United States Court of Appeals
For the First Circuit
No. 08-1432
UNITED STATES OF AMERICA,
Appellee,
v.
JASON JORDAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Howard, Circuit Judges.
Joseph M. Wrobleski, Jr. on brief for appellant.
Paula D. Silsby, United States Attorney, and Renée M. Bunker,
Assistant United States Attorney, on brief for appellee.
December 5, 2008
SELYA, Circuit Judge. This case requires us to consider
the circumstances under which a defendant's commission of criminal
acts while free on bail may justify the denial of an offense level
reduction for acceptance of responsibility. Discerning no clear
error in the district court's calibration of the sentencing
balance, we affirm.
The facts are straightforward. On January 10, 2007, a
federal grand jury indicted defendant-appellant Jason Jordan and
others on several counts related to alleged drug trafficking.
Eight days later, the authorities took Jordan into custody. On
January 24, a magistrate judge ordered his transfer to an inpatient
drug-treatment program. Following a period of therapy, the
magistrate judge released Jordan on personal recognizance. The
conditions of his release included prohibitions against
"commit[ting] any offense in violation of federal, state or local
law," "possessing a . . . dangerous weapon[]," and making "any . .
. use of alcohol."
Jordan reentered the community on March 8, 2007. In the
early morning hours of June 15 (while still out on bail), he was
stopped for speeding in Portland, Maine. He admitted that he had
been drinking, flunked a field sobriety test, and registered a
blood alcohol level of 0.10. A search of his car revealed a
double-edged knife tucked into the driver's side door pocket.
Local authorities charged him with operating a motor vehicle while
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under the influence of alcohol, see Me. Rev. Stat. Ann. tit. 29-A,
§ 2411, and carrying a concealed weapon, see Me. Rev. Stat. Ann.
tit. 25, § 2001-A.
Word of Jordan's travails soon filtered back to the
federal court. On July 9, the court revoked his bail. Ten weeks
later, Jordan pleaded guilty to the federal drug-trafficking
charges.
The district court directed the probation office to
prepare a presentence investigation report (PSI Report). The PSI
Report calculated Jordan's total offense level at 28 and assigned
him to criminal history category I. This combination resulted in
a guideline sentencing range of 78-97 months. In constructing that
paradigm, the PSI Report declined to recommend an offense level
reduction for acceptance of responsibility. See USSG §3E1.1. The
Report stated:
The defendant did . . . admit to the offense
of conviction; however, the defendant also
continued to engage in criminal behavior while
on bond and was arrested for two new criminal
offenses. Therefore, the defendant had not
completely withdrawn from criminal conduct and
the new conduct is related to the offense of
conviction as it is substance abuse (alcohol)
related.
Jordan objected to this portion of the PSI Report,
arguing that the June 15 incident was an aberration that should not
be allowed to overshadow his "serious efforts to resurrect his life
and to accept the consequences of his conduct." In support, he
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submitted a myriad of letters from friends and family attesting to
his transformation. He also explained to the court that on June
15, his companions had urged him to drink; he rebuffed their
exhortations for most of the night and, when he finally succumbed,
he downed only two drinks.
Jordan attempted to minimize the dangerous weapon offense
as well. He stated that the knife was merely a tool to permit him
to open the console inside the automobile.
The district court devoted considerable time at
sentencing to Jordan's purported acceptance of responsibility. In
the end, the court found that Jordan had not carried the devoir of
persuasion and denied the sought-after adjustment. The court
explained that its ruling rested largely on Jordan's drunken
driving offense,1 and more specifically, Jordan's decision "to go
into a bar with a bunch of buddies who [were] drinking." By taking
that step, Jordan showed that he "didn't care" about the bail
conditions; rather, he "was willing to take his chances."
Relatedly, the court rejected Jordan's claim to have limited
himself to two drinks: the quantity of alcohol consumed was more
accurately evidenced, the court thought, by Jordan's blood alcohol
level (which betrayed a much greater degree of consumption).
1
The charges arising out of the June 15 incident were still
pending when the district court sentenced Jordan.
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Finally, the court explained why it perceived a
connection between acceptance of responsibility for the drunken
driving offense and the offenses of conviction:
In my view a person who is entitled to
acceptance of responsibility fully understands
the course of criminal conduct they're
involved with and is telling the Court that I
am admitting my criminal conduct, and that
admission includes the fact that I will
continue to refrain from criminal conduct
while out on bail. That [did not] happen
here, and I'm not getting the inclination from
Mr. Jordan that during this period of time he
had made a reasoned determination that he was
going to change.
The court proceeded to impose a mid-range sentence of 80
months in prison. This timely appeal ensued. In it, Jordan
alleges that the district court gave undue weight to his drunken
driving offense in denying him a downward adjustment for acceptance
of responsibility. He argues that the court erred by considering
the drunken driving offense at all or, in the alternative, by
emphasizing that offense at the expense of other factors (such as
his willingness to plead guilty and his enthusiastic participation
in drug-treatment programs).
We review a district court's answers to abstract legal
questions, including its interpretation of the federal sentencing
guidelines, de novo. See United States v. Muñiz, 49 F.3d 36, 41
(1st Cir. 1995); United States v. St. Cyr, 977 F.2d 698, 701 (1st
Cir. 1992). The court's findings of fact, however, are reviewed
only for clear error. St. Cyr, 977 F.2d at 701. This clear-error
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standard applies to a sentencing court's factbound determination
that a defendant has not accepted responsibility. See United
States v. Deppe, 509 F.3d 54, 60 (1st Cir. 2007); United States v.
Royer, 895 F.2d 28, 29 (1st Cir. 1990).
Our focus here is on section 3E1.1 of the federal
sentencing guidelines. Subsection (a) of that section provides for
a two-level reduction in a defendant's offense level "[i]f the
defendant clearly demonstrates acceptance of responsibility for his
offense." Subsection (b) allows an additional level to be
subtracted if certain other conditions also are satisfied. Because
eligibility for the two-level adjustment under subsection (a) is a
prerequisite for receipt of the extra level under subsection (b),
we concentrate on the requirements of the former subsection.
On appeal, Jordan challenges only the district court's
factfinding, conceding that the court was "legally correct[] in its
interpretation of section 3E1.1." Appellant's Br. at 7. But that
concession is a bit misleading because Jordan’s factual arguments
implicate a question of law. Hence, we must address that question
before moving to the heart of his claim.
To support his factual argument that the district court
committed clear error by denying him a credit for acceptance of
responsibility due to his post-indictment criminal conduct, Jordan
asserts that cases upholding comparable rulings typically reflect
a nexus between the conduct underlying the offense of conviction
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and the post-indictment criminal conduct. It follows, his thesis
runs, that there must be a "significant connection" between the
indicted conduct and the post-indictment conduct, which requirement
can be satisfied only if the latter conduct is a "significant
continuation" of the former conduct. Appellant's Br. at 10-12.
This gloss misreads the law in this area. In the first
place, the commentary to section 3E1.1 belies Jordan’s suggestion
that district courts are barred from considering post-indictment
criminal conduct absent a significant connection to the offense of
conviction. That commentary furnishes a non-exclusive compendium
of factors that sentencing courts may consider in assessing a
defendant's asserted acceptance of responsibility. This list
includes the defendant's "voluntary termination or withdrawal from
criminal conduct or associations." USSG §3E1.1 cmt. 1(b). The
plain meaning of this language extends to all criminal conduct, not
merely to criminal conduct that is of the same type as, or even
related to, the offense of conviction.
In the second place, our case law reinforces this
interpretation. For example, in United States v. McLaughlin, 378
F.3d 35, 38 (1st Cir. 2004), we invited consideration of whether a
defendant had "voluntarily ceased all participation in criminal
activity" (emphasis supplied). So too United States v. O'Neil, 936
F.2d 599, 601 (1st Cir. 1991), in which then-Chief Judge Breyer
explained that a district court "could reasonably conclude that the
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[defendant's] later conduct (such as his use of marijuana in
violation of bail conditions explicitly forbidding drug use) showed
that [he] lacked 'authentic remorse'" and, thus, bore upon his
acceptance of responsibility with respect to a charge of breaking
into a post office and stealing mail.
The heavy weight of authority in other circuits is to the
same effect.2 In United States v. Mara, 523 F.3d 1036, 1038 (9th
Cir. 2008), the Ninth Circuit recently wrote, "[t]hat a defendant's
continuing criminal conduct is different in nature, character, or
degree from the offense of conviction does not undermine the fact
that it is inconsistent with acceptance of responsibility." See
also United States v. Prince, 204 F.3d 1021, 1023-24 (10th Cir.
2000) (defendant charged with bank robbery denied acceptance-of-
responsibility credit after stabbing fellow inmate during period of
presentencing detention); United States v. Ceccarani, 98 F.3d 126,
130-31 (3d Cir. 1996) (defendant charged with firearms offense
denied acceptance-of-responsibility credit after testing positive
for drug use); United States v. Pace, 17 F.3d 341, 343 (11th Cir.
2
To be sure, the Sixth Circuit has articulated a narrower
rule. See United States v. Morrison, 983 F.2d 730, 735 (6th Cir.
1993). That court apparently allows consideration only of
"related" crimes in this context. This is a minority view, and we
do not adhere to it. Moreover, the criminal conduct in this case
— drunken driving — involves substance abuse. The district court
determined that substance abuse had played a part in Jordan's
involvement in narcotics trafficking. To that extent, then, the
post-indictment conduct was related to the offense of conviction.
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1994) (defendant charged with tax fraud denied acceptance-of-
responsibility credit after testing positive for drugs).
That ends this aspect of the matter. Criminal conduct,
whatever its nature, is a powerful indicium of a lack of
contrition. Thus, we hold that a district court, in determining
the propriety vel non of an acceptance-of-responsibility credit,
may consider a defendant's commission of any post-indictment
criminal conduct, whether or not it bears a significant connection
to, or constitutes a significant continuation of, the offense of
conviction. In other words, no particular nexus is required.
We turn next to the purely factual question of whether
the district court clearly erred in refusing to allow Jordan a
discount for acceptance of responsibility. We think not.
In this instance, the court concluded that Jordan's
drunken driving offense, coupled with his self-interested
prevarication about the extent of his imbibing, showed that he had
not accepted responsibility in any authentic sense. On the record
before us, that conclusion seems eminently reasonable. Jordan's
extravagant consumption of alcohol, as well as his cavalier
decision to drive while intoxicated, provided an adequate predicate
for a finding that he had not voluntarily ceased all criminal
activity and, thus, had not genuinely accepted responsibility. See
McLaughlin, 378 F.3d at 38.
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Jordan's decision to consume intoxicants, troubling in
itself, has even more bite because he blamed his involvement in the
drug-trafficking conspiracy on an escalating addiction to alcohol
and drugs. By getting drunk, he displayed indifference to the root
cause of his original problem. We have recognized before, and
today reaffirm, that such a "high degree of insensitivity" calls
into legitimate question the sincerity of a defendant's professed
desire to mend his ways. United States v. Saxena, 229 F.3d 1, 10
(1st Cir. 2000). We hold, therefore, that it was not clearly
erroneous for the district court to deny a reduction for acceptance
of responsibility on that basis.
Equally unavailing is Jordan's argument that, even if the
sentencing court properly viewed the drunken driving offense as
part of the mix, it struck the wrong balance between that conduct
and Jordan's significant rehabilitative efforts. We acknowledge
both that recovery from an addiction can have its ups and downs and
that the sentencing court had discretion to discount a single
adverse incident in light of an otherwise steadfast commitment to
recovery. But this is a quintessential judgment call, and we
cannot say, under all the circumstances, that the court clearly
erred in striking the balance differently (and, thus, denying a
downward adjustment for acceptance of responsibility).
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We need go no further.3 For the reasons elucidated
above, we reject Jordan's claim of sentencing error.
Affirmed.
3
Jordan has made a halfhearted argument that the district
court committed clear error by finding that his blood alcohol level
belied his claim of having had only two drinks on the night of the
drunken driving incident. Because that argument has not been
developed in any meaningful way, we deem it abandoned. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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