In re: Sealed Case

Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 2003 Decided December 5, 2003

No. 02–3081

IN RE: SEALED CASE

Appeal from the United States District Court
for the District of Columbia
(No. 94cr00193–03)

Thomas G. Corcoran, Jr. argued the cause for the appel-
lant. Mary-Ellen Noone was on brief.
Suzanne Grealy Curt, Assistant United States Attorney,
argued the cause for the appellee. Roscoe C. Howard, Jr,
United States Attorney, and John R. Fisher, Thomas J.
Tourish, Jr and Martin D. Carpenter, Assistant United
States Attorneys, were on brief.
Before: GINSBURG, Chief Judge, and SENTELLE and
HENDERSON, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: After he was
convicted by a jury of conspiracy to distribute cocaine and of

Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
 2

unlawfully possessing with intent to distribute cocaine, the
appellant was sentenced to 210 months’ imprisonment pursu-
ant to the UNITED STATES SENTENCING COMMISSION GUIDELINES
MANUAL (Nov. 2001) (Guidelines) based on an offense level of
32 and a criminal history category of VI. He challenges his
sentence on appeal, alleging that the district court erred by
refusing to grant him a two-level downward adjustment for
acceptance of responsibility under Guideline § 3E1.1(a) and
by denying him an additional one-level reduction under
Guideline § 3E1.1(b)(1) for providing the government with
timely and complete information about his involvement in the
offenses. Having considered the multiple arguments the
appellant advances in support of his claims, we reject them.

I. BACKGROUND
The appellant participated in a conspiracy to transport via
overnight courier nearly 15 pounds of cocaine from Los
Angeles to two addresses in the Washington, D.C. metropoli-
tan area: one on Hartford Street in the District, the other on
Featherwood Drive in Silver Spring, Maryland. While the
appellant was the intended recipient of the package shipped
to the Hartford Street address, which contained approximate-
ly 3.9 kilograms of cocaine, a co-conspirator was supposed to
receive the package shipped to the Featherwood Drive ad-
dress, which contained approximately 2.9 kilograms of co-
caine. The Drug Enforcement Administration (DEA) inter-
cepted both packages en route after the courier notified it
that the packages appeared to contain narcotics. A DEA
agent, posing as the courier’s delivery person, ultimately
delivered the Hartford Street package to the appellant.
The appellant was indicted by a grand jury on one count of
conspiracy to distribute five kilograms or more of cocaine, in
violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(ii), and one
count of unlawfully possessing with intent to distribute five
kilograms or more of cocaine, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(A)(ii). The two counts of the indict-
ment were based on the total amount of cocaine (approxi-
mately 6.8 kilograms) contained in both the Hartford Street
 3

and Featherwood Drive packages. Seeking a plea agreement
with the government, the appellant testified about his involve-
ment in the conspiracy before a grand jury. He later aban-
doned his effort to obtain a plea bargain and chose to proceed
to trial instead. On November 9, 1994, the jury convicted
him on both counts. Based on the total amount of cocaine
involved in the conspiracy, a criminal history category of VI
and an offense level of 37, the district court sentenced the
appellant on March 11, 1996 to 360 months’ imprisonment.
The appellant thereafter appealed his sentence; we vacated
the sentence because the record was inadequate to support
attributing both packages of cocaine to him and remanded to
the district court for re-sentencing based on further findings
as to the quantity of drugs for which the appellant was
responsible. In re Sealed Case, 108 F.3d 372, 374 (D.C. Cir.
1997). Finding that the evidence adduced at trial adequately
demonstrated the appellant’s knowledge of the Featherwood
Drive shipment and his active participation in the overall
conspiracy, the district court reinstated its original sentence.
Although the appellant appealed his sentence again, he and
the government later filed a consent motion seeking to re-
mand for re-sentencing without regard to the Featherwood
Drive package and for consideration of relief, if any, flowing
from the decision of the Supreme Court in Apprendi v. New
Jersey, 530 U.S. 466 (2000),1 or otherwise warranted. We
granted the consent motion on September 21, 2000.
The United States Probation Office (Probation Office) is-
sued a new Pre–Sentence Investigation Report (PIR) in
preparation for the appellant’s second re-sentencing. The
PIR found that the appellant was not eligible for an accep-
tance of responsibility adjustment because he ‘‘did not admit
his involvement in the instant offenses.’’ Record Material for
Appellant (Appellant’s Rec.), Tab 12 at 9. The Probation
Office eventually issued another memorandum in response to
1 In Apprendi, the Supreme Court held that ‘‘[o]ther than the
fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.’’ 530 U.S. at 490.
 4

the district court’s request that it re-interview the appellant
regarding his acceptance of responsibility. The memorandum
explained that during the interview the appellant ‘‘described
in length his involvement with the Hartford Street shipment’’
but did not accept responsibility for the shipment to the
Featherwood Drive address. Appellant’s Rec., 14 at 2. In
aid of sentencing, the district court subsequently held an
evidentiary hearing on November 19, 2001.
On November 26, 2001, the district court denied the appel-
lant’s request for a downward adjustment to his offense level
under Guideline § 3E1.1(a) because it concluded that he had
not clearly demonstrated acceptance of responsibility for his
offenses. The court found that the appellant originally
claimed that he believed the drugs to be dishes and that he
did not accept responsibility for the role he played in the drug
conspiracy until after he became aware that it was relevant to
his sentencing. The court also found that prior to the
November 19, 2001 hearing the only evidence the appellant
offered of his acceptance of responsibility was his grand jury
testimony, which he repudiated by ‘‘voiding’’ his plea agree-
ment, and his counsel’s assertion that ‘‘counsel is hopeful that
at sentencing [the appellant] will accept responsibility for the
Hartford Street delivery.’’ Appellant’s Rec., Tab 21 at 9.
The court concluded that the appellant’s acceptance of re-
sponsibility came too late to obtain the two-level adjustment.
The appellant then moved for reconsideration. On July 16,
2002, the district court denied the appellant’s motion, finding
that the appellant’s decision to proceed to trial was inconsis-
tent with the clear acceptance of responsibility required by
Guideline § 3E1.1(a) and that his decision did not involve any
rare circumstance. Accordingly, on August 23, 2002, the
district court re-sentenced the appellant and, based on an
offense level of 32 and a criminal history category of VI,
imposed concurrent sentences of 210 months’ imprisonment
on each count of conviction. The appellant filed a timely
appeal of his sentence. His case is thus before us for a third
time.
 5

II. ANALYSIS
We review the sentence imposed by the district court under
the ‘‘trichotomy’’ established by the Congress in 18 U.S.C.
§ 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 the facts.’’ United States v.
Kim, 23 F.3d 513, 517 (D.C. Cir. 1994). We affirm the
sentence because the district court did not err by denying the
appellant a downward adjustment for accepting responsibility
and for providing the government with information regarding
his participation in the offenses. Under our holding in Unit-
ed States v. Dozier, 162 F.3d 120, 127 (D.C. Cir. 1998), the
appellant’s decision to contest his guilt at trial was at odds
with the clear and full demonstration of acceptance of respon-
sibility required by Guideline § 3E1.1(a). U.S.S.G.
§ 3E1.1(a) (‘‘If the defendant clearly demonstrates accep-
tance of responsibility for his offenses, decrease the offense
level by 2 levels.’’).

A. ACCEPTANCE OF RESPONSIBILITY
The appellant contends that the district court erred by
failing to adjust his offense level downward three levels; two
levels for accepting responsibility for his offenses, plus an
additional level for ‘‘timely providing complete information to
the government concerning his own involvement’’ in the of-
fenses of conviction. Id. § 3E1.1(a)-(b)(1). The district court
found the appellant ineligible for these downward adjust-
ments because it concluded that his was not one of those
‘‘rare situations’’ in which a defendant who puts the govern-
ment to its burden of proof at trial may still receive a
reduction for acceptance of responsibility. (The district court
never reached the § 3E1.1(b)(1) issue because a defendant’s
acceptance of responsibility under § 3E1.1(a) is a condition
precedent to a one-level adjustment for providing complete
and timely information to the government regarding his
involvement in the offenses.) We have often recognized that
the district court is in a ‘‘unique position to evaluate a
defendant’s acceptance of responsibility,’’ Id. § 3E1.1 cmt.
 6

n.5, and thus its determinations regarding this issue ‘‘are
entitled, at the least, to the benefit of the clearly erroneous
standard of review.’’ United States v. Taylor, 937 F.2d 676,
680 (D.C. Cir. 1991).

1. APPLICABILITY OF RARE SITUATION EXCEPTION
Guideline § 3E1.1 allows a sentencing court to reduce a
defendant’s offense level by two levels ‘‘if the defendant
clearly demonstrates acceptance of responsibility for his of-
fense.’’ U.S.S.G. § 3E1.1(a). According to note two of the
accompanying commentary, the 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.’’ Id. § 3E1.1 cmt. n.2. Cf. 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.’’), cert. denied, 510 U.S. 1065 (1994). The com-
mentary cautions, however, that ‘‘conviction by trial TTT does
not automatically preclude a defendant from consideration for
such a reduction.’’ U.S.S.G. § 3E1.1 cmt. n.2. In ‘‘rare
situations’’ a defendant who exercises his right to trial may
nonetheless ‘‘clearly demonstrate an acceptance of responsi-
bility for his criminal conduct.’’ Id. As an example, the
commentary offers the case of a defendant who ‘‘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).’’ Id.
The appellant first argues that the rare situation exception
does not apply to him. He relies on the opening sentence of
note two which states that a downward adjustment for accep-
tance of responsibility is not meant to apply to a defendant
who puts the government to its proof at trial and ‘‘only then
admits guilt and expresses remorse.’’ Id. (emphasis added).
Because he admitted guilt and expressed remorse before he
put the government to its burden of proof at trial, he con-
tends that he need not show that his situation is ‘‘rare’’ in
order to obtain the downward adjustment.
 7

The district court rejected the argument, explaining that
the appellant’s claim is at odds with the commentary because
the latter provides that, if a defendant goes to trial, the
determination of whether he has accepted responsibility for
his crimes will be determined primarily by pretrial state-
ments and conduct. As the commentary makes clear, the
adjustment is generally unavailable to a defendant who goes
to trial because that decision reflects a state of mind—
innocence—fundamentally inconsistent with acceptance of re-
sponsibility. Id. § 3E1.1 cmt. n.2. The commentary also
provides that in the rare situation in which a defendant
clearly demonstrates remorse for his crime notwithstanding
his decision to go to trial, id., his acceptance of responsibility
will nevertheless be determined by his pretrial behavior.2
This makes sense because a post-conviction show of remorse
may likely be motivated by a self-serving purpose—leniency
at sentencing.
The appellant’s position is in fact inconsistent with our
decision in Dozier, 162 F.3d at 126–28, as well as the over-
whelming weight of authority from other circuits.3 In Dozier,
the court denied the rare situation exception to a defendant
2 Note two concludes with the following sentence: ‘‘In each
instance, however, a determination that a defendant has accepted
responsibility will be based primarily upon pre-trial statements and
conduct.’’ Id.
3 See United States v. Luciano–Mosquera, 63 F.3d 1142, 1157
(1st Cir. 1995) (no acceptance of responsibility adjustment under
rare situation exception where defendant offered to plead guilty but
went to trial), cert. denied sub nom. Pagan–San–Miguel v. United
States, 517 U.S. 1234 (1996); United States v. Portillo–Valenzuela,
20 F.3d 393, 394–95 (10th Cir.) (no adjustment under rare situation
exception where defendant cooperated and confessed but went to
trial), cert. denied, 513 U.S. 886 (1994); United States v. Garcia, 987
F.2d 1459, 1461–62 (10th Cir. 1993) (no adjustment under rare
situation exception where defendant gave statement and went to
trial to contest only one charge); United States v. Davila, 964 F.2d
778, 784 (8th Cir.) (no adjustment where defendant admitted in-
 8

who twice offered to plead guilty to weapons charges—of
which he was subsequently convicted—but refused to plead to
drug charges—of which he was acquitted. Id. We held that
the defendant had not clearly accepted responsibility for his
offenses notwithstanding that he offered to plead guilty be-
fore going to trial. Id. at 126–28. Although the Dozier court
concentrated on the fact that the defendant had not accepted
responsibility after trial, it nonetheless considered the rare
situation exception to have been triggered by his decision to
go to trial in the first place since he had been originally
willing to plead to certain charges but ultimately contested
his guilt at trial on all of the charges he faced. Id. We
therefore concluded that Dozier had to fit the rare situation
exception to receive the acceptance of responsibility adjust-
ment notwithstanding his initial willingness to admit partial
guilt. Id. Similarly, we conclude that the appellant too must
fit within the rare situation exception.

2. APPELLANT IS NOT IN RARE SITUATION
The appellant next argues, as he must, that he deserves a
downward adjustment for acceptance of responsibility despite

volvement in offense and offered to cooperate but went to trial),
cert. denied, 506 U.S. 964 (1992); United States v. Garcia, 917 F.2d
1370, 1377–78 (5th Cir. 1990) (no adjustment where defendant
cooperated with authorities and offered to plead guilty but went to
trial); cf. United States v. McKinney, 15 F.3d 849, 852–55 (9th Cir.
1994) (adjustment under rare situation exception available to defen-
dant who confessed, assisted authorities and attempted to plead
guilty but was rebuffed by government), cert. denied, 516 U.S. 857
(1995); United States v. Rodriquez, 975 F.2d 999, 1008–09 (3d Cir.
1992) (adjustment available to defendants where government re-
voked plea agreements); United States v. Muldoon, 931 F.2d 282,
289 (4th Cir. 1991) (adjustment for acceptance of responsibility
under rare situation exception awarded defendant who offered to
plead guilty but was rebuffed by government because he condi-
tioned plea on preserving appeal of nonfactual issue).
 9

having gone to trial to contest his guilt because his situation
is in fact rare. He offers two circumstances which he be-
lieves qualify him for the rare situation exception: (1) he was
willing to plead guilty to involvement in the Hartford Street
cocaine delivery but was prevented from doing so by the
government; and (2) he went to trial on the advice of counsel
who at the time was drug addicted to an extent that impaired
her judgment and rendered her interests adverse to his. We
believe that neither of these circumstances constitutes a rare
situation within the meaning of note two of the commentary
to Guideline § 3E1.1.
Initially, the district court concluded that the appellant
‘‘must first show that his situation is one of the ‘rare’ situa-
tions in which a decrease may be granted when the defendant
goes to trial. The defendant’s pursuit of trial must be in
order to preserve issues that do not relate to factual guilt.’’
Appellant’s Rec., Tab 21 at 7. The court found it unnecessary
to decide whether either of the circumstances raised by the
appellant constituted a rare situation, however, because it
concluded that he had not clearly demonstrated acceptance of
responsibility in any event. Subsequently, on the appellant’s
motion for reconsideration, the court considered his claim
that his situation was rare in that he was willing to plead
guilty based on his involvement with the Hartford Street
package but that the government balked. It held that his
situation was not rare because the government’s bargaining
position was not the sole reason he decided to go to trial.
Instead, the district court found that various reasons motivat-
ed the appellant, including his desire not to implicate his
supplier.
Although the district court did not clearly err in concluding
that the appellant’s situation does not qualify for the excep-
tion, Taylor, 937 F.2d at 680, we believe it incorrectly stated
the law in declaring that ‘‘a defendant’s pursuit of trial must
be in order to preserve issues’’ unrelated to factual guilt to fit
the rare situation exception. Appellant’s Rec., Tab 21 at 7
(emphasis added). The commentary describes simply as an
example of the exception a defendant who goes to trial to
 10

mount a constitutional challenge. U.S.S.G. § 3E1.1 cmt. n.2.4
See, e.g., United States v. De Leon Ruiz, 47 F.3d 452, 456 (1st
Cir. 1995) (‘‘The example of a constitutional challenge, given
by the guideline commentary as an exception, does not pur-
port to be an exhaustive list of exceptions.’’ (citing United
States v. Bennett, 37 F.3d 687, 696–97 (1st Cir. 1994)));
McKinney, 15 F.3d at 853 (‘‘Although the application note
lists only this single example of a case where a defendant can
receive the reduction despite going to trial, the TTT example
was not intended to be exhaustive.’’).
Our decision in Dozier dooms the appellant’s claim that his
situation is rare because the government prevented him from
pleading guilty to the Hartford Street delivery only. 162
F.3d at 126–27. In Dozier the defendant maintained that his
situation was rare ‘‘because he twice offered to plead guilty to
the only charges on which the jury convicted him.’’ Id. at
126. According to the defendant, the government compelled
him to go to trial by refusing to accept his guilty plea on the
weapons charges—of which he was later found guilty—unless
he also pleaded guilty to drug charges—of which he was later
acquitted. Id. We rejected his argument because the gov-
ernment did not preclude him from contesting his guilt on the
drug charges at trial while admitting his guilt on the weapons
charges. Id. at 127. The government’s refusal to accept the
defendant’s offer to plead ‘‘neither forced [him] to contest his
guilt on the weapons charges nor forced his attorney to
suggest in closing argument that the witnesses who said the
gun was his were not telling the truth.’’ Id. The defendant’s
decision to do otherwise on the belief that failing to contest
the gun charges would have prejudiced his defense on the
drug charges was a strategic choice, we concluded, that
ultimately proved unsuccessful: ‘‘Our point is not to second-
guess [the defendant’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 downward adjustment in the
4 ‘‘This may occur, for example, where a defendant goes to trial
to assert and preserve issues that do not relate to factual guiltTTTT’’
Id. § 3E1.1 cmt. n.2 (emphasis added).
 11

event of a conviction.’’ Id. We held that the defendant’s
decision to seek an acquittal on all charges against him was
not a rare circumstance, declaring that ‘‘[t]he fact that [the
defendant’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.’’ Id.
Similarly, the government did not prevent the appellant
from accepting responsibility for conspiring to distribute and
possessing with intent to distribute the 3.9 kilograms of
cocaine delivered to the Hartford Street address. Initially,
we note that the government’s offer only required the appel-
lant to plead guilty to conspiracy under 18 U.S.C. § 371 (‘‘If
two or more persons conspire TTT to commit any offense
against the United States TTT and do any act to effect the
object of the conspiracy, each shall be fined under this title or
imprisoned not more than five years, or both.’’). The govern-
ment’s offer carried a sentence less severe than the one he
would have received had the government required him to
plead guilty to conspiracy under 21 U.S.C. § 841, the statute
on which he had been indicted.5 Nevertheless, because the
parameters of the plea agreement have been obscured by the
5 Had the appellant pleaded guilty under 18 U.S.C. § 371—
which prescribes a five-year maximum sentence—the district court
would have been required to sentence him to 60 months’ imprison-
ment. U.S.S.G. § 5G1.1(a) (‘‘Where the statutorily authorized max-
imum sentence is less than the minimum of the applicable guideline
range, the statutorily authorized maximum sentence shall be the
guideline sentence.’’). Had the offer required the appellant to plead
guilty under 21 U.S.C. § 841, he would have received a much heftier
sentence, even with the § 3E1.1 adjustment. As a career offender,
the appellant would have received an initial base offense level of 32
and a criminal history category of VI. U.S.S.G. §§ 2D1.1(a)(3), (c),
4B1.1(C). If the full three-level adjustment under section 3E1.1
had been awarded, the appellant’s offense level would have been 29.
With an offense level of 29 and a criminal history category of VI,
 12

passage of time,6 compare Appellant’s Rec., Tab 16 at 12–14,
with Appellant’s Rec., Tab 15 at 14–15, Tab 16 at 14, 24, we
will consider the appellant’s contention without reference to
the statute specified in the plea agreement.
The appellant was free at trial, however, to stipulate to his
role in the Hartford Street delivery and was equally free to
simply refrain from contesting the government’s evidence
regarding that delivery. This is not the path he chose;
instead he not only denied involvement with the 2.9 kilograms
of cocaine delivered to the Featherwood Drive address but
also denied knowing the Hartford Street package contained
drugs. Indeed the appellant denied participating in the
conspiracy at all. But the government’s refusal to allow the
appellant to plead guilty only to the Hartford Street offense
in no way required his trial counsel to submit in her opening
statement that the evidence would show that the appellant
was not involved in any conspiracy, that he wondered what
his co-conspirator had done when the authorities surrounded
the Hartford Street address and that he only became aware
that ‘‘something was afoot’’ when he inspected the package
containing the cocaine. Record Material for Appellee (Appel-
lee’s Rec.), Tab C at 128–29. The government also did not
compel the appellant’s counsel to allege that the government
was ‘‘pointing a finger at the wrong guy’’ who was swept into
a criminal conspiracy by mistakenly ‘‘doing someone a favor.’’
Appellee’s Rec., Tab C at 129–30. As in Dozier, the appel-

his sentencing range would have been 151–188 months. Id. ch. 5,
pt. A (Sentencing Table). Accordingly, had the appellant been able
to accept the deal he complains the government refused to offer, the
best he could have hoped for (barring a departure under Guideline
section 5K) was a sentence more than twice as long as the one the
government’s offer carried.
6 Apart from the recollections of the relevant players, the only
evidence of a plea agreement in the record is a draft agreement
sent to the appellant’s counsel on July 19, 1994.
 13

lant was not put in a rare situation by the government;
rather, he made a strategic decision to roll the dice for an
acquittal on all charges and came up short. See 162 F.3d at
127. Accordingly, we conclude that the district court did not
clearly err in rejecting the appellant’s claim that the govern-
ment’s ‘‘forcing’’ him to trial made his situation ‘‘rare’’ so that
he remained eligible for an acceptance of responsibility ad-
justment.7 Id.
7 The appellant relies on an Eighth Circuit case, United States
v. Guerrero–Cortez, 110 F.3d 647 (8th Cir.), cert. denied sub nom.
Gonzalez v. United States, 522 U.S. 1017 (1997), in which the court
reversed the district court’s denial of the acceptance of responsibili-
ty adjustment, holding that it erred in ignoring evidence of the
defendant’s unsuccessful efforts to plead guilty based on his involve-
ment with the amount of drugs for which the court, at sentencing,
found him responsible. Id. at 654–56. The Guerrero–Cortez court
reasoned that the government thwarted the defendant’s attempt to
plead guilty:
[Defendant] was at all times ready to plead guilty to two
kilograms. The government, however, refused to accept his
plea unless he would admit to his involvement with five kilo-
grams. By refusing to accept [the defendant’s] guilty plea, the
government gave [him] no choice but to go to trial. Ultimately,
however, the district court found [the defendant] responsible
for only two kilograms.
Id. at 656. The court found the defendant to have been ‘‘forced’’ by
the government into a rare situation in which his decision to
proceed to trial did not preclude him from receiving credit for
acceptance of responsibility. Id. at 655–56. The court therefore
held that ‘‘it was clearly erroneous for the district court to conclude
that [defendant’s] acceptance of responsibility came at sentencing,
and not at the time of trial.’’ Id. at 656. The district court
distinguished Guerrero–Cortez primarily on the facts, explaining
that it bore only a superficial resemblance to the appellant’s case
because the defendant in Guerrero–Cortez went to trial solely
because the government would not allow him to plead guilty. In
contrast, the appellant offered several reasons to explain his deci-
sion to reject the plea agreement: his unwillingness to implicate
 14

The appellant also maintains that, in finding that his situa-
tion was not rare, the district court improperly considered his
unwillingness to implicate8 his supplier by testifying against
him. His argument presents a question of first impression in
our Circuit: May a sentencing court consider a defendant’s
refusal to implicate a co-conspirator in denying him an accep-
tance of responsibility adjustment? Today we join those
circuits that have answered this question affirmatively.9 To
receive an adjustment under Guideline § 3E1.1(a), a defen-

others, including his supplier; his trial counsel’s (erroneous) advice
that his grand jury testimony could not be used against him if he
‘‘voided’’ the plea agreement and demanded a trial; and his trial
counsel’s belief that his opportunity to plead was dependent upon a
co-conspirator entering a plea agreement.
8 Although the appellant repeatedly identified the source of the
narcotics when testifying before the grand jury, he refused to
testify against the source once the latter was apprehended.
9 The circuits are split on the question whether a sentencing
court may consider evidence of the defendant’s refusal to implicate
co-conspirators to deny an adjustment under Guideline § 3E1.1.
Compare, e.g., United States v. Larkin, 171 F.3d 556, 558–59 (7th
Cir.) (holding that ‘‘it was clearly permissible for the district court
to condition the reduction for acceptance of responsibility on [the
defendant’s] willingness to provide’’ information identifying the
drug source), cert. denied, 528 U.S. 883 (1999); United States v.
Nunez–Rodriguez, 92 F.3d 14, 19–22 (1st Cir. 1996) (‘‘no sound
basis for a general rule barring a defendant’s voluntary cooperation
in truthfully identifying criminal associates from consideration by
the sentencing court in determining the genuineness of the defen-
dant’s remorse’’); United States v. Eberspacher, 936 F.2d 387, 389–
90 (8th Cir. 1991) (no error in relying on defendant’s refusal to
name source of drugs to deny acceptance of responsibility adjust-
ment); with, e.g., United States v. Leonard, 50 F.3d 1152, 1158–59
(2d Cir. 1995) (defendant need not assist authorities in incriminating
others to receive one-level reduction under § 3E1.1(b)(1)); United
States v. Vance, 62 F.3d 1152, 1158 (9th Cir. 1995) (error in relying
on defendant’s refusal to cooperate with authorities by revealing
and testifying against drug supplier to deny acceptance of responsi-
bility adjustment); McKinney, 15 F.3d at 854 (defendant remained
 15

dant must ‘‘demonstrate[ ] acceptance of responsibility for his
offense’’ by ‘‘truthfully admitting the conduct comprising the
offense(s) of conviction, and truthfully admitting or not falsely
denying any additional relevant conduct for which the defen-
dant is accountable under § 1B1.3 (Relevant Conduct).’’
U.S.S.G. § 3E1.1(a) & cmt. n.1(a). Such an admission does
not require a defendant to ‘‘volunteer, or affirmatively admit,
relevant conduct beyond the offense of conviction.’’ Id. A
defendant ‘‘may remain silent in respect to relevant conduct
beyond the offense of conviction without affecting his ability
to obtain a reduction under this subsection.’’ Id. But ‘‘a
defendant who falsely denies, or frivolously contests, relevant
conduct that the court determines to be true has acted in a
manner inconsistent with acceptance of responsibility.’’ Id.
Although the language of the Guideline and its commentary
does not specify all of the factors a district court may
consider in determining whether a defendant has ‘‘truthfully
admitt[ed] the conduct comprising the offense(s) of convic-
tion,’’ § 3E1.1(a) & cmt. n.1 (‘‘appropriate considerations in-
clude, but are not limited to’’); see Nunez–Rodriguez, 92 F.3d
at 20 (‘‘[P]ersonal responsibility may be manifested in various
ways and the acceptance of responsibility determination un-
der § 3E1.1 necessarily envisions a fact-specific inquiry in
each case.’’), the Guidelines vest a sentencing court with ‘‘the
latitude to consider all reliable, probative indicia tending to
demonstrate, or countervail, the genuineness of the particular
defendant’s remorse.’’ Id.
We conclude that under Guideline § 3E1.1 the sentencing
court may, in the exercise of its discretion, require a defen-
dant to satisfy his obligation to truthfully admit the ‘‘conduct
comprising the offense(s) of conviction’’ by disclosing relevant
information beyond the mere technical elements of the of-
fense(s), including information regarding other criminal par-

eligible for reduction to offense level for acceptance of responsibility
notwithstanding his refusal to incriminate co-conspirators).
 16

ticipants. U.S.S.G. § 3E1.1(a) & cmt. n.1(a). In so holding,
we agree with the Seventh Circuit that a sentencing court
may require a defendant seeking an acceptance of responsibil-
ity adjustment to provide ‘‘a ‘candid and full unraveling’ of the
circumstances surrounding the offense of conviction, including
information about the methods used by the defendant to
commit his crime and the source of the contraband he pos-
sessed at the time of the arrest.’’ Larkin, 171 F.3d at 558
(quoting United States v. Hammick, 36 F.3d 594, 599–600
(7th Cir. 1994)). A defendant’s willingness to implicate others
may not in every case provide a ‘‘bona fide indicium,’’ Nunez–
Rodriguez, 92 F.3d at 20, of acceptance of responsibility and,
conversely, his unwillingness may not always signal a lack of
remorse. Vance, 62 F.3d at 1158 (‘‘A cunning but not contrite
defendant may buy his way out of trouble by providing
evidence against someone else, and an entirely contrite defen-
dant may out of fear, ignorance of information useful to the
prosecutors, or other reason, fail to provide assistance.’’);
Nunez–Rodriguez, 92 F.3d at 20. In the first instance,
however, it is up to the district court to assess the defendant’s
remorse, which may include probing the reasons the defen-
dant exposes, or refuses to expose, his associates. Nunez–
Rodriguez, 92 F.3d at 20.10 We think the district court here
10 Our holding should come as no surprise; we hinted at it in
United States v. Taylor, 937 F.2d 676, 680 (D.C. Cir. 1991). There
we held that the district court did not err in refusing to give an
acceptance of responsibility adjustment to defendants who had
pleaded guilty to violating 18 U.S.C. § 922(g)(1) (possession of
firearm by convicted felon) because they offered an ‘‘ ‘inherently
incredible’ ’’ explanation for cruising around in a pickup truck while
carrying loaded firearms and wearing bullet-proof vests. Id. at 680.
We explained that ‘‘the scope of the district court’s wide discretion
under section 3E1.1 is not restricted to an evaluation of the
defendant’s acceptance of responsibility for the narrow offense of
conviction and its essential elements’’ and we concluded that ‘‘the
district court properly interpreted the guideline to require a truth-
ful and complete explanation of, and a genuine acceptance of
responsibility for, all of the circumstances surrounding the defen-
dants’ firearm possession offense.’’ Id. (emphasis added).
 17

correctly considered the appellant’s unwillingness to name his
source in concluding that he was not in a rare situation.
Finally, the appellant maintains that his situation is rare
because he relied on the advice of his drug-impaired trial
counsel. The appellant’s theory is that his lawyer encouraged
him to proceed to trial so she could earn additional compensa-
tion to support her addiction. His trial counsel ultimately
pleaded guilty to two counts of theft of government property
for false claims she submitted in connection with legal ser-
vices she never provided to clients she was appointed to
represent. The district court rejected the appellant’s argu-
ment, explaining that his allegation was more properly styled
as a Sixth Amendment ineffective assistance of counsel
claim.11 We conclude that the district court did not clearly
err in rejecting it at sentencing.12

B. LIMITED EXAMINATION OF TRIAL COUNSEL
The appellant challenges the district court’s limiting of his
examination of his trial counsel at the re-sentencing hearing.
The district court sustained the government’s objection to the
question the appellant’s then-counsel posed to his trial coun-
sel regarding ‘‘the nature of her problem in 1994,’’ apparently
referring to her false claims conviction. Appellant’s Rec.,
Tab 16 at 16. The court explained that ‘‘there’s no need to go
in to that’’ but nevertheless allowed defense counsel to proffer
11 Cf. United States v. Day, 285 F.3d 1167, 1172 (9th Cir. 2002)
(remanding defendant’s collateral appeal to determine whether
counsel’s incompetent advice precluding acceptance of responsibility
adjustment constituted prejudice under Strickland v. Washington,
466 U.S. 668 (1984)).
12 Because we conclude that the appellant was properly denied
a two-level downward adjustment to his offense level under
§ 3E1.1(a), we need not reach the merits of his claim to an
additional one-level reduction for ‘‘timely providing complete infor-
mation to the government concerning his own involvement in the
offense[.]’’ U.S.S.G. § 3E1.1(b)(1). A defendant must qualify for
an adjustment under § 3E1.1(a) before he is eligible for the addi-
tional one-level adjustment under § 3E1.1(b)(1). See id.
 18

for the record that the appellant’s trial counsel had a ‘‘crimi-
nal difficulty.’’ Id. The appellant now maintains that had
the district court not foreclosed this avenue of inquiry, ‘‘there
was a substantial possibility’’ he would have been able to elicit
an admission from his trial counsel that she advised him to go
to trial (rather than use a strategy more consistent with
acceptance of responsibility) because she needed the money a
trial would bring in order to support her drug addiction or,
‘‘at least,’’ that she was less than conscientious in her repre-
sentation because her money problem ‘‘had occurred to her.’’
Br. for Appellant at 32. We conclude that the district court
did not abuse its discretion by circumscribing the appellant’s
effort to inquire further into the nature of his trial counsel’s
‘‘criminal difficulty.’’
Preliminarily, there is some reason to question whether the
district court in fact prevented the appellant from examining
his trial counsel in view of his then-counsel’s interpretation of
the district court’s ruling at the time. Although the court
sustained the government’s objection regarding the appel-
lant’s inquiry into his trial counsel’s ‘‘criminal difficulty,’’
shortly thereafter his then-counsel pursued questioning de-
signed to elicit the desired admission. The district court did
not interrupt counsel when he asked the appellant’s trial
counsel whether ‘‘it is fair to say that in the summer of 1994
you had a great need for money.’’ Appellant’s Rec., Tab 16 at
16. Upon his trial counsel’s answer to this question, however,
the appellant’s then-counsel abruptly retreated, explaining
that he ‘‘would just like to argue the exhibits rather than
have to ask her these questions.’’ Id. at 17 (emphasis added).
Defense counsel’s decision to argue from the exhibits thus
appeared to be a strategic maneuver—not one dictated by the
court.
A ruling regarding the admission of evidence during a
sentencing hearing is reviewed for abuse of discretion. See
FED. R. CRIM. P. 32; U.S.S.G. § 6A1.3 cmt.; United States v.
Small, 74 F.3d 1276, 1287 (D.C. Cir.) (‘‘[T]he sentencing court
TTT is to determine the appropriate procedure for gathering
evidenceTTTT’’), cert. denied, 517 U.S. 1229 (1996). We cannot
 19

say that the district court abused its discretion here. It
allowed the appellant’s counsel to argue based on exhibits—
his trial counsel’s indictment and the government’s memoran-
dum in aid of her sentencing—that her drug addiction im-
paired her judgment and made her interests adverse to his
and that, as a consequence, she supplied him with self-serving
advice. Thus the appellant had an adequate opportunity to
present his theory to the district court and he in fact did so.
The appellant relies on United States v. Rodriguez, 975
F.2d 999, 1009 (3rd Cir. 1992), to argue that the court did not
adequately consider the role his trial counsel played in his
decision to proceed to trial. Br. for Appellant at 31–32. The
Rodriguez court held that the district court erred by ‘‘failing
to consider the reasons for which [the defendants] refused to
plead to the entire indictment, along with the apparent validi-
ty of those reasons.’’ 975 F.2d at 1009. Here, however, the
district court held an evidentiary hearing during which wit-
nesses offered different reasons why the appellant went to
trial. The appellant’s counsel was allowed to offer an expla-
nation for his decision to go to trial based on his trial
counsel’s testimony and exhibits. And the appellant himself
provided a reason that calls into question the claim that it was
his trial counsel’s compromised advice that drove him to trial.
Accordingly, we conclude that the district court did not abuse
its discretion in limiting examination of the appellant’s trial
counsel at the sentencing hearing.

III. CONCLUSION
For the foregoing reasons, the sentence imposed by the
district court is affirmed.
So ordered