United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 22, 1998 Decided December 11, 1998
No. 97-3060
United States of America,
Appellee,
v.
Romulus Dozier,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 96cr00430-01)
Jason A. Levine argued the cause for appellant. With him
on the briefs was Bruce A. Baird.
Danny Onorato, Assistant U.S. Attorney, argued the cause
for appellee. With him on the briefs were Mary Lou Leary,
U.S. Attorney at the time the brief was filed, John R. Fisher,
Elizabeth Trosman, M. Evan Corcoran and Timothy J. Hea-
phy, Assistant U.S. Attorneys.
Before: Edwards, Chief Judge, Sentelle and Garland,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: A jury convicted Romulus Dozier
of two weapons charges and acquitted him of three drug-
related charges. Dozier challenges his sentence under the
United States Sentencing Guidelines, arguing that the district
court erred by: (1) increasing his offense level for obstruction
of justice, and (2) failing to explain why it denied a decrease
for acceptance of responsibility. For the reasons stated
below, we affirm the sentence.
I
Based on information provided by an informant, investiga-
tors from an anti-drug-trafficking task force stopped Dozier
and a passenger, Carl Shipp, while they were driving in the
District of Columbia. The agents found a semi-automatic
pistol loaded with fifteen rounds of ammunition hidden near
the car's steering wheel, as well as a bag containing $4,037 in
cash. Although the agents did not find drugs either on
Dozier's person or in the car, they did find 33.9 grams of
cocaine base in Shipp's pockets.
On November 14, 1996, a grand jury issued a five-count
indictment against Dozier, charging him with: (1) conspiracy
to distribute, and to possess with intent to distribute, five
grams or more of cocaine base, in violation of 21 U.S.C.
s 846; (2) unlawful possession with intent to distribute five
grams or more of cocaine base, in violation of 21 U.S.C.
ss 841(a)(1), (b)(1)(B)(iii); (3) using and carrying a firearm
during and in relation to a drug trafficking offense, in viola-
tion of 18 U.S.C. s 924(c)(1); (4) unlawful possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
s 922(g)(1); and (5) unlawful possession of ammunition by a
convicted felon, in violation of 18 U.S.C. s 922(g)(1). After
the district court denied Dozier's motions to suppress evi-
dence, Dozier twice offered to plead guilty to counts four and
five (the "weapons charges"), in exchange for the dismissal of
counts one through three (the "drug charges"). The govern-
ment rejected the plea offers and Dozier proceeded to trial in
February 1997.
At trial, Shipp testified that both the pistol and the drugs
belonged to Dozier. He said that when Dozier noticed the
police were following the car, Dozier handed Shipp two bags
of crack cocaine, saying: "Hold on to this because you cannot
get searched because you're the passenger of the car." Shipp
further testified that after their arrest, while both he and
Dozier were detained together in a cellblock, Dozier offered
to give him money or drugs to say the gun was his rather
than Dozier's: "He said that ... if I said the gun was mine,
that he would give me $5,000 or give me an eighth of a key"--
which, Shipp explained, referred to an eighth of a kilogram of
crack cocaine. Another witness testified that he had sold the
gun in question to Dozier. The jury convicted defendant on
the weapons charges but acquitted him on the drug charges.
Following the trial, the United States Probation Office
prepared a Presentence Investigation Report ("PSR") that
calculated defendant's sentencing range pursuant to the U.S.
Sentencing Commission Guidelines Manual (Nov. 1995). The
PSR determined that Dozier's base offense level was 20, and
that his prior convictions for gun and drug offenses generated
a criminal history category of V. This yielded a sentencing
range of 63-78 months of imprisonment. The PSR recom-
mended against a two-level decrease in the offense level (a
"downward adjustment") for acceptance of responsibility, pur-
suant to U.S.S.G. s 3E1.1. The PSR stated:
The defendant pleaded not guilty and exercised his right
to a jury trial. The defendant, through [h]is attorney,
said "the facts of the offense support the convictions."
Counsel noted that the defendant offered to plead guilty
to the firearm violations after the Suppression Motions
were denied, but the government rejected his offer.
The defendant explained that he bought the gun from a
friend "a few years ago." He added that he had forgot-
ten that he even had the gun, though he admitted that he
hid it because he knew possessing the gun was illegal.
Dozier said he only used the gun at a Forestville, Mary-
land firing range.
The PSR also recommended against a two-level increase in
the offense level (an "upward adjustment") for obstructing or
attempting to obstruct justice pursuant to U.S.S.G. s 3C1.1,
stating that the Probation Office had "no information at this
time" to suggest the defendant attempted to obstruct justice.
An addendum to the PSR noted that "the government ad-
vised us that it will provide additional information in its
sentencing memorandum" on the issue of obstruction, and
that if the court then concluded an adjustment were warrant-
ed, the total offense level would increase to 22. The result,
the addendum calculated, would be a sentencing range of 77-
96 months. Dozier filed a sentencing memorandum opposing
an offense-level increase for obstruction of justice, and argu-
ing in favor of a decrease for acceptance of responsibility
based on his attempts to negotiate a plea to the weapons
charges. The government filed a memorandum arguing in
favor of an increase for obstruction of justice, based on
Shipp's testimony that Dozier tried to bribe him to claim
ownership of the gun. It also opposed Dozier's requested
decrease for acceptance of responsibility.
At the sentencing hearing on May 13, 1997, Dozier's coun-
sel again opposed an increase for obstruction of justice,
arguing that Dozier's acquittal on the drug charges showed
that the jury did not find Shipp's testimony credible. The
district court, however, made the following finding: "I think
the government is right on that point.... [Dozier] offered to
pay Shipp several thousand dollars to tell the police that the
gun belonged to Shipp. If that is not obstruction of justice, I
don't know what is." In response to defense counsel's argu-
ment concerning Shipp's credibility, the court said: "I under-
stand you are saying ... the jury didn't believe Shipp on that
issue, but there is sufficient evidence here that that is what
happened."
Defense counsel also repeated his argument in favor of a
decrease for acceptance of responsibility. Although the court
did not respond directly, it concluded that with a two-level
increase for obstruction of justice, the resulting sentencing
range was 77-96 months. Both parties agree this indicated
that the court was denying Dozier's request for a decrease.
The court did not explain its reasons for denying the request,
and neither party objected to the lack of an explanation--
notwithstanding the court's closing query as to whether either
counsel had "anything else" prior to concluding the proceed-
ing. The court sentenced Dozier to 84 months in prison.
II
U.S. Sentencing Guideline s 3C1.1 requires a two-level
increase in a defendant's offense level if he willfully obstruct-
ed or attempted to obstruct justice during the investigation or
prosecution of the offense for which he was convicted. The
commentary to the Guideline provides examples of the type of
conduct to which it applies, including "unlawfully influencing
a codefendant [or] witness" and "suborning, or attempting to
suborn perjury." U.S.S.G. s 3C1.1, comment. (n.3(a), (b)).
Dozier challenges the district court's imposition of the in-
crease on three grounds. First, he contends that a finding of
obstruction of justice must be supported by "clear and con-
vincing evidence," not merely by a preponderance of the
evidence. Second, he asserts that the district court erred in
not making specific factual findings indicating why he found
Shipp's testimony credible. Finally, Dozier suggests that the
evidence was insufficient to support the factual finding of
obstruction. Because the jury acquitted him on the drug
charges, Dozier contends it must have found Shipp's testimo-
ny on that issue noncredible, and that therefore the court
should not have based an increase on Shipp's testimony that
Dozier tried to bribe him to lie about the gun.
We review Dozier's challenges to his sentence according to
the "trichotomy" established by Congress in 18 U.S.C.
s 3742(e). "[P]urely legal questions are reviewed de novo;
factual findings are to be affirmed unless 'clearly erroneous';
and we are to give 'due deference' to the district court's
application of the guidelines to facts." United States v. Kim,
23 F.3d 513, 517 (D.C. Cir. 1994). Dozier's contentions that
obstruction must be established by clear and convincing
evidence, and that increases for obstruction must be accompa-
nied by specific findings, are purely legal questions; we
therefore review them de novo. We review the court's factual
finding that Dozier attempted to obstruct justice under the
clearly erroneous standard. There is no dispute about the
application of the Guidelines to the facts in this case; Dozier
does not disagree that an attempt to buy false testimony
would constitute obstruction of justice.
We begin with Dozier's contention that obstruction must be
established by clear and convincing evidence. As defendant
concedes, the government's usual burden is to prove facts in
support of an upward adjustment by a preponderance of the
evidence. See United States v. Washington, 115 F.3d 1008,
1010 (D.C. Cir. 1997); United States v. Burke, 888 F.2d 862,
869 (D.C. Cir. 1989). Relying on our decision in United
States v. Montague, 40 F.3d 1251 (D.C. Cir. 1994), however,
Dozier contends that adjustments based on obstruction of
justice are subject to the higher standard of proof by clear
and convincing evidence.
But Montague did not require clear and convincing evi-
dence for all adjustments based on obstruction of justice. In
Montague, we held only "that the clear-and-convincing stan-
dard is the appropriate standard by which to evaluate defen-
dant testimony for section 3C1.1 perjury enhancements." 40
F.3d at 1254 (emphasis added); see also United States v.
Gaviria, 116 F.3d 1498, 1518 (D.C. Cir. 1997). Montague was
based on our reading of then-effective commentary to
s 3C1.1, which stated:
This provision is not intended to punish a defendant for
the exercise of a constitutional right. A defendant's
denial of guilt (other than a denial of guilt under oath
that constitutes perjury) ... is not a basis for application
of this provision. In applying this provision in respect to
alleged false testimony or statements by the defendant,
such testimony or statements should be evaluated in a
light most favorable to the defendant.
40 F.3d at 1253 (quoting U.S.S.G. s 3C1.1, comment. (n.1)
(1994)) (emphasis added). Montague read the commentary's
admonition, that "such testimony or statements should be
evaluated in a light most favorable to the defendant," as
requiring a standard higher than the usual preponderance
standard. Id.1 We noted that this requirement may have
reflected the Commission's concern that "in the absence of a
heightened standard of proof on perjury, defendants might be
leery about testifying in their own defense lest they face a
charge of perjury whenever convicted." Id. at 1254. We
made clear, however, that the commentary "singles out defen-
dant testimony; it directs courts to use this standard only 'in
respect to alleged false testimony or statements by the defen-
dant.' " Id. (quoting s 3C1.1, comment. (n.1)).
The obstructive conduct at issue here is of a different kind
than that in Montague. Dozier is alleged to have suborned
the perjury of another, not to have committed perjury him-
self. Hence, neither Montague's holding, nor its concern
about inhibiting the exercise of a defendant's right to testify
in his own defense, applies. Accord United States v. Garcia,
135 F.3d 667, 670 (9th Cir. 1998) ("Assuming without deciding
that Application Note 1 mandates a standard greater than a
preponderance of evidence for a sentence enhancement for a
defendant's own false testimony, it does not apply ... [where]
he suborned the perjured testimony of a witness...."). We
therefore reject defendant's first challenge to the district
court's decision to increase his offense level for obstruction of
justice.
Dozier's second contention is that the district court was
required, but failed, to make specific factual findings justify-
ing the conclusion that he obstructed justice. In support,
__________
1 Effective November 1, 1997, the Sentencing Commission deleted
the above-quoted phrase from the commentary to s 3C1.1. The
Commission made the deletion so that the Application Note "no
longer suggests the use of a heightened standard of proof."
U.S.S.G. App. C, amend. 566 (Nov. 1997) (citing conflict between
Montague and the Sixth Circuit's contrary view in United States v.
Zajac, 62 F.3d 145 (6th Cir. 1995)).
Dozier again cites our decision in Montague, this time for the
proposition that a district court's "finding of perjury under
section 3C1.1" must be based on "separate and clear" find-
ings. 40 F.3d at 1255-56. But that holding, too, was limited
to a finding of perjury by "a testifying defendant," id. at 1255,
and went "hand-in-hand with [the] higher standard of proof"
required for such an adjustment. Id. at 1256. Neither the
holding nor the considerations on which it was based extend
to the defendant's subornation of perjury by another person.2
It is true that the Sentencing Reform Act of 1984, 18
U.S.C. s 3553(c), requires that "the court, at the time of
sentencing, shall state in open court the reasons for its
imposition of the particular sentence."3 But that requirement
was met here. The district court stated that Dozier's sen-
tence was founded upon his base offense level, increased by
two levels for obstruction of justice. The court further
indicated that it made the two-level increase because Dozier
"offered to pay Shipp several thousand dollars to tell the
police that the gun belonged to Shipp," and that "[i]f that is
not obstruction of justice, I don't know what is." While the
__________
2 In Montague, we noted the Supreme Court's decision in United
States v. Dunnigan, which held that "if a defendant objects to a
sentence enhancement resulting from her trial testimony, a district
court must review the evidence and make independent findings
necessary to establish a willful impediment to or obstruction of
justice ... under the perjury definition...." 507 U.S. 87, 95
(1993); see Montague, 40 F.3d at 1255. Consistent with our view
here, we recognized that this holding was based on "the Court's
reasoning, that there may be instances in which a testifying defen-
dant is found guilty but did not commit perjury." Montague, 40
F.3d at 1255 (emphasis added).
3 Greater specificity is required for certain kinds of sentences not
at issue here. Subsection 3553(c)(1) requires an additional state-
ment of "the reason for imposing a sentence at a particular point
within the range," where the applicable sentencing range, and not
just the sentence itself, exceeds 24 months. See United States v.
Zine, 906 F.2d 776, 778-79 (D.C. Cir. 1990). Subsection 3553(c)(2)
requires the court to state its "specific reason" where it imposes a
sentence outside the range described by the Guidelines.
court acknowledged defendant's contention that it should not
credit Shipp's testimony, the court concluded that "there is
sufficient evidence here that that is what happened." Al-
though it did not go further and explain why it believed
Shipp, as defendant contends is required, there is little mys-
tery on that point: the court heard Shipp testify first-hand
and hence was able to judge his credibility directly.4
Dozier's final contention is that the evidence was insuffi-
cient to justify a finding of obstruction under any standard of
proof. Dozier contends that the court erred in crediting
Shipp's testimony regarding the attempted obstruction, since
the jury's acquittal of Dozier on the drug charges assertedly
demonstrated that it "rejected" Shipp's testimony that Dozier
handed him the drugs, and thus indicated that the jury did
not believe Shipp at all. The court, Dozier suggests, should
have drawn the same conclusion.
This argument is wrong for three reasons. First, as the
Supreme Court noted in United States v. Watts, 117 S. Ct.
633, 637 (1997), "it is impossible to know exactly why a jury
found a defendant not guilty on a certain charge.... [T]he
jury cannot be said to have 'necessarily rejected' any facts
when it returns a general verdict of not guilty." Second, a
jury may accept some parts of a witness' testimony and reject
others, see Parker v. United States, 801 F.2d 1382, 1385-86
(D.C. Cir. 1986); even if the jury disbelieved Shipp with
respect to ownership of the drugs, it may have believed him
with respect to the attempted subornation. Third, even if the
jury did not believe that Shipp's testimony established subor-
nation beyond a reasonable doubt (an issue never put to it,
since subornation was not one of the charges), " 'an acquittal
in a criminal case does not preclude the Government from
relitigating an issue when it is presented in a subsequent
action governed by a lower standard of proof.' " Watts, 117
__________
4 Even if the court had been required to make more specific
findings, Dozier failed to seek such findings or object to their
absence below. As we note in Part III, that failure would subject
this challenge to review for plain error, a standard Dozier cannot
meet.
S. Ct. at 637 (quoting Dowling v. United States, 493 U.S. 342,
349 (1990)). Accordingly, "a jury's verdict of acquittal does
not prevent the sentencing court from considering conduct
underlying the acquitted charge, so long as that conduct has
been proved by a preponderance of the evidence." Watts, 117
S. Ct. at 638; see United States v. Thomas, 114 F.3d 228, 261
(D.C. Cir. 1997).
Here, the district court found the evidence "still sufficient"
to establish the attempted obstruction, notwithstanding the
jury's acquittal on the drug charges. That finding was
plainly based on the court's first-hand appraisal of Shipp's
credibility. As we are charged to "give due regard to the
opportunity of the district court to judge the credibility of the
witnesses, and [to] accept the findings of fact of the district
court unless they are clearly erroneous," 18 U.S.C. s 3742(e),
we accept the court's finding and affirm the two-level increase
for obstruction of justice.
III
The Sentencing Guidelines provide for a two-level decrease
in a defendant's offense level if he "clearly demonstrates
acceptance of responsibility for his offense." U.S.S.G.
s 3E1.1(a). Dozier contends that the district court erred by
failing to explain why it denied him the two-level adjustment.
Dozier, however, did not object to this failure below--at a
time when the trial judge could have remedied it by explain-
ing his rationale. For that reason, even if the failure to
explain were error, we would be able to correct it only if it
were "plain error." Fed. R. Crim. P. 52(b); see United
States v. Olano, 507 U.S. 725, 731-32 (1993).
Although the plain error standard has a number of require-
ments, see Olano, 507 U.S. at 732-36, most important for this
case is that it puts the burden on the defendant to establish
prejudice. See id. at 734; United States v. Forte, 81 F.3d
215, 217 (D.C. Cir. 1996). This means that Dozier must
demonstrate a "reasonable likelihood" that "the court would
have reached a different result" had it not made the error
asserted. Forte, 81 F.3d at 219-20; see also United States v.
Saro, 24 F.3d 283, 288 (D.C. Cir. 1994). And since the error
asserted here is the court's failure to explain its decision, the
defendant must show a reasonable likelihood that the court
would have granted his requested decrease if it had ad-
dressed the issue directly and explained its reasoning. Cf.
United States v. Childress, 58 F.3d 693, 724 (D.C. Cir. 1995)
(holding that where the error is a failure to make requisite
findings, plain error requires a showing that it is "reasonably
likely the district court would have assigned [defendant] a ...
lower base offense level if it had made the requisite find-
ings"). Dozier faces three hurdles to meeting that require-
ment, which on the facts of this case are insuperable.5
First, the commentary to the Guideline states that the
adjustment for acceptance of responsibility "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," except in "rare situations" such as "where a defendant
goes to trial to assert and preserve issues that do not relate
to factual guilt." U.S.S.G. s 3E1.1, comment. (n.2); see
United States v. Jones, 997 F.2d 1475, 1478 (D.C. Cir. 1993)
(en banc) ("The Guidelines explicitly tell judges that they
normally should deny the two-point reduction to a defendant
who does not plead guilty."). Here, Dozier went to trial and
__________
5 As noted, defendant's argument is that the court erred in failing
to explain its reasons for denying the decrease; he does not directly
allege that the denial itself was error. Were he to make such an
argument, we would review it on a harmless, rather than plain error
standard, because defendant did seek a decrease at the sentencing
hearing and did object to the PSR's recommendation against one.
See Fed. R. Crim. P. 52(a); cf. United States v. Patel, 131 F.3d
1195, 1201 (7th Cir.1997) (holding that defendant who consistently
disputed Guidelines issue did not waive right to appeal by failing to
object again after court issued findings). But for essentially the
same reasons that we conclude defendant was not prejudiced by the
court's failure to explain its reasoning, we would also conclude that
the court did not err in refusing to grant the requested decrease in
the first place. At bottom, because defendant never "clearly dem-
onstrate[d] acceptance of responsibility for his offense," he cannot
satisfy the essential prerequisite for the decrease. U.S.S.G.
s 3E1.1(a).
his counsel contested "the essential factual elements of guilt,"
both on the charges for which he was acquitted (the drug
charges) and on those for which he was convicted (the weap-
ons charges). He did not do so to "preserve issues that do
not relate to factual guilt," such as "making a constitutional
challenge ... to the applicability of a statute to his conduct."
U.S.S.G. s 3E1.1, comment. (n.2). This further sharpens the
nature of defendant's burden in establishing plain error: He
must demonstrate that it is " 'reasonably likely' that [his] case
is one of the 'rare situations' in which a defendant who
proceeds through trial is entitled to a reduction for accep-
tance of responsibility." United States v. Mitchell, 49 F.3d
769, 784 (D.C. Cir. 1995).
Defendant contends that his is one of those rare situations
because he twice offered to plead guilty to the only charges
on which the jury convicted him. The government "forced"
him "to submit all charges to a trial by jury," Dozier con-
tends, because it refused to accept a plea on the weapons
charges unless he also agreed to plead guilty to the drug
charges. Moreover, to deny him a decrease, Dozier argues,
would be to transgress the Guidelines' instruction that "a
defendant is not required to volunteer, or affirmatively admit,
relevant conduct beyond the offense of conviction in order to
obtain a reduction." U.S.S.G. s 3E1.1, comment. (n.1); see
United States v. Fields, 39 F.3d 439, 446 (3d Cir. 1994)
(remanding where it appeared district court may have consid-
ered defendant's refusal to admit conduct not part of the
offense of conviction).
But while the government's refusal to accept his plea offer
may have precluded a negotiated resolution of the case, it
neither forced Dozier to contest his guilt on the weapons
charges nor forced his attorney to suggest in closing argu-
ment that the witnesses who said the gun was his were not
telling the truth. Tr. at 50-56 (Feb. 26, 1997). Nor would
denying Dozier a decrease effectively punish him for refusing
to admit conduct beyond the weapons charges of which he
was convicted. Nothing prevented Dozier from going to trial
to contest his guilt on the drug charges, while admitting his
ownership of the gun and ammunition. Had he done so, he
would not now be ineligible for the downward adjustment he
seeks.
Dozier, however, contends that this was not a real option.
He had to contest his factual guilt on the weapons charges, he
asserts, because failure to do so would have prejudiced his
defense to the drug charges. But that was not necessarily so.
To the contrary, Dozier might have improved his credibility
with the jury by admitting the crimes of which he was guilty
and contesting only those of which he claims innocence. Our
point is not to second-guess Dozier's strategy, but only to
note that it was a strategy--a calculation that contesting all
the charges would so increase the probability of an across-
the-board acquittal as to outweigh the risk of losing a down-
ward adjustment in the event of a conviction. But the
Guidelines affect many strategic decisions defendants must
make, and that impact is not itself enough to move a case into
the "rare" class contemplated by s 3E1.1. As the Supreme
Court said, in rejecting the contention that the Guidelines'
sentencing enhancement for perjury distorts a defendant's
decision whether to testify, "[o]ur authorities do not impose a
categorical ban on every governmental action affecting the
strategic decisions of an accused." United States v. Dunni-
gan, 507 U.S. 87, 96 (1993). The fact that Dozier's defense to
the drug charges might have been weakened by a truthful
admission to the weapons charges is not one of those rare
circumstances that would mitigate his decision to contest the
latter.
Even if Dozier had conceded his guilt on the weapons
charges, he would still face a second hurdle. Where, as here,
a district court has properly imposed an adjustment for
obstruction of justice, the Guidelines state that an adjust-
ment for acceptance of responsibility "ordinarily" is not avail-
able. U.S.S.G. s 3E1.1, comment. (n.4); see Gaviria, 116
F.3d at 1521 ("[I]n almost all cases, a defendant who denies
guilt and goes to trial, or who receives an obstruction of
justice increase under s 3C1.1, is not eligible for a downward
adjustment for acceptance of responsibility."). While the
commentary to the Guidelines recognizes that there may "be
extraordinary cases in which adjustments under both
ss 3C1.1 and 3E1.1 may apply," U.S.S.G. s 3E1.1, comment.
(n.4), Dozier has not demonstrated that his is one of those
cases. See United States v. Smaw, 993 F.2d 902, 905 n.2
(D.C. Cir. 1993); see also United States v. Gonzales, 12 F.3d
298, 300 (1st Cir. 1993) ("A defendant must carry the burden
of proving that his case is extraordinary and, thus, that it
comes within the narrow confines of the exception.").
Dozier does not point to anything "extraordinary" about his
case, other than to repeat that he twice unsuccessfully at-
tempted to plead guilty. But those attempts cannot do
double duty. At most, they might establish that his situation
is sufficiently "rare" to overcome the fact that he chose to go
to trial--an argument we rejected above. But even if we had
accepted it, Dozier would be no better off than if he had pled
guilty. To overcome the fact that he attempted to obstruct
justice, he still must show that his case is "extraordinary" in
some other way. He has not suggested anything that would
put it in that category.
Finally, even if Dozier had cleared the above two hurdles,
his quest for an adjustment for acceptance of responsibility
would falter because he cannot establish s 3E1.1(a)'s core
prerequisite: An adjustment is available only "[i]f the defen-
dant clearly demonstrates acceptance of responsibility for his
offense." U.S.S.G. s 3E1.1(a) (emphasis added); see United
States v. Reid, 997 F.2d 1576, 1580 (D.C. Cir. 1993). Even if
the government did "force" Dozier to go to trial, it did not
prevent him from clearly expressing contrition after his con-
viction. Yet, defendant never did.
Dozier did say, "[t]hrough his attorney," that " 'the facts of
the offense support the convictions.' " PSR p 15. But that
sounds more like an expression of nolo contendere than of
contrition. It is not enough to demonstrate acceptance of
responsibility. See United States v. Thomas, 97 F.3d 1499,
1501 (D.C. Cir. 1996) ("There is a difference between admit-
ting the acts and accepting responsibility for the crimes.");
United States v. Cutchin, 956 F.2d 1216, 1219 (D.C. Cir.
1992).
Equally deficient was Dozier's direct statement to the
author of the PSR:
The defendant explained that he bought the gun from a
friend "a few years ago." He added that he had forgot-
ten that he even had the gun, though he admitted that he
hid it because he knew possessing the gun was illegal.
PSR p 16. This statement is hardly "clear," let alone an
acceptance of responsibility. We read it as suggesting that
defendant lacked a requisite element of the offense--intent--
because he had forgotten that he had the gun. See United
States v. Kirkland, 104 F.3d 1403, 1405 (D.C. Cir. 1997)
(noting "that a defendant's challenge to the requisite intent is
just another form of disputing culpability" and is inconsistent
with acceptance of responsibility). Defendant's appellate
counsel contended at oral argument that there was another
possible reading--that Dozier's use of the past perfect tense,
"had forgotten," meant the statement could be read as indi-
cating defendant had forgotten about the gun at some earlier
time but had remembered it by the day of his arrest. But
even counsel conceded he was "not certain" which time period
Dozier was referring to when he said he "had" forgotten the
gun. That is simply insufficient to satisfy the requirement of
s 3E1.1. To qualify for an adjustment, a defendant must
"clearly" accept responsibility for his crime; it is not enough
that he arguably do so. See Reid, 997 F.2d at 1580; United
States v. McLean, 951 F.2d 1300, 1302 (D.C. Cir. 1991).
The district court gave Dozier a final opportunity to make a
statement at the sentencing hearing. That was Dozier's
chance to clarify what he had said to the Probation Office,
and to express any contrition he may have felt. See McLean,
951 F.2d at 1302. But Dozier declined to say anything. Tr.
at 4 (May 13, 1997). While the district court lacks the power
to force a defendant to express remorse he does not feel, it is
not required to reward a remorseless defendant with a de-
crease in his offense level. Because Dozier did not "clearly
demonstrate acceptance of responsibility for his offense," he
cannot establish that the court plainly erred in failing to
explain its denial of an adjustment.
Defendant draws our attention to a number of cases in
which reviewing courts vacated and remanded sentencing
determinations because trial courts failed to explain their
reasoning adequately. In those and other cases, however,
either there was a reasonable likelihood that the trial court
had based its decision on an impermissible factor (a possibili-
ty that could not be resolved without obtaining a fuller
statement of the court's reasons),6 or the reviewing court was
unable to discern a reason for the determination from the
existing record.7 We have neither problem here. To the
contrary, the underlying reasons for denying Dozier an ad-
justment for acceptance of responsibility are both permissible
and readily discernible.
IV
The sentence imposed by the district court is
Affirmed.
__________
6 See, e.g., United States v. Amato, 46 F.3d 1255, 1263 (2d Cir.
1995) ("It also appears likely that the enhancement was based on
information which [defendant] was entitled, under his [cooperation]
agreement, to have excluded from consideration."); United States v.
Hicks, 978 F.2d 722, 726 (D.C. Cir. 1993) (remanding because of
ambiguous reasoning by district court and possibility that court's
decision implicated a constitutional issue); United States v. Charg-
er, 928 F.2d 818, 820, 823 (8th Cir. 1991) (remanding because of
ambiguous and conflicting statements by trial court); United States
v. Carlisle, 907 F.2d 94, 96 n.3 (9th Cir. 1990) (noting that remand
would obviate need to decide whether presentence report had
"forced [defendant] to implicate himself in other crimes in violation
of the Fifth Amendment"); see also Saro, 24 F.3d at 288-89
("Without more, this lack of explicitness would not constitute plain
error, but there are substantial signs that [defendant's] pre-
sentence report was actively employing the wrong legal standard.").
7 See, e.g., United States v. Barry, 938 F.2d 1327, 1337 (D.C. Cir.
1991) (reviewing court was unable to discern, and district court did
not explain, how perjury in earlier investigation obstructed investi-
gation of offense for which defendant was convicted); United States
v. Anderson, 886 F.2d 215, 216-17 (8th Cir. 1989) (remanding
because district court failed to resolve factual dispute necessary to
determine whether adjustment was appropriate).