,”
or anything to that effect, after the government asked
him about it three times on cross-examination. Tr. 37,
Dec. 21, 2006.
Nor do we object to the district court’s summary
finding of intent. The district court’s conclusion that
DeLeon made the statements in his motion “intentionally
as the law defines that term,” Tr. 51, Nov. 19, 2007, is
supported by the record. The attorney, DeLeon, and
DeLeon’s mother all categorically stated that the attorney
never said he was unprepared, for any reason. Aside
from DeLeon’s assertion in the motion, there is not an
iota of discussion about the attorney’s caseload in the
record. The only rational explanation for DeLeon’s in-
clusion of it in the motion is its bolstering effect on the
No. 07-3941 15
unpreparedness and “he told me to plead guilty” claims.
The district court found DeLeon’s explanation that he
overlooked the false statements when signing his dec-
laration implausible, id., which supports its conclusion
that DeLeon intended to testify falsely. We see no error
in the district court’s finding. See United States v. Bryant,
557 F.3d 489, 501 (7th Cir. 2009) (“The district court
simply based its determination . . . on its evaluation of
the sworn statements of Mr. Bryant and his former at-
torney. We cannot say that the district court clearly
erred in reaching its conclusion.”).
The question then becomes whether DeLeon’s false
statement about his attorney’s lack of preparation and
heavy caseload supports the application of the obstruc-
tion of justice enhancement. We give this question a
plenary review, see Anderson, 580 F.3d at 648, and we
conclude that the answer is yes. Fabricating a story to
increase the probability that the district court will act in
a specific way is quite troubling and is precisely the type
of conduct that the obstruction of justice enhancement
was designed to deter. The statement DeLeon reported
to the court was particularly troubling in this respect
because it indicated a possibility that other indigent
defendants whose cases the court (and other courts)
entrusted to DeLeon’s attorney could have been re-
ceiving inadequate representation as well. The American
Bar Association has recognized that “in many cases,
indigent defense attorneys fail to fully conduct inves-
tigations, prepare their cases, or advocate vigorously
for their clients at trial and sentencing.” Am. Bar Assoc.
Standing Comm. on Legal Aid & Indigent Defendants,
16 No. 07-3941
Gideon’s Broken Promise: America’s Continuing Quest for
Equal Justice 19 (2004), available at http://www.abanet.org/
legalservices/sclaid/defender/brokenpromise/fullreport.
pdf (last visited Apr. 29, 2010). Thus, a problem like that
DeLeon alleged may have been a canary in the coal mine
of a much broader crisis, both with his attorney and the
bar generally, and the district court was left with little
choice but to treat it seriously. See Code of Conduct for
United States Judges, Canon 3B(5). DeLeon’s allegations
put the court against a wall, and regardless of his ulti-
mate retraction they impeded the forward progress of
his case. See U.S.S.G. § 3C1.1.
Even though DeLeon ultimately acknowledged
the falsity of the statement about his attorney’s lack of
preparation and heavy caseload, it was not without
consequence. See United States v. Wells, 154 F.3d 412, 414
(7th Cir. 1998) (stating that obstruction of justice that
“has no consequence . . . is not a permissible basis” for
enhancement). DeLeon’s statements went “well beyond
a mere declaration of innocence.” United States v. Kroledge,
201 F.3d 900, 908 (7th Cir. 2000). He intentionally con-
cocted a scenario under which his guilty plea would have
been improperly made, which “impeded . . . the adminis-
tration of justice with respect to the . . . prosecution . . . of
the instant offense of conviction.” U.S.S.G. § 3C1.1. We
therefore affirm the application of the obstruction of
justice enhancement on the basis of this statement. Cf.
United States v. Dean, 574 F.3d 836, 846 (7th Cir. 2009)
(finding a defendant’s statement under oath that he
never sold methamphetamine sufficient to support the
obstruction enhancement).
No. 07-3941 17
DeLeon’s statement about his attorney’s lack of prepara-
tion and heavy caseload alone supports the application
of the enhancement. We therefore need not address the
district court’s other stated grounds for the enhance-
ment, DeLeon’s allegation that his attorney “told me to
plead guilty” and, possibly, his conflicting statements in
open court about whether he was pleading guilty volun-
tarily or involuntarily. United States v. Nurek, 578 F.3d
618, 622 n.1 (7th Cir. 2009), cert. denied, ___ S. Ct. ___, 2010
WL 1525841 (Apr. 19, 2010) (No. 09-8147). We note, how-
ever, that both these statements were predicated upon
his contention that his attorney was unprepared: as a
consequence of his unpreparedness, the attorney
allegedly told DeLeon his only choice was to plead
guilty and then pressured him to do so. With the founda-
tion for these statements conceded to be false, and
properly deemed supportive of the enhancement, we are
skeptical about but decline to reach DeLeon’s arguments
regarding the remaining statements.
B. Acceptance of Responsibility Reduction
Pursuant to U.S.S.G. § 3E1.1, a defendant who “clearly
demonstrates acceptance of responsibility for his of-
fense” should have his offense level decreased by two
levels. The PSR did not recommend that DeLeon receive
the reduction. Likewise, the district court concluded
that DeLeon had not demonstrated acceptance of respon-
sibility in such a way as to receive the benefit of the re-
duction. The district court found that DeLeon’s post-trial
decision to “put it all behind him . . . and plead guilty
18 No. 07-3941
to the charge on which the jury deadlocked by itself does
not entitle him to acceptance of responsibility . . . .” Tr. 53,
Nov. 19, 2007. It opined that this was not “the type of
acceptance that the guidelines talk about,” id., and
further noted that “[t]his is not a situation where he has
expressed sincere remorse,” id. at 21. We review the
district court’s factual determination that DeLeon did
not accept responsibility for clear error. United States v.
Sellers, 595 F.3d 791, 793 (7th Cir. 2010); cf. United States
v. Gilbertson, 435 F.3d 790, 799 (7th Cir. 2006) (“[A]n
appellate court is ill-equipped to assess whether a par-
ticular defendant is motivated by genuine acceptance of
responsibility or by a self-serving desire to minimize
his own punishment. Unlike the district court judge, we
do not enjoy a ‘front row seat’ from which to assess
[the defendant’s] statements and demeanor.” (quota-
tions omitted)); U.S.S.G. § 3E1.1 cmt. n.5 (“[T]he deter-
mination of the sentencing judge is entitled to great
deference on review.”).
DeLeon argues that clear error is present here. He
claims that the district court denied him the reduction
solely because he chose to go to trial, notwithstanding
his consistent admissions of responsibility for counter-
feiting and his decision not to go to trial again after the
jury was unable to reach a verdict. He contends that he
did not contest any “essential factual elements of guilt” at
his trial, id. cmt. n.2, and emphasizes that he was not
convicted of any charge. He also points to U.S.S.G. § 3E1.1
cmt. n.1, which in his view contains three factors that
should have tipped the district court’s decision the other
way: “truthfully admitting the conduct comprising the
No. 07-3941 19
offense(s) of conviction, and truthfully admitting . . . any
additional relevant conduct,” id. at n.1(a), “voluntary
termination or withdrawal from criminal conduct or
associations,” id. at n.1(b), and “the timeliness of [his]
conduct in manifesting the acceptance of responsibility,”
id. at n.1(h). As explained below, we find his argu-
ments unpersuasive.
DeLeon’s first argument is at its core an assertion that
the district court punished him for exercising his right
to trial. This argument would have some teeth if it were
supported by the record. But it’s not. The record indicates
that the district court denied DeLeon the reduction
because he failed to express the sort of “sincere remorse,”
Tr. 21, Nov. 19, 2007, the Guidelines contemplate, see
U.S.S.G. § 3E1.1(a) (noting that a defendant must
“clearly demonstrate[ ] acceptance of responsibility for
his offense” to qualify for the reduction); United States v.
Boyle, 484 F.3d 943, 945 (7th Cir. 2007) (noting that “the
benefit [of the reduction] is reserved for those who
show contrition and remorse”); United States v. Johnson,
227 F.3d 807, 816 (7th Cir. 2000) (denying the reduction
where a defendant’s threat against a confidential
informant “belied any sense of remorse that should be
attendant to an acceptance of responsibility”). The
district court did bring up the fact that DeLeon went to
trial on the counterfeiting charge, but it did so to high-
light DeLeon’s repeated testimony that he was not guilty
because he was coerced. See Tr. 53, Nov. 19, 2007. For
instance, DeLeon told the jury that he had “no intention
of making any counterfeit money,” Tr. 64, June 20, 2007,
and that he was forced into counterfeiting, id. at 80. And
20 No. 07-3941
during his closing argument, DeLeon’s attorney argued
that “DeLeon was induced by the undercover informant
to do this,” Tr. 68, June 22, 2007, and told the jury that
“you have to find that on Count 3 [the counterfeiting
charge], too, John DeLeon was entrapped,” id. at 99. The
express denial of responsibility was the centerpiece of
DeLeon’s trial strategy, and only after it (partially) back-
fired did he admit that he was guilty of counterfeiting.
DeLeon is correct in asserting that his decision to
contest the counterfeiting charge at trial is not an auto-
matic bar to his receipt of an acceptance of responsibility
reduction. Indeed, “[i]n rare situations a defendant may
clearly demonstrate an acceptance of responsibility for
his criminal conduct even though he exercises his con-
stitutional right to a trial.” U.S.S.G. § 3E1.1 cmt. n.2. The
problem here is that DeLeon’s case is not one of the
exceptional ones. DeLeon went to trial not to make a
constitutional challenge to a statute or its applicability
to him, id., but to argue that he was entrapped into com-
mitting the conduct underlying all three charges. Even
though he admitted to counterfeiting at trial, he was
doing so in hopes of convincing the jury that, “I did it
but it was somebody else’s fault that I did it.” United
States v. Rector, 111 F.3d 503, 508 (7th Cir. 1997), overruled
on other grounds by United States v. Wilson, 169 F.3d 418,
428 n.9 (7th Cir. 1999). The entrapment defense by its
nature tends to negate an acceptance of responsibility, id.;
blaming someone else for one’s own actions is not the
sort of “genuine contrition” the acceptance of responsi-
bility reduction seeks to reward, United States v. Woodard,
408 F.3d 396, 397 (7th Cir. 2005).
No. 07-3941 21
In saying this, we do not hold that all defendants who
raise a defense of entrapment are consequently precluded
from receiving an acceptance of responsibility reduction;
in some rare instances, a defendant who alleges entrap-
ment may demonstrate through her pretrial statements
and conduct sincere remorse for her actions. See U.S.S.G.
§ 3E1.1 cmt. n.2. That is not the case here, however,
where DeLeon freely admitted that his “decision to go
to trial on the counterfeiting charge as opposed to
pleading guilty was [a] strategic one,” Reply Br. 4, told
the court that he “was telling you everything you
wanted to hear so I can get through the [pleading] pro-
ceedings,” Tr. 70, Dec. 21, 2006, and told the court only
that he was sorry that “the decisions I made put me in
the predicament to be entrapped, to be set up,” Tr. 85-86,
Nov. 19, 2007.
“[T]he sentencing judge is required to look beyond
formalistic expressions of culpability and to determine
whether the defendant has manifested an acceptance of
personal responsibility for his offenses in a moral sense.”
United States v. Cunningham, 103 F.3d 596, 598 (7th Cir.
1996) (quotations omitted). DeLeon formally pleaded
guilty after the jury hung on the counterfeiting charge,
but “pleading guilty eventually, rather than immediately,
is . . . a strike against acceptance points, for it does not
fully spare the government the burden of pretrial prepara-
tion and gives the impression of holding out for a deal
rather than cooperating from the outset.” Boyle, 484 F.3d
at 945. DeLeon may have saved the government some
preparation by forgoing a second trial, but he put it
22 No. 07-3941
through its paces during the first one. We are not con-
vinced that the district court erred by looking past
DeLeon’s belated guilty plea and determining that his
earlier actions spoke louder than those crucial words.
We also note that “[c]onduct resulting in an enhance-
ment under U.S.S.G. § 3C1.1 (Obstructing or Impeding
the Administration of Justice) ordinarily indicates that
the defendant has not accepted responsibility for his
criminal conduct.” U.S.S.G. § 3E1.1 cmt. n.4. “[A] defen-
dant whose sentence was properly enhanced for obstruc-
tion of justice is presumed not to have accepted responsi-
bility.” Gonzalez-Mendoza, 584 F.3d at 730-31. This pre-
sumption can be overcome when “exceptional circum-
stances are present,” id. at 731, but it is a rare occur-
rence. Here, then, DeLeon faced a situation in which it
would be doubly rare for him to be able to demonstrate
that he should receive the reduction: he went to trial and
contested his guilt, and he obstructed justice. DeLeon’s
subsequent admission of guilt was simply insufficient in
this case to satisfy the doubly heavy burden he needed
to carry. See United States v. Davis, 442 F.3d 1003, 1010
(7th Cir. 2006) (denying the reduction where defendant
“express[ed] her contrition, but only after pleading
guilty to the crime”); see also U.S.S.G. § 3E1.1 cmt. n.3 (ex-
plaining that a guilty plea “constitute[s] signifiant
evidence of acceptance of responsibility” but that evi-
dence “may be outweighed by conduct of the defendant
that is inconsistent with such acceptance of responsi-
bility”).
We are likewise unmoved by DeLeon’s appeal to the
application notes for U.S.S.G. § 3E1.1. DeLeon did not
No. 07-3941 23
voluntarily terminate or withdraw from criminal con-
duct in the sense the Guidelines seem to contemplate. See
U.S.S.G. § 3E1.1 cmt. n.1(b). The record indicates that
DeLeon had been working to turn his life around prior
to the offenses here; the district court explicitly took
into account his gainful employment, enrollment in
classes, and union membership at sentencing. Tr. 91,
Nov. 19, 2007. But nowhere does it indicate that after
getting wrapped up in the counterfeit-for-drugs scheme,
DeLeon had a change of heart and voluntarily removed
himself from the situation. To the contrary, the record
shows that DeLeon took a leadership role in the opera-
tion by recruiting an individual named Arebalo (who
separately pleaded guilty and received a 46-month sen-
tence) and proposed broadening the scope of the operation
by adding an armed robbery. See id. at 61, 84 & 90. Simi-
larly, the record supports a conclusion that DeLeon did not
manifest an acceptance of responsibility in a timely fash-
ion. See U.S.S.G. § 3E1.1 cmt. n.1(h). Even though he
admitted to counterfeiting throughout the proceedings,
he never formally accepted responsibility until after he
went to trial. See United States v. Samuels, 521 F.3d 804, 817
(7th Cir. 2008). The district court was justified in
weighing this factor against DeLeon.
The district court’s weighing of the first factor, truthful
admission of conduct and relevant conduct, see id. cmt.
n.1(a), is a closer question. Yet this factor is but one of
eight nonexclusive “appropriate considerations” for the
district court, id., and we are not well positioned to second
guess the district court’s assessment of DeLeon’s sincerity.
See Gilbertson, 435 F.3d at 799. We are not left with a
24 No. 07-3941
definite and firm conviction that the district court was
mistaken in denying the acceptance of responsibility
reduction, notwithstanding DeLeon’s professed accept-
ance of responsibility, so we affirm its denial of the reduc-
tion.
III. Conclusion
The district court properly applied the obstruction of
justice enhancement and did not err in denying the ac-
ceptance of responsibility reduction. DeLeon’s sentence
of 104 months is therefore A FFIRMED.
5-4-10