United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3433
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Noel Andrew Jackson, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 14, 2011
Filed: July 18, 2011
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Before SMITH, GRUENDER, and BENTON, Circuit Judges.
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PER CURIAM.
Noel Andrew Jackson pleaded guilty to two counts of bank robbery, in
violation of 18 U.S.C. § 2113(a) and (d), and one count of brandishing a firearm
during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The district
court1 sentenced him to 420 months' imprisonment. On appeal, Jackson argues that
the district court procedurally erred at sentencing by denying his request for a two-
level reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a), and
declining to depart from the career-offender Guideline, U.S.S.G. § 4B1.1. We affirm.
1
The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
I. Background
On February 25, 2009, a grand jury indicted Jackson on two counts of bank
robbery, two counts of brandishing a firearm during a crime of violence, and two
counts of being a felon in possession of a firearm. Jackson participated in the armed
robberies of the First Federal Bank in Rogers, Arkansas, in December 2008 and the
Arvest Bank in Springdale, Arkansas, in January 2009.
Jackson initially pleaded not guilty to all six charges in the indictment, and a
trial was scheduled to begin on May 19, 2009. On May 19, before the start of
proceedings, Jackson entered into a plea agreement with the government. Jackson
pleaded guilty to two counts of bank robbery and one count of brandishing a firearm,
and the government agreed to dismiss the remaining counts.
The presentence investigation report (PSR) recommended that Jackson not
receive a two-level reduction for acceptance of responsibility, pursuant to U.S.S.G.
§ 3E1.1(a), explaining:
The defendant entered guilty pleas to Counts One, Two, and Five of the
seven count Indictment on the date his trial was to begin. During his
interview with the Probation Officer for this report, Mr. Jackson
expressed his guilt of the robbery with a firearm of First Federal Bank
(Counts One and Two), stating he knew it was wrong and there was no
excuse for his behavior. He further expressed his apologies to the
victims and anyone else involved. Mr. Jackson denied his guilt of the
Arvest Bank Robbery (Count Five), stating his belief that he could
prevail at trial if properly represented. He indicated that he pled guilty
because his attorney had given up on him and if he represented himself,
he would lose at trial. Jackson concluded by stating that the plea deal
was so good he thought he should take it.
The PSR calculated Jackson's total offense level as 34.
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In detailing Jackson's criminal history, the PSR included, among other
convictions, a 1994 Missouri conviction for second-degree burglary and a 1998
Kentucky conviction for first-degree robbery, when Jackson was 16 and 20 years old,
respectively. Based on these convictions, the PSR determined that Jackson qualified
for career-offender status and a criminal history category of VI, pursuant to U.S.S.G.
§ 4B1.1(a) and (b). As a result, pursuant to § 4B1.1(c)(3), the PSR calculated a
Guidelines range of 360 months' to life imprisonment.
Jackson objected, claiming that he should have received the two-level
reduction for acceptance of responsibility and should not have qualified for career-
offender status. At the sentencing hearing, the government presented testimony from
Michael Hudson, the probation officer who prepared the PSR. Hudson testified that
he based his recommendation against a two-level reduction for acceptance of
responsibility on his interview with Jackson. In that interview, according to Hudson,
Jackson had denied committing the Arvest Bank robbery. On cross-examination,
Jackson's attorney (who was present at the interview) questioned Hudson's
recollection of the interview, but Hudson confirmed that Jackson had denied his guilt
for the Arvest Bank robbery.
The district court overruled both of Jackson's objections. First, the court found
that Jackson satisfied all three requirements for career-offender status under U.S.S.G.
§ 4B1.1(a) because (1) Jackson was over 18 years old at the time he committed the
instant offense; (2) the instant offense was a felony that qualified as a crime of
violence; and (3) his 1994 Missouri burglary conviction and 1998 Kentucky robbery
convictions qualified as crimes of violence. Second, the court found that Jackson
should not be granted a two-level reduction for acceptance of responsibility under
§ 3E1.1(a). The court explained its reasons for doing so, stating:
Based upon what Mr. Hudson has said, and it's not been refuted, I think
that his report in the investigation report as to what happened in his
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conversation with Mr. Jackson, I have no real[] reason to doubt that.
. . . I see no reason to think Mr. Hudson has any motive or reason to
misrepresent anything to the Court. So I accept Mr. Hudson's version as
to what was said.
Moreover, the court found that the timing of Jackson's guilty plea militated against
granting the reduction, stating:
In this case, Mr. Jackson staunchly maintained his not guilty pleas up
until the actual date of trial. We actually had a jury called. The
Government, as far as I know, was locked and loaded, had to call its
witnesses and be prepared for trial, and it was only in the face of the jury
being present that the defendant then cut a deal and made his plea.
The court considered Jackson's last-minute plea deal to be indicative of
something other than genuine acceptance of responsibility. Thus, consistent with the
PSR, the court determined that the applicable advisory Guidelines range was 360
months' to life imprisonment. After hearing testimony from a victim and arguments
by both parties, the court sentenced Jackson to a total of 420 months' imprisonment.
II. Discussion
On appeal, Jackson argues that the district court procedurally erred by denying
his request for a two-level reduction for acceptance of responsibility and declining
to depart from the career-offender Guideline.
A. Acceptance of Responsibility
Jackson first argues that the district court erred in refusing to grant a two-level
reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a). He
contends that the district court must grant the reduction "if a defendant 'clearly
demonstrates' acceptance of responsibility for 'his offense.'" Jackson maintains that
his statements to Hudson show that he fully accepted responsibility and apologized
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for his crimes, including the Arvest Bank robbery. He asserts that his statement about
his belief that he could have succeeded at trial with a better attorney did not show that
he was denying criminal conduct. Moreover, he argues that "a delay in accepting
responsibility should not necessarily result in a denial of the reduction."
The government, in response, avers that the district court did not clearly err in
declining to grant the acceptance of responsibility reduction because Jackson failed
to meet his burden to show he was entitled to the reduction. The government notes
that Jackson, according to Hudson's testimony, maintained his innocence even after
entering his guilty plea. Moreover, he waited until the day of his trial to enter his
guilty plea. Thus, the court had a sufficient basis for finding that Jackson was not
entitled to a reduction for acceptance of responsibility.
"We review a district court's interpretation and application of the Guidelines
de novo and its factual findings regarding enhancements for clear error." United
States v. Canania, 532 F.3d 764, 770 (8th Cir. 2008) (quotation and citation omitted).
Specifically, we review for clear error the district court's denial of a reduction for
acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a). Id. at 772.
"A district court's factual determination of the defendant's entitlement to an
offense level decrease for acceptance of responsibility is entitled to great deference,
and we will reverse it only if it is so clearly erroneous as to be without foundation."
Id. (quotation and citation omitted). In the district court, Jackson bore the burden "to
show that [he] clearly demonstrated acceptance of responsibility." Id. (quotation and
citation omitted). To determine whether a defendant has satisfied his burden,
Application Note 1 to § 3E1.1(a) directs courts to consider, among other things,
whether the defendant "truthfully admitt[ed] the conduct comprising the offense(s)
of conviction" and "the timeliness of the defendant's conduct in manifesting the
acceptance of responsibility." Application Note 3 cautions that a defendant is not
entitled to the reduction "as a matter of right" simply because he enters a guilty plea.
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"The key issue is whether the defendant has shown a recognition and affirmative
responsibility for the offense and sincere remorse." United States v. Wineman, 625
F.3d 536, 539 (8th Cir. 2010) (quotations and citations omitted).
Here, the district court did not clearly err in denying a two-level reduction for
acceptance of responsibility. The evidence showed that Jackson never fully accepted
responsibility for the Arvest Bank robbery. In his interview with Hudson, Jackson
revealed that he entered the plea not because he acknowledged his guilt but because
he lacked confidence in his attorney's trial skills. Although Jackson challenged
Hudson's testimony at the sentencing hearing, the court specifically found Hudson's
testimony credible; this finding "is quintessentially a judgment call and virtually
unassailable on appeal." United States v. Hart, 544 F.3d 911, 916 (8th Cir. 2008)
(quotations and citations omitted). Jackson now attempts to minimize his statements
to Hudson by arguing that he had a "right to maintain his technical innocence." But
regardless of whether Jackson believed he did not commit the Arvest robbery or
merely believed he could win at trial based on a "technicality," his statements
reflected something less than full acceptance of responsibility for the offense.
Moreover, the district court properly considered that he delayed pleading guilty until
the day of his trial, after the government had prepared for trial. Therefore, the district
court did not clearly err in denying Jackson a two-level reduction for acceptance of
responsibility.
B. Downward Departure
Jackson also argues that the district court erred by not departing from the
career-offender Guideline. He contends that a sentencing court has the discretion to
disagree with the Guidelines, especially in an atypical case, such as his, where the
career offender Guideline has overstated his criminal history. Although he
acknowledges that his 1994 Missouri burglary conviction qualified as a crime of
violence, Jackson maintains that the circumstances of that crime—specifically, the
fact that "no one was present during the offense, threatened by Jackson, or placed in
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any danger"—indicate a much less serious crime. Jackson argues that this fact,
combined with Jackson's young age at the time of his 1994 and 1998 convictions,
warranted a departure.
This court has no authority to review a district court's denial of a request for a
downward departure unless the district court "had an unconstitutional motive in
denying his request" or failed to "recognize[] that it had the authority to depart
downward." United States v. Anderson, 570 F.3d 1025, 1034 (8th Cir. 2009). Jackson
has made neither argument on this appeal, and our careful review of the sentencing
record reveals no unconstitutional motive or failure to recognize discretionary
authority on the part of the district court. Thus, we decline to review the district
court's declination to depart downward.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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