F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 11 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 00-1421
v. (D. Colorado)
ROBERT HANEY, (D.C. No. 98-CR-224-D)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HENRY, Circuit Judge, BRORBY , Senior Circuit Judge, and ROGERS ,
Senior District Judge. **
This appeal comes to us on remand from the en banc court. See United
States v. Haney, 318 F.3d 1161 (10th Cir. 2003) (en banc). Robert Haney was
convicted after a jury trial of possession of escape paraphernalia in prison (in
violation of 18 U.S.C. § 1791(a)(2)), and he appealed his conviction and sentence
to this court. In a prior opinion, this panel vacated his conviction on the grounds
*
This order and judgment is not binding precedent, except under the
doctrines of res judicata, collateral estoppel, and law of the case. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10 TH C IR . R. 36.3.
**
The Honorable Richard D. Rogers, United States Senior District Judge for
the District of Kansas, sitting by designation.
that the district court had erred in failing to instruct the jury on Mr. Haney’s
duress defense. See United States v. Haney, 287 F.3d 1266 (10th Cir. 2002).
However, the en banc court concluded that Mr. Haney had not raised the duress
defense as to the escape paraphernalia charge and that failure to so instruct the
jury did not constitute plain error. See Haney, 318 F.3d at 1166-67. The en banc
court therefore affirmed Mr. Haney’s conviction and remanded the case to this
panel for disposition of a sentencing issue—whether the district court erred in
failing to grant him a reduction in offense level for acceptance of responsibility,
pursuant to § 3E1.1 of the United States Sentencing Guidelines. 1
Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a), we conclude that the district court did not err in applying USSG § 3E1.1.
We therefore affirm Mr. Haney’s sentence.
I. BACKGROUND
Because the underlying facts are set forth in the prior panel opinion, see
Haney, 287 F.3d at 1267-69, we need not summarize them here. In addition to the
facts set forth there, we note that at sentencing, Mr. Haney sought an acceptance-
of-responsibility reduction pursuant to USSG § 3E1.1. The district court denied
1
Because this panel had vacated Mr. Haney’s conviction, we did not reach
the sentencing issue in our initial opinion.
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Mr. Haney the adjustment, referring to its denial of the same adjustment requested
by Mr. Haney’s co-defendant, Mr. Francis. The court stated that “[i]f the Court is
unwilling to grant acceptance of responsibility for [Mr.] Francis, then I don’t
think I can do it for [Mr.] Haney, particularly since there really wasn’t a duress
defense or any defense that the Court allowed the jury to consider as to [Mr.]
Haney.” Rec., no. 00-1429, (United States v. Francis), vol XIX, at 23 (Tr. of Oct.
11, 2000 Sentencing Hr’g).
II. DISCUSSION
Mr. Haney argues that the district court misapplied United States
Sentencing Guideline § 3E1.1(a), which provides for a two-level decrease in
offense level where the defendant “clearly demonstrates acceptance of
responsibility.” Mr. Haney maintains that the district court: (1) failed to realize
that it maintained discretion to grant a § 3E1.1(a) reduction even though he had
declined to plead guilty to the charge of possession of escape paraphernalia; and
(2) erred in concluding that the circumstances of Mr. Haney’s case did not
warrant the two-level increase under § 3E1.1
Mr. Haney’s first argument challenges the district court’s legal
interpretation of the Guidelines, and we therefore engage in de novo review. See
United States v. Holbert, 285 F.3d 1257, 1259 (10th Cir. 2002). However, as to
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his second argument, “[d]etermination of acceptance of responsibility is a
question of fact reviewed under a clearly erroneous standard.” United States v.
Saffo, 227 F.3d 1260, 1271 (10th Cir. 2000) (internal quotation marks omitted).
Moreover, “[t]he sentencing judge is in a unique position to evaluate a
defendant’s acceptance of responsibility, [and] [f]or this reason the determination
of the sentencing judge is entitled to great deference on review.” USSG § 3E1.1,
cmt. n.5.
Section 3E1.1(a) directs the sentencing court to “decrease the offense level
by two levels” if “the defendant clearly demonstrates acceptance of responsibility
for his offense.” Application Note 2 to § 3E1.1 explains:
This adjustment is not intended to apply to a defendant
who puts the government to its burden of proof at trial by
denying the essential factual elements of guilt, is
convicted, and only then admits guilt and expresses
remorse. Conviction by trial, however, does not
automatically preclude a defendant from consideration for
such a reduction. In rare situations a defendant may
clearly demonstrate an acceptance of responsibility for his
criminal conduct even though he exercises his
constitutional right to a trial. This may occur, for
example, where a defendant goes to trial to assert and
preserve issues that do not relate to factual guilt (e.g. to
make a constitutional challenge to a statute or a challenge
to the applicability of a statute to his conduct). In each
such instance, however, a determination that a defendant
has accepted responsibility will be based primarily upon
pre-trial statements and conduct.
USSG § 3E1.1 cmt. n.2.
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Here, Mr. Haney did put the government to its burden of proof by declining
to plead guilty and proceeding to trial. However, as the Guideline Commentary
makes clear, Mr. Haney remained eligible, at the discretion of the district court,
for the § 3E1.1(a) reduction.
We conclude that the record adequately demonstrates the district court’s
awareness of this discretion. At the sentencing hearing, Mr. Haney’s counsel read
from the Commentary to § 3E1.1(a): “‘Conviction by trial . . . does not
automatically preclude a defendant from consideration for such a reduction.’”
Rec., no. 00-1429, vol. XIX, at 19 (quoting U.S.S.G. § 3E1.1 cmt. n.2). The court
clearly understood, itself reiterating: “‘In rare situations, a defendant may clearly
demonstrate acceptance of responsibility for his criminal conduct even though he
exercises his constitutional right to a trial.’” Id. at 22. The court specifically
noted: “[T]his application [note, USSG. § 3E1.1 cmt. n.2] doesn’t limit the
availability of acceptance of responsibility to only someone who’s challenging the
constitutionality [of the statute charged].” Id. at 14-15. The district court
proceeded to question counsel regarding application of the reduction, particularly
inquiring as to pretrial statements and conduct. See, e.g., id. at 15-22. The
district court concluded: “So I believe on this record that allowing acceptance of
responsibility would be inconsistent with the spirit, purpose and intent of Section
3E1.1.” Id. at 23-24. Accordingly, the record provides ample evidence that the
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district court understood its discretion to grant the acceptance of responsibility
adjustment if the circumstances warranted it.
As to the district court’s factual finding that the downward adjustment was
not warranted, Mr. Haney argues that he accepted responsibility by admitting to
the collection of escape paraphernalia charge during his trial testimony. Although
Mr. Haney’s admission at trial is a factor that the district court could consider, we
discern no clear error in the district court’s conclusion that the downward
adjustment was still not warranted. As noted above, in these circumstances “[a]
determination that a defendant has accepted responsibility will be based primarily
on pre-trial statements and conduct.” USSG § 3E1.1 cmt.n.2. Mr. Haney points
to no such pretrial statements and conduct evincing an acceptance of
responsibility. See Rec. vol. XIX, at 20 (prosecutor’s statement at sentencing
noting the lack of acceptance of responsibility prior to trial). The record thus
indicates that the district court weighed the appropriate factors and concluded in
the proper exercise of the its discretion that Mr. Haney was not entitled to the
acceptance of responsibility reduction. Cf. United States v. Garcia, 182 F.3d
1165, 1173 (10th Cir. 1999) (stating that the fact that raising an entrapment
defense does not preclude application of the acceptance of responsibility
adjustment “does not mean that the simple assertion of the entrapment defense
coupled with acknowledgment of the underlying criminal activity automatically
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entitles a defendant to a two-point acceptance of responsibility reduction”);
United States v. Ivy, 83 F.3d 1266, 1294 (10th Cir. 1996) (“[B]oth U.S.S.G. §
3E1.1(a) and application note 2, make it clear a defendant is entitled to a
reduction in offense level for acceptance of responsibility only if he clearly
demonstrates acceptance of responsibility for his offense. It is disingenuous to
maintain that an individual clearly demonstrates acceptance of responsibility by
simply declining to controvert the government’s evidence at trial. Instead, this
language contemplates that the defendant will perform some affirmative act,
rather than standing idly by while the government proves its case.”) (internal
quotation marks omitted); United States v. Portillo-Valenzuela, 20 F.3d 393,
394-95 (10th Cir. 1994) (“Pleading not guilty and requiring the government to
prove guilt at trial demonstrate denial of responsibility, regardless of how easily
the government can prove guilt.”).
CONCLUSION
For the reasons set forth above, we AFFIRM Mr. Haney’s sentence.
Entered for the Court,
Robert H. Henry
Circuit Judge
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