United States Court of Appeals
For the First Circuit
No. 03-2181
UNITED STATES OF AMERICA,
Appellee,
v.
PETER MCLAUGHLIN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Cyr, Senior Circuit Judges.
Thomas F. Hallett on brief for appellant.
Paula D. Silsby, United States Attorney, and F. Mark Terison,
Senior Litigation Counsel, on brief for appellee.
August 6, 2004
SELYA, Circuit Judge. On December 11, 2002, a federal
grand jury superseded a single-count indictment handed up some four
months earlier and charged defendant-appellant Peter McLaughlin,
inter alios, with three counts involving drug trafficking. See 21
U.S.C. §§ 841(a)(1), 846; 18 U.S.C. § 2. On March 10, 2003, while
McLaughlin was free on pretrial release, local authorities arrested
him for operating a motor vehicle under the influence of
intoxicating liquor. See Me. Rev. Stat. Ann. tit. 29, § 2411. The
next day, he was again arrested and taken into state custody, this
time for possession of heroin. See id. tit. 17-A, § 1107-a.
McLaughlin reached an agreement with the federal
prosecutor on April 4, 2003. As a result, he pleaded guilty on
that date to a single-count information that charged him with a
one-time violation of 21 U.S.C. § 841(a)(1). At the disposition
hearing, the district court, troubled by McLaughlin's misbehavior
while on pretrial release, refused to reduce his offense level for
acceptance of responsibility. See USSG §3E1.1(a) (providing that
a defendant's offense level may be reduced by two levels if "the
defendant clearly demonstrates acceptance of responsibility for his
offense"). The court then imposed a 35-month incarcerative
sentence and, pursuant to the plea agreement, dismissed the
superseding indictment vis-à-vis McLaughlin.
McLaughlin's appeal focuses on a single ruling: the
denial of a downward adjustment for acceptance of responsibility.
-2-
An inquiry into whether a defendant has accepted responsibility is
typically a fact-dominated enterprise, and we ordinarily review the
sentencing court's determination of such an issue for clear error.
United States v. Talladino, 38 F.3d 1255, 1263 (1st Cir. 1994);
United States v. Royer, 895 F.2d 28, 29 (1st Cir. 1990). When the
question involves an interpretation of the sentencing guidelines,
however, we employ de novo review. See Talladino, 38 F.3d at 1263
("[Q]uestions of law — including interpretive questions concerning
the meaning and scope of the sentencing guidelines — engender de
novo review."). The issue on appeal has two dimensions. It
requires us first to determine how section 3E1.1(a) operates (a
matter that entails plenary review)1 and then to determine the
supportability of the district court's factfinding (a matter that
entails review only for clear error).
We begin with the law-dominated dimension of McLaughlin's
argument. He asseverates that he accepted responsibility on April
4, 2003 (when he tendered his guilty plea to a lesser charge); that
he was fully compliant with the law between that date and the date
1
The Supreme Court has stated that in cases in which the legal
question is a "minor, detailed, interstitial question of sentencing
law," due deference must be given to the district court's decision.
Buford v. United States, 532 U.S. 59, 64 (2001). There, however,
the issue sub judice involved determining whether a specific
defendant's prior convictions had been consolidated for sentencing.
Id. at 60. The fact-intensive nature of that inquiry dictated the
use of a deferential standard of review. Id. at 66. That
situation is easily distinguished from the interpretive question
presented in this case.
-3-
of sentencing; and that, accordingly, the lower court should have
granted him a downward adjustment for acceptance of responsibility.
In his view, the court erred in factoring his prior arrests into
the acceptance-of-responsibility calculus because those arrests
occurred before he accepted responsibility (and, thus, had no
bearing on whether his professions of remorse were authentic). In
essence, then, he proposes an interpretation of section 3E1.1(a)
that would forbid a sentencing court, when applying the guideline,
from examining exogenous acts undertaken by a defendant before he
manifests an initial acceptance of responsibility (such as by
entering a guilty plea).2
This is a bold, but misguided, proposition. In gauging
whether a defendant has accepted responsibility, a sentencing court
may appropriately consider whether he has voluntarily ceased all
participation in criminal activity. See USSG §3E1.1, comment.
(n.1(b)). It follows that when a defendant commits new offenses
after having been charged and those offenses reflect adversely on
the sincerity of the defendant's avowed contrition, the sentencing
court may treat the commission of those offenses as an indication
that the defendant has not accepted responsibility for the original
crime. United States v. Carrington, 96 F.3d 1, 9 (1st Cir. 1996).
In such circumstances, a sentencing court lawfully may "decline to
2
By "exogenous," we mean conduct not directly related to the
offense(s) charged in the pending federal case.
-4-
award a reduction for acceptance of responsibility on that ground
alone." Id.
McLaughlin seeks to carve out an exception to this
principle for exogenous pre-plea offenses. Rather than
acknowledging the radical nature of this exception, he strives to
portray it as a mainstream interpretation supported by a majority
of the courts of appeals. This portrayal does not withstand
scrutiny.
To be sure, McLaughlin marshals a long list of cases to
buttress his proposition. See, e.g., United States v. Prince, 204
F.3d 1021 (10th Cir. 2000); United States v. Ngo, 132 F.3d 1231
(8th Cir. 1997); United States v. Byrd, 76 F.3d 194 (8th Cir.
1996); United States v. McDonald, 22 F.3d 139 (7th Cir. 1994);
United States v. Pace, 17 F.3d 341 (11th Cir. 1994); United States
v. Woods, 927 F.2d 735 (2d Cir. 1991); United States v. Cooper, 912
F.2d 344 (9th Cir. 1990); United States v. Scroggins, 880 F.2d 1204
(11th Cir. 1989). Fairly read, these decisions do not help
McLaughlin; they merely stand for the inverse of his proposition.
In each of them, the defendant had accepted responsibility and then
committed a subsequent offense that the district court found
sufficient to undermine the sincerity of the professed acceptance
of responsibility. See, e.g., Prince, 204 F.3d at 1023-24; Ngo,
132 F.3d at 1233; Byrd, 76 F.3d at 196-97; McDonald, 22 F.3d at
144; Pace, 17 F.3d at 343; Woods, 927 F.2d at 736; Cooper, 912 F.2d
-5-
at 348; Scroggins, 880 F.2d at 1215-16. That reasoning tells us
nothing about whether (or to what extent) acts committed before a
defendant accepts responsibility should be taken into consideration
in constructing the acceptance-of-responsibility calculus.3
McLaughlin places especially heavy reliance on the
decision in United States v. Tilford, 224 F.3d 865 (6th Cir. 2000),
in which the Sixth Circuit, on de novo review, vacated a district
court's refusal to award an acceptance-of-responsibility reduction
based upon the defendant's post-indictment but pre-plea behavior.
A close reading of this decision reveals that the court of appeals
did not purpose to establish a per se rule anent the timing of an
offender's exogenous acts, but, rather, required that "there be
some conduct that the court can find is inconsistent with that
specific acceptance of responsibility [betokened by] the guilty
plea." Id. at 868 (quoting United States v. Jeter, 191 F.3d 637,
641 (6th Cir. 1999)) (emphasis in Tilford). After applying this
requirement to Tilford's situation, the Sixth Circuit determined
that the relevant time period in that case was the period between
the guilty plea and the disposition hearing. Id. To the extent
(if at all) that Tilford establishes a per se temporal rule that
3
Indeed, in one of the cases cited by McLaughlin, the Eleventh
Circuit, although not specifically holding that the sentencing
judge may look to the defendant's behavior before his acceptance of
responsibility, upheld a denial of a section 3E1.1(a) credit when
the defendant had engaged in illegal behavior while on pretrial
release before entering a guilty plea. See Scroggins, 880 F.2d at
1216.
-6-
debars a sentencing court from examining any pre-plea behavior in
the course of gauging the genuineness of an accused's acceptance of
responsibility, we deem it inconsistent with Carrington, 96 F.3d at
9, and decline to follow it.4
Having found McLaughlin's string of citations
unpersuasive, we take a fresh look at the issue that he raises. A
defendant is entitled to a two-level credit if he "clearly
demonstrates acceptance of responsibility for his offense." USSG
§3E1.1(a). The burden is on the defendant to show an entitlement
to the reduction. See United States v. Franky-Ortiz, 230 F.3d 405,
408 (1st Cir. 2000); Royer, 895 F.2d at 29-30. Although the entry
of a guilty plea prior to trial is impressive evidence of
acceptance of responsibility, it does not automatically entitle a
defendant to the credit. See United States v. Bradley, 917 F.2d
601, 606 (1st Cir. 1990); see also USSG §3E1.1, comment. (n.3).
The sentencing court must still find that the defendant exhibits
"candor and authentic remorse" as opposed to mouthing "a pat
recital of the vocabulary of contrition." Royer, 895 F.2d at 30.
The Sentencing Commission has provided guidance for
courts charged with determining whether heartfelt remorse exists.
See USSG §3E1.1, comment. (n.1) (limning a non-exclusive list of
4
The Sixth Circuit seems to be divided on the correct
interpretation of Tilford. See United States v. Hakley, ___ Fed.
Appx. __ (6th Cir. 2004); id. at __ (Suhrheinrich, J., dissenting).
-7-
factors that courts may consider in that regard). One factor is
whether the defendant "voluntarily has terminated or withdrawn from
criminal conduct or associations." Id. (n.1(b)). There is nothing
in this application note or elsewhere in the guidelines to suggest
a temporal limit on this factor. Moreover, the non-exclusivity of
the list suggests that the sentencing court should look to all
relevant data to reach a just result. For these reasons, we agree
with the Fifth Circuit that the commentary to section 3E1.1 fairly
implies that "a defendant's failure to comply with conditions of a
bond [can] be highly relevant to assessing the sincerity of the
defendant's contrition." United States v. Hooton, 942 F.2d 878,
883 (5th Cir. 1991).
On policy grounds, the temporal cut-off proposed by
McLaughlin makes very little sense. Timely acceptances of
responsibility already are rewarded by a provision that allows for
an additional one-level reduction if the defendant "(1) timely
provid[es] complete information to the government concerning his
own involvement in the offense; or (2) timely notif[ies]
authorities of his intention to enter a plea of guilty, thereby
permitting the government to avoid preparing for trial and
permitting the court to allocate its resources efficiently." USSG
§3E1.1(b). It would be perverse to encourage a practice whereby a
defendant, released on bail, would be benefitted by waiting as long
as possible before accepting responsibility. Yet that is what
-8-
would happen if McLaughlin's argument were to prevail. Deferring
a guilty plea would work to a defendant's advantage by shrinking
the universe of conduct that could be counted against him in the
acceptance-of-responsibility calculus. In other words, the longer
the defendant postponed the entering of a guilty plea, the less the
exogenous criminal conduct that the sentencing court would be able
to consider. And this would be so regardless of the heinousness of
the exogenous crimes or the lack of contrition that they might
betoken. The guidelines ought to be construed in a commonsense
manner, and we are not inclined to impute to the Sentencing
Commission so counter-intuitive a design.
We note, too, that courts regularly consider a
defendant's favorable pre-plea conduct in granting downward
adjustments for acceptance of responsibility. See, e.g., United
States v. Sklar, 920 F.2d 107, 115-16 (1st Cir. 1990); United
States v. Wilkes, 130 F. Supp. 2d 222, 240 (D. Mass. 2001). Most
streets run two ways, and McLaughlin has offered no sensible reason
why a defendant's praiseworthy pre-plea conduct should be figured
into the calculus but his blameworthy pre-plea conduct should not.
To sum up, we conclude that McLaughlin's cramped
interpretation of the acceptance-of-responsibility guideline is
incorrect. We reject that interpretation and hold that the
district court had the right to consider McLaughlin's exogenous
-9-
pre-plea conduct in denying him an acceptance-of-responsibility
discount.
Anticipating the possibility of such a holding,
McLaughlin makes an alternative argument. This argument is
premised on two facts: (1) that he pleaded to an information that
did not exist until around the time of the plea agreement, and (2)
that the exogenous crimes he committed while on pretrial release
antedated the filing of the information. Building on this
foundation, he posits that those crimes could not be used to
justify the denial of an acceptance-of-responsibility adjustment.
His premise is accurate, but the conclusion that he draws from it
is not.
As a general matter, it is true that courts cannot go
back limitlessly in time in assessing acceptance of responsibility.
See United States v. Ceccarani, 98 F.3d 126, 130 (3d Cir. 1996);
McDonald, 22 F.3d at 141. Normally, the lodging of a federal
charge marks the commencement of the relevant time frame. Tilford,
224 F.3d 868 (explaining that a "defendant must be on notice that
the federal government has an interest in his or her affairs before
the acceptance-of-responsibility guideline comes into play").5 The
rationale for using this milestone is that the clock should start
5
Given the Tilford court's wording of this rule, it is
arguable that knowledge of a federal investigation may be enough to
start the clock. For present purposes, we need not explore that
possibility.
-10-
to run no later than the time that the defendant has been put on
notice, by the filing of a formal charge, that federal prosecutors
have taken an interest in his conduct.
McLaughlin's argument founders on these shoals. From and
after the date of the original indictment, McLaughlin knew full
well that the Justice Department had an interest in the conduct
underlying the count of conviction (i.e., his drug trafficking in
April of 2002). He nevertheless committed other crimes while on
pretrial release for the federal charge. Tellingly, the very same
conduct supplied the basis both for the charges contained in the
indictment and for the lone count of the information that
superseded it. Where, as here, the same conduct is the basis of
both an original and a superseding charge, distinguishing between
the two for acceptance-of-responsibility purposes would mindlessly
exalt form over substance. Under these circumstances, McLaughlin's
entitlement to an acceptance-of-responsibility discount should not
depend upon which charging document was in force when he entered
his plea.
Our conclusion that the district court properly
interpreted section 3E1.1(a) as ceding it discretion to consider
McLaughlin's exogenous pre-plea arrests brings us to the second
half of our bifurcated inquiry. This exercise need not occupy us
for long.
-11-
It is uncontroverted that while on pretrial release,
McLaughlin drove under the influence of alcohol and possessed
heroin. Pretrial release is far from automatic in federal drug-
trafficking cases, and by engaging in the conduct described above,
McLaughlin broke his promise to behave in a law-abiding manner
while free on bond. By like token, those actions impugned the
district court's authority. Thus, it was not clearly erroneous for
the court to conclude that the commission of these new crimes
belied the genuineness of any self-serving claim of remorse. See,
e.g., Ceccarani, 98 F.3d at 129-30 (holding that post-offense
conduct can shed a bright light on the sincerity of a defendant's
professed remorse); United States v. Kirkland, 28 F.3d 49, 50-51
(7th Cir. 1994) (similar); United States v. Kidd, 12 F.3d 30, 34
(4th Cir. 1993) (similar).
To say more on this point would be supererogatory.
Keeping in mind that the defendant must carry the devoir of
persuasion as to whether he deserves a downward adjustment for
acceptance of responsibility, Royer, 895 F.2d at 29-30, we find no
hint of error in the district court's determination that McLaughlin
fell short. Indeed, this case is a paradigmatic example of the
tenet that a sentencing court properly may deny a reduction for
acceptance of responsibility if a defendant engages in further
criminal conduct while on pretrial release. See Carrington, 96
F.3d at 9; see also United States v. O'Neil, 936 F.2d 599, 600 (1st
-12-
Cir. 1991); see generally USSG §3E1.1, comment. (n.1(b)) (noting
that appropriate considerations in making the acceptance of
responsibility determination include a defendant's "voluntary
termination or withdrawal from criminal conduct").
We need go no further. After carefully reviewing the
sentencing guidelines, the commentary, the parties' briefs, and the
most analogous precedents, we conclude that a sentencing court has
the discretion, in an appropriate case, to consider a defendant's
conduct at any point after an indictment is handed up or an
information is filed. Here, the sentencing court appropriately
mulled, and sensibly acted upon, that type of evidence. The record
bears out the court's determination that McLaughlin engaged in
continued criminal conduct bespeaking a lack of sincere contrition.
Consequently, we uphold the court's refusal to reduce McLaughlin's
sentence for acceptance of responsibility.
Affirmed.
-13-