PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 03-4589
ROBERT NELSON MAY,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-00-165-MU)
Argued: January 23, 2004
Decided: March 4, 2004
Before WILLIAMS, TRAXLER, and KING, Circuit Judges.
Vacated and remanded by published opinion. Judge King wrote the
opinion, in which Judge Williams and Judge Traxler joined.
COUNSEL
ARGUED: R. Alexander Acosta, Assistant Attorney General,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C.; Robert James Conrad, Jr., United States Attorney, Charlotte,
North Carolina, for Appellant. Noell Peter Tin, Charlotte, North Caro-
lina, for Appellee. ON BRIEF: Dennis J. Dimsey, Angela M. Miller,
Civil Rights Division, Appellate Section, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Jennifer Marie
2 UNITED STATES v. MAY
Hoefling, Assistant United States Attorney, Charlotte, North Carolina,
for Appellant.
OPINION
KING, Circuit Judge:
After being convicted of two offenses relating to his involvement
in burning a cross for the purpose of racial intimidation, defendant
Robert Nelson May was sentenced in the Western District of North
Carolina to one month in prison, with credit for time served, plus two
years of supervised release, with five months of home detention.
United States v. May, No. 3:00cr165-1-Mu (W.D.N.C. July 3, 2003).
The Government has appealed, maintaining that the court erred in
granting May a downward departure for victim conduct and aberrant
behavior, and in awarding him a sentence adjustment for acceptance
of responsibility. Because the downward departure was not warranted
and the court clearly erred in awarding the sentence adjustment, we
vacate and remand.
I.
A.
In April 1999, Anthony Sanders, an African-American man, moved
into the home of Jacquelette Paige Williams, a Caucasian woman, in
Gastonia, North Carolina. Relations between Sanders and his neigh-
bors were poor from the start. On April 11, 1999, Charles Danny Car-
penter, who lived next door to the interracial couple, and defendant
May, who lived about a half mile away, added the words "ESPE-
CIALLY NIGGERS" to a "NO TRESPASSING" sign located on Car-
penter’s property and facing Sanders and Williams’s home.
On May 11, 1999, while Sanders was washing his car in his drive-
way, May walked to the property line, pointed a handgun at Sanders,
and said, "Hey, nigger, I got something for you." In response, Sanders
said that he also had something for May.
UNITED STATES v. MAY 3
Later that day, May and Carpenter constructed a wooden cross and
erected it at the edge of Carpenter’s property, approximately twenty
feet from Sanders and Williams’s home. That evening, May and Car-
penter set the cross afire and sat near it in lounge chairs, drinking beer
and holding firearms, watching the cross burn. At some point that
evening, Williams called the police to report shots being fired from
behind Carpenter’s house. When officers arrived and saw the burning
cross, May and Carpenter told them that they were burning the cross
to "let the nigger know he wasn’t welcomed here." The officers then
spoke with Williams, who appeared nervous, and they noted that the
burning cross was visible from her yard.
B.
As a result of these events, May and Carpenter were indicted on
September 11, 2000, by a grand jury in the Western District of North
Carolina, and charged with three criminal offenses. In Count 1 of the
Indictment, the two men were charged with the civil rights offense of
conspiring to threaten and intimidate Sanders and Williams because
of race, or because of association with a person of another race, in
order to interfere with their right to occupy a dwelling without threats
or interference, in contravention of 18 U.S.C. § 241.1 The Indictment
alleged that May and Carpenter committed four overt acts in further-
ance of their conspiracy, that is: (1) posting the "NO TRESPASSING
ESPECIALLY NIGGERS" sign for a month; (2) pointing a handgun
at Sanders and telling him he had something for him; (3) erecting a
cross on Carpenter’s property approximately twenty feet from the vic-
tims’ home; and (4) setting the cross on fire and watching it burn
while possessing firearms.
1
Section 241 of Title 18, enacted following the Civil War to enforce
the Civil Rights Act of 1866, provides, in pertinent part:
If two or more persons conspire to injure, oppress, threaten, or
intimidate any person . . . in the free exercise or enjoyment of
any right or privilege secured to him by the Constitution or laws
of the United States, or because of his having so exercised the
same . . . —
They shall be fined . . . or imprisoned . . . or both . . . .
18 U.S.C. § 241.
4 UNITED STATES v. MAY
In Count 2 of the Indictment, May and Carpenter were charged
with violating 42 U.S.C. § 3631(b)(1), in that they, by force, threat,
and through the use of fire (i.e., burning the cross) intimidated and
interfered with Sanders and Williams because they occupied a dwell-
ing in Gaston County.2 Count 3 of the Indictment, which was later
dismissed, alleged that May and Carpenter had also violated 18
U.S.C. § 844(h)(1).
May was arrested on September 15, 2000, and released on bond.
He subsequently violated the conditions of his release on three occa-
sions by the use of illegal drugs. He first tested positive for marijuana
on January 4, 2001. Initially, May adamantly denied having used mar-
ijuana on that occasion, but he later signed a statement admitting that
he had. May again tested positive for marijuana on October 4, 2001,
again denied drug use, and later admitted to it. He was then placed
in an intensive outpatient drug treatment program.
Four days before his scheduled trial, on January 18, 2002, May
pleaded guilty to Counts 1 and 2 of the Indictment, and the Govern-
ment agreed to dismiss Count 3. On February 21, 2002, May tested
positive for cocaine. When confronted, he again denied drug use,
claiming that he had tested positive because he had "recently been
with a female who had cocaine on her tongue and that they had been
kissing and that she had performed oral sex on him." Due to his use
of illegal drugs, May’s bond was revoked on May 28, 2002, and he
served seventy-three days in custody in an inpatient drug treatment
program. He was released from custody on July 30, 2002.
At May’s June 17, 2003, sentencing proceedings, the district court
accepted the plea agreement between the parties and imposed its sen-
tence on May. In so doing, the court first considered whether May’s
sentence should be reduced for acceptance of responsibility pursuant
to U.S. Sentencing Guidelines Manual (U.S.S.G.) section 3E1.1.
According to his presentence report (the "PSR"), May had a Criminal
2
Section 3631(b)(1) of Title 42 provides, in pertinent part, "[w]hoever
. . . by force or threat of force willfully injures, intimidates or interferes
with, or attempts to injure, intimidate or interfere with — any person
because he is or has been . . . [occupying a dwelling] . . . shall be fined
. . . or imprisoned . . . or both. . . ." 42 U.S.C. § 3631(b)(1).
UNITED STATES v. MAY 5
History Category of I and an Offense Level of 15, resulting in a sen-
tencing range of eighteen to twenty-four months. The probation offi-
cer recommended that May be denied the adjustment for acceptance
of responsibility because he had violated the terms of his bond multi-
ple times and, during his presentence interview, had minimized his
role in the offenses and denied key facts.3 The court disagreed with
this recommendation, however, and awarded May the acceptance of
responsibility adjustment, reducing his Offense Level to 13.
The court then heard argument and testimony regarding May’s
motion for a downward departure based on (1) victim conduct, see
U.S.S.G. § 5K2.10, (2) aberrant behavior, id. § 5K2.20, and (3)
diminished capacity, id. § 5K2.13. In support of his motion regarding
victim conduct, May presented the testimony of a private investigator
hired by his lawyer. The investigator testified that she had inter-
viewed people who lived near Sanders, and they blamed Sanders for
the deterioration of the neighborhood. The court then heard testimony
from Bobby Fewell, an African-American male who had worked with
May in the postal service for more than ten years. Fewell testified that
May had never had problems with his coworkers at the post office,
the majority of whom were African-American.
In ruling on May’s motion for a downward departure based on vic-
tim conduct, the court observed:
I agree with the government that Ms. Williams didn’t do
anything to provide a provocation but that the persistence of
animus from this Sanders guy to the rest of the people in the
neighborhood, the total persistence of his hostility to every-
body, the motions of the way he’s acted, it seems to me are
extremely persistent.
3
After pleading guilty to Counts 1 and 2 of the Indictment, May sub-
mitted a statement to the probation officer concerning his offenses. In
that statement, he purported to accept responsibility for his crimes, but
he claimed that Sanders was responsible for thefts in the neighborhood,
had fired a gun in the neighborhood, was a convicted felon, and had
threatened Carpenter. May also asserted that he had taken the medication
Xanax earlier on the day of the cross burning, which had mixed with the
alcohol he had been drinking and affected his behavior that night.
6 UNITED STATES v. MAY
He has a terrible record. He does, in fact, present — he’s the
kind of fellow that if he was here the government would be
arguing, and I would be agreeing, needs to be incarcerated
to protect the public wheel [sic].
So I think that there is relevant conduct by him that substan-
tially contributed to the danger presented and that there is a
victim conduct downward departure available.
With respect to the aberrant behavior basis for a departure, the court
simply stated, "[t]he evidence of aberrant behavior I think, however,
is clearly met under the language of the guidelines and I’m finding
he has aberrant behavior." The court then granted May a three-level
downward departure for victim conduct and aberrant behavior, leav-
ing him with an Offense Level of 10.4
Finally, the court sentenced May to a month in custody (crediting
him with time served for his bond violations), plus two years of
supervised release, with five months of home detention. The Govern-
ment has appealed, and we possess jurisdiction pursuant to 18 U.S.C.
§ 3742(b) and 28 U.S.C. § 1291.
II.
Prior to April 30, 2003, we were obligated to review a district
court’s decision to depart from the Guidelines for abuse of discretion.
On that date, a new statute, the Prosecutorial Remedies and Other
Tools to end the Exploitation of Children Today Act of 2003, Pub. L.
No. 108-21, 117 Stat. 650 (the "PROTECT Act") altered our standard
of review, amending 18 U.S.C. § 3742(e) to require de novo review
of downward departures in certain circumstances. For example, the
PROTECT Act provides that, when determining whether the sentence
"departs from the applicable guideline range based on a factor that —
is not justified by the facts of the case;" "the court of appeals shall
review de novo the district court’s application of the guidelines to the
4
The court denied May’s motion for a downward departure based on
diminished capacity, finding no nexus between May’s Post-traumatic
Stress Disorder and the events in question. May does not challenge the
diminished capacity ruling on appeal.
UNITED STATES v. MAY 7
facts." 18 U.S.C. § 3742(e)(3)(B)(iii), (e). We therefore review de
novo the court’s application of the victim conduct and aberrant behav-
ior Guidelines to the facts of this case.5
On the other hand, we review for clear error a district court’s deci-
sion to adjust a defendant’s sentence for acceptance of responsibility.
United States v. Ruhe, 191 F.3d 376, 388 (4th Cir. 1999). As the
Supreme Court has explained, "[a] finding is ‘clearly erroneous’ when
although there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction that a mis-
take has been committed." United States v. U.S. Gypsum Co., 333
U.S. 364, 395 (1948).
III.
A.
We turn first to the question of whether the victim conduct basis
for May’s downward departure was justified by the facts of this case.
Section 5K2.10 of the Guidelines provides, "[i]f the victim’s wrongful
conduct contributed significantly to provoking the offense behavior,
the court may reduce the sentence below the guideline range to reflect
the nature and circumstances of the offense." The Guidelines explain
that section 5K2.10 "usually would not be relevant in the context of
non-violent offenses" but that there may be "unusual circumstances in
which substantial victim misconduct would warrant a reduced penalty
5
The PROTECT Act also provides that a court of appeals shall set
aside a sentence when the sentence departs from the applicable Guideline
range and the district court failed to provide a written statement of the
reasons for its departure. 18 U.S.C. § 3742(e)(3)(A), (f)(2)(B). Here, the
court failed to provide such a statement. However, because the parties
have not raised the issue and because we review de novo the application
of the Guidelines to the facts even when the court fails to provide a writ-
ten statement of reasons, see id. § 3742(e), we will proceed to assess
whether the departure granted to May was justified by the facts of this
case. See id. § 3742(e)(3)(B)(iii); see also United States v. Archambault,
344 F.3d 732, 735 n.3 (8th Cir. 2003) (addressing merits of departures
even though district court failed to provide written statement of reasons,
where neither party raised the issue). The materials before us are suffi-
cient for us to make this assessment.
8 UNITED STATES v. MAY
in the case of a non-violent offense." U.S.S.G. § 5K2.10.6 Having
conducted a de novo review of the court’s application of the Guide-
line, we conclude that the circumstances of this case are not so
unusual as to justify a downward departure based on victim conduct.
In support of the court’s decision to depart downward, May relies
on the testimony of his private investigator. At the sentencing hearing,
the investigator testified that neighbors of the victims told her that (1)
Sanders would "gig" them from his car;7 (2) a neighbor had a genera-
tor stolen, and he had never had anything stolen before Sanders
moved into the neighborhood; (3) May’s cousin "ran Sanders off"
from his outbuilding, and Sanders made lurid gestures at him; (4)
Sanders was a dope pusher and a felon and had been caught with con-
cealed weapons; (5) Sanders had discharged a firearm; and (6) the
neighborhood had changed in some unspecified way since Sanders
arrived.
As we have explained, the Guidelines provide that, to support a
downward departure under section 5K2.10, the victim’s conduct
must, in fact, be "wrongful." Id.; United States v. LeRose, 219 F.3d
335, 340 (4th Cir. 2000) (reversing downward departure based on vic-
tim conduct for defendants who operated check kiting scheme
because bank’s failure to act did not constitute wrongful conduct);
United States v. Morin, 80 F.3d 124, 127-28 (4th Cir. 1996) ("The
plain meaning of [section 5K2.10] contemplates that the victim must
actually have done something wrong."). In Morin, we explained that
a mere perception on the part of the defendant that the victim has
committed wrongful conduct will not suffice. Morin, 80 F.3d at 128.
There, we addressed a situation in which the defendant erroneously
believed that the husband of the woman he loved was beating her, and
he hired a hit man to kill the husband. Reversing the downward
6
The Guidelines provide an example of a situation in which a departure
for victim conduct might be proper even when the victim’s conduct pro-
voked a non-violent crime: "an extended course of provocation and
harassment might lead a defendant to steal or destroy property in retalia-
tion." U.S.S.G. § 5K2.10.
7
The term "gig" is not defined in the materials presented to this Court.
At argument, counsel explained that the term refers to extending one’s
middle finger to another.
UNITED STATES v. MAY 9
departure, we observed, "[a]s it appears that [the victim’s] behavior
was imagined rather than real, it cannot be said that he did anything
wrong." Id.
In the circumstances of this case, some of May’s allegations
against Sanders fail to rise to the level of wrongful conduct. First, the
fact that a neighbor had a generator stolen and assumed Sanders was
the thief is not conduct that can, without some proof, be attributed to
Sanders. Similarly, the neighbors’ perception that the neighborhood
had changed in some unspecified way since Sanders moved in not
only smacks of a racist "there goes the neighborhood" mentality but
also defines no wrongful conduct. We are left, then, with May’s alle-
gations of "gigging," trespass onto May’s cousin’s property, past
criminal acts, and discharge of a firearm, as Sanders’s only arguably
wrongful conduct provoking the cross burning.8
The language of the Guideline next requires us to determine
whether the wrongful conduct "contributed significantly to provoking
the offense behavior."9 U.S.S.G. § 5K2.10. In making this determina-
tion, we are to consider the following six factors:
8
May also maintained in his PSR statement that Carpenter had asserted
that Sanders had threatened him and that Carpenter asked May to come
to his house because he was afraid that Sanders would follow up on the
threat. The veracity of this statement is called into question by the fact
that, when the police arrived, May and Carpenter told them that they
were attempting to "let the nigger know he wasn’t welcomed here,"
never mentioning a threat. May explained his behavior the same way to
a newspaper reporter. Furthermore, if May was referring to Sanders’s
"I’ve got something for you, too" comment, it was May who first threat-
ened the unarmed Sanders.
9
We recognize, as May maintains, that he need not prove that his
actions were legally justified. See United States v. Harris, 293 F.3d 863,
872 (5th Cir. 2002); Blankenship v. United States, 159 F.3d 336, 339 (8th
Cir. 1998). At the same time, a showing that the victim’s actions were
a but-for cause of the defendant’s criminal activity is not sufficient. See
United States v. Mussayek, 338 F.3d 245, 255 (3d Cir. 2003); United
States v. Corrado, 304 F.3d 593, 615 (6th Cir. 2002). The standard lies
somewhere in between justification and mere causation: the defendant
must show that the victim’s conduct "contributed significantly to provok-
ing the offense behavior." U.S.S.G. § 5K2.10.
10 UNITED STATES v. MAY
(1) The size and strength of the victim, or other relevant
physical characteristics, in comparison with those of
the defendant.
(2) The persistence of the victim’s conduct and any efforts
by the defendant to prevent confrontation.
(3) The danger reasonably perceived by the defendant,
including the victim’s reputation for violence.
(4) The danger actually presented to the defendant by the
victim.
(5) Any other relevant conduct by the victim that substan-
tially contributed to the danger presented.
(6) The proportionality and reasonableness of the defen-
dant’s response to the victim’s provocation.
Id.
May has presented no evidence regarding the physical characteris-
tics of his victims or himself, nor has he pointed to any efforts he took
to address the neighborhood tensions in a more positive manner.10 As
for factors (3), (4), and (5), there is no evidence that Sanders posed
any danger to May at all. The only evidence that comes close is that
Sanders — unarmed — responded that he "had something for [May]
too" when May threatened him with a firearm. We decline to give
May the benefit of a downward departure for conduct that he himself
provoked. And, even if the hearsay regarding Sanders’s reputation in
the neighborhood as a dope pusher and carrier of a concealed weapon
is accepted, there is no evidence that he was ever violent or that any
violence was directed at May. We conclude, therefore, that Sanders
did not present a danger to May and that May could not reasonably
have perceived that he did.
10
The fact that May and Carpenter were armed (apparently with two
weapons — a handgun and a shotgun or rifle) as they sat beside the burn-
ing cross indicates that they were anticipating confrontation, not attempt-
ing to prevent it.
UNITED STATES v. MAY 11
Finally, we turn, as we are required to do, to the proportionality
and reasonableness of May’s response to the "gigging," the trespass
onto his cousin’s property, the criminal history, and the discharge of
a firearm. See id. § 5K2.10(6); Morin, 80 F.3d at 128 (finding that
"‘concern for the proportionality of the defendant’s response is mani-
fested by the terms of § 5K2.10’") (quoting United States v. Shortt,
919 F.2d 1325, 1328 (8th Cir. 1990)). As the Eighth Circuit held in
Shortt, even highly provocative behavior does not justify a downward
departure if the defendant’s response is disproportionate. The court
explained, "[w]hile the District Court is surely correct that ‘there’s
hardly any greater provocation than to have someone having an affair
with your spouse,’ that is not the end of the matter. The further ques-
tion remains: provocation for what?" Shortt, 919 F.2d at 1328 (inter-
nal citation and alteration omitted) (recognizing wrongfulness of
adultery but finding defendant’s plot to blow up adulterers dispropor-
tionate); see also United States v. Paster, 173 F.3d 206, 212 (3d Cir.
1999) (concluding that fatally stabbing wife was disproportionate to
her revelation of past infidelities); Blankenship v. United States, 159
F.3d 336, 339 (8th Cir. 1999) (finding defendant’s actions not propor-
tional where victim yelled and threatened defendant from outside
defendant’s home but was unarmed, and defendant left through back
door, returned with gun, and shot victim in ensuing struggle).
In these circumstances, cross burning was a disproportionate and
unreasonable response to the victim’s conduct. The Supreme Court
recently recognized the severity of such activity, noting that cross
burning "is a particularly virulent form of intimidation." Virginia v.
Black, 123 S. Ct. 1536, 1549 (2003) (upholding state’s ban on cross
burning). As the Court explained, "the burning cross often serves as
a message of intimidation, designed to inspire in the victim a fear of
bodily harm. Moreover, the history of violence associated with the
Klan shows that the possibility of injury or death is not just hypotheti-
cal." Id. at 1546.
In our view, the victim’s conduct in this case was not sufficient to
provoke a response of this magnitude. First, Sanders’s "gigging" of
his neighbors, though crass, hardly constitutes provocation for a cross
burning.11 A crime of intimidation loaded with a history of racial ter-
11
Although we have proceeded with the analysis, we express some
skepticism regarding whether "gigging" can reasonably be considered
12 UNITED STATES v. MAY
ror is not a proportional response to a gesture — admittedly tasteless
— made daily on the highways at rush hour.12 Sanders’s isolated tres-
pass onto May’s cousin’s property is also insufficient to justify the
downward departure. Perhaps the question would be closer if Sanders
had trespassed onto May’s property, but we decline to reward May for
taking it upon himself to exact vigilante justice in the neighborhood
for wrongs committed against others. See Mussayek, 338 F.3d at 256
(finding conspiracy to commit extortion through use of thugs willing
to break legs and kidnap children not proportional to victim’s swin-
dling of defendant; agreeing with district court that "the redress that
would be appropriate would be a lawsuit, a resort to a report to the
police"). Similarly, even if May had a reasonable basis to believe that
Sanders had a questionable past and was a felon in possession of a
firearm, such wrongful conduct was not directed at May; law enforce-
ment officials are equipped to handle such matters and do not require
self-deputized citizens to act on their own. Again, a call to the police
would have been a reasonable response to identifying a person as a
felon in possession — burning a cross was not.
Finally — and importantly — we recognize that Sanders was not
wrongful conduct. Such gestures are rude, certainly, and perhaps offen-
sive, but a mere breach of social etiquette does not constitute wrongful
conduct. See United States v. Desormeaux, 952 F.2d 182, 187 (8th Cir.
1991) (explaining that, where victim rode around with defendant’s boy-
friend on back of his motorcycle and smirked at defendant, victim’s con-
duct, "though probably a breach of dating etiquette, was not wrongful
within the meaning of this guideline").
In addition, there is nothing inherently wrongful about discharging a
firearm; moreover, Williams called the police the evening of the cross
burning to complain that May was discharging a firearm. And to the
extent that May claims that Sanders’s wrongful conduct consisted of
being a felon in possession of a firearm, such conduct is plainly insuffi-
cient to provoke a cross burning. See infra p. 13.
12
May maintains that the "gigging" was a persistent course of conduct
sufficient to sustain an exception to section 5K2.10’s rule that the provi-
sion generally does not apply to non-violent crimes. He presents no evi-
dence, however, regarding the frequency of this behavior or the number
of times it was directed at May.
UNITED STATES v. MAY 13
the only victim of May’s crimes. Ms. Williams, too, was a victim, and
May does not allege that she provoked him in any way. Harming
innocent victims certainly weighs against a defendant in our propor-
tionality analysis. In light of this discussion, the alleged wrongful
conduct on the part of the victim was insufficient provocation for
burning a cross.13
B.
We next consider whether the facts of this case support a down-
ward departure for aberrant behavior under U.S.S.G. section 5K2.20.
That section provides, inter alia, that "a downward departure may be
warranted in an exceptional case if . . . the defendant committed a sin-
gle criminal occurrence or single criminal transaction that (1) was
committed without significant planning; (2) was of limited duration;
and (3) represents a marked deviation by the defendant from an other-
wise law-abiding life."14 U.S.S.G. § 5K2.20. Under the Guideline,
then, we must first determine whether May’s case is exceptional. See
id. at app. C, amend. 603 ("As a threshold matter, this amendment
provides that the departure is available only in an extraordinary case.").15
13
We note also that May and Carpenter altered the "NO TRESPASS-
ING" sign just days after Sanders moved into the neighborhood, casting
further doubt on May’s contention that his acts of racial intimidation
occurred only after extended provocation by Sanders.
14
Section 5K2.20 prohibits departing downward based on aberrant
behavior when, inter alia, "[t]he defendant discharged a firearm or other-
wise used a firearm or a dangerous weapon." U.S.S.G. § 5K2.20(c)(2).
As the Guidelines explain, "‘Otherwise used’ with reference to a danger-
ous weapon (including a firearm) means that the conduct did not amount
to the discharge of a firearm but was more than brandishing, displaying,
or possessing a firearm or other dangerous weapon." Id. § 1B1.1, cmt.
n.1(I). Because May does not meet the requirements of section 5K2.20,
we need not determine whether his act of pointing the handgun at Sand-
ers constituted "more than brandishing, displaying, or possessing a fire-
arm." Id.
15
Amendment 603 refers to section 5K2.20’s previous requirement that
a case be "extraordinary" in order to warrant a downward departure for
aberrant behavior. Effective April 20, 2003, the section was amended in
a number of ways and now uses the term "exceptional" instead of "ex-
traordinary." Because the amendment was intended to "further restrict[ ]
the availability of departures based on aberrant behavior," U.S.S.G. app.
C, amend. 651, we do not view this amendment as expanding the scope
of coverage.
14 UNITED STATES v. MAY
The Guideline provides that, in determining whether the downward
departure is appropriate, the court may consider "the defendant’s (A)
mental and emotional conditions; (B) employment record; (C) record
of prior good works; (D) motivation for committing the offense; and
(E) efforts to mitigate the effects of the offense." Id. § 5K2.20, cmt.
n.3.
Considering these factors, May’s case is demonstrably unexcep-
tional. The evidence does suggest that May’s mental or emotional
condition is impaired in that he suffers from Post-traumatic Stress
Disorder as a result of his military service during the Vietnam War;
however, there is no indication that this condition contributed to his
criminal activities. As the court found, "there’s no evidence of a
nexus between post-traumatic stress disorder and the events in ques-
tion." And although May presented evidence that he had been gain-
fully employed with the postal service for a number of years and got
along well with his coworkers, such behavior is hardly exceptional.
Similarly, the only evidence May presented that arguably pertains to
his prior good works is a letter and certificate of appreciation recog-
nizing his participation in one of the postal service’s affirmative
action special emphasis programs, the Charlotte Postal Touring Cho-
rale. Even when considered together, singing in a chorale and getting
along with coworkers are insufficient to render May’s case excep-
tional. The next factor, his motivation for committing the offenses,
weighs against May. May admittedly burned the cross to, in his
words, "let the nigger know he wasn’t welcomed here." Far from
exceptional, this motivation likely underlies nearly every incident of
cross burning, and it certainly is not a motivation worthy of a down-
ward departure.16 Finally, May has presented no evidence that he
made efforts to mitigate the effects of his criminal activity. Weighing
these factors both individually and in the aggregate, May’s case is not
16
May contends that his acts were motivated not by racial animus but
by the victim’s conduct. As we have explained in Part III.A, the victim’s
conduct does not warrant a downward departure, and we decline to
revisit the issue in analyzing another Guideline provision. Regardless,
the motivation of racial intimidation is clear in these circumstances, and
it was acknowledged by May when he pleaded guilty.
UNITED STATES v. MAY 15
exceptional, and a downward departure based on aberrant behavior is
not justified.17
C.
Finally, we turn to the court’s decision to decrease May’s offense
level based on acceptance of responsibility. See U.S.S.G. § 3E1.1 ("If
the defendant clearly demonstrates acceptance of responsibility for his
offense, decrease the offense level by 2 levels."). We have previously
explained that, "in order to receive a reduction under § 3E1.1 for
acceptance of responsibility, the defendant must prove by a prepon-
derance of the evidence that he has clearly recognized and affirma-
tively accepted personal responsibility for his criminal conduct."
United States v. Nale, 101 F.3d 1000, 1005 (4th Cir. 1996); see also
United States v. Harris, 882 F.2d 902, 906-07 (4th Cir. 1989) (stating
that "the party seeking application of Guideline § 3E1.1 . . . [has] the
burden of persuading the court that he [is] entitled to it, and that the
proper standard of proof in resolving factual disputes during the sen-
tencing process is the preponderance of evidence standard"). Because
May failed to carry his burden of proving that he accepted responsi-
bility for his crimes, the court clearly erred in granting him a sentence
adjustment for acceptance of responsibility.
At the sentencing hearing, the court found no facts regarding
acceptance of responsibility other than May’s guilty plea, stating sim-
ply, "he gets two points off for acceptance. He pled guilty. All the ele-
ments are there. Everything is there. He gets the two points off." As
we have previously held, however, an adjustment for acceptance of
17
Even if May’s case were deemed exceptional, we are unconvinced
that May’s crimes would meet the requirements of section 5K2.20.
Although the acts he committed likely did not require significant plan-
ning, they were not of particularly limited duration. May asserts that "the
offense lasted one evening at most." On the contrary, May and Carpen-
ter’s altered "NO TRESPASSING" sign remained posted for a full
month. In addition, May committed three drug crimes while on bond, and
he fabricated a ridiculous excuse for how the cocaine ended up in his
system. See supra p. 4. This conduct evidenced not only May’s failure
to lead an otherwise law-abiding life but also a blatant disrespect for the
law.
16 UNITED STATES v. MAY
responsibility does not flow automatically from a guilty plea. United
States v. Apple, 915 F.2d 899, 913 (4th Cir. 1990) ("A defendant who
enters a guilty plea is not entitled to a sentencing reduction as a matter
of right; a guilty plea may provide some evidence of the defendant’s
acceptance of responsibility, but it does not by itself entitle a defen-
dant to the two level reduction." (internal citation omitted)); U.S.S.G.
§ 3E1.1, cmt. n.3 ("A defendant who enters a guilty plea is not enti-
tled to an adjustment under this section as a matter of right."). May’s
guilty pleas alone therefore did not justify the acceptance of responsi-
bility adjustment.
Moreover, the evidence that May failed to accept responsibility
clearly outweighs his pleas of guilty. See id. § 3E1.1, cmt. n.3 (pro-
viding that entry of guilty plea and admitting offense conduct "may
be outweighed by conduct of the defendant that is inconsistent with
such acceptance of responsibility"). First, the application notes to sec-
tion 3E1.1 indicate that a court may consider whether the defendant
has "truthfully admitt[ed] the conduct comprising the offense(s) of
conviction, and truthfully admitt[ed] or not falsely den[ied] any addi-
tional relevant conduct . . . ." Id. § 3E1.1, cmt. n.1(a). Here, the PSR
indicates that May "currently denies most of the key facts in the
offense conduct." In particular, May submitted a written statement to
the probation officer that asserted, "[p]revious to the day of the inci-
dent, the defendant had done nothing to harm or intimidate Sanders
or to harm or intimidate anyone based on their race." This statement
explicitly denies the first overt act of the conspiracy to which May
pleaded guilty; that is, altering the "NO TRESPASSING" sign — a
month before the cross burning — to contain the racially intimidating
message "ESPECIALLY NIGGERS."18 Moreover, May’s objections
18
As a general proposition, overt acts in furtherance of a conspiracy
need not, in and of themselves, constitute criminal behavior. United
States v. Jerkins, 871 F.2d 598, 602-03 (6th Cir. 1989) (citing Braverman
v. United States, 317 U.S. 49, 53 (1942)); Luxenberg v. United States, 45
F.2d 497, 498 (4th Cir. 1930) ("The overt act need not be a criminal act,
nor need it constitute the very crime that is the object of the conspir-
acy."). Nonetheless, a defendant’s denial of the alleged overt acts may be
considered when assessing acceptance of responsibility, as overt acts
constitute relevant conduct under section 1B1.3. U.S.S.G. § 3E1.1, cmt.
n.1(a) (including, as appropriate considerations, "truthfully admitting or
UNITED STATES v. MAY 17
to the presentence report stated that May "denies any involvement in
making or posting [the "NO TRESPASSING"] sign[,] . . . denies ever
approaching Sanders with a gun and threatening him[,] . . . den[ies]
any involvement in constructing the wooden structure being construed
as a cross[, and] was not in possession of a firearm when police con-
tacted him at the scene that evening." By these objections, May denies
nearly all of the overt acts of the § 241 conspiracy of which he was
convicted. According to our precedent, "in order for section 3E1.1 of
the guidelines to apply, a defendant must first accept responsibility
for all of his criminal conduct." United States v. Gordon, 895 F.2d
932, 936 (4th Cir. 1990) (emphasis added). May’s statement to the
probation officer belies his acceptance of responsibility for all of the
conduct to which he pleaded guilty.
In addition, the probation officer correctly concluded that May did
not accept responsibility because he minimized his role in the offense
and attempted to explain away his behavior. In his statement to the
probation officer, May placed the blame squarely on Sanders. He
wrote, "[t]he defendant fully accepts responsibility for his conduct
reflected in Counts One and Two of the Indictment. However, certain
circumstances contributed to the commission of this offense." May
then proceeded to specify the alleged bad qualities and behavior of
the victim Sanders that May believed lessened his own culpability. He
also explained his criminal acts by asserting that the medication he
had taken that night mixed with alcohol and affected his behavior.
Admitting to criminal activity while attempting to justify or explain
it away does not indicate acceptance of responsibility. See Nale, 101
F.3d at 1005 (affirming denial of acceptance of responsibility adjust-
ment where defendant, who carjacked at gunpoint and raped ex-
girlfriend, "characterized his actions as an attempt to reconcile with
his ex-girlfriend and . . . characterized the carjacking as a request for
a ride"). Additionally, May downplayed his criminal offenses, stating
that "he and Carpenter drank alcohol as they sat around a fire they had
not falsely denying any additional relevant conduct for which the defen-
dant is accountable under section 1B1.3 (Relevant Conduct)"); id.
§ 1B1.3(a)(1)(A) (providing that relevant conduct includes "all acts and
omissions committed, aided, abetted, counseled, commanded, induced,
procured, or willfully caused by the defendant").
18 UNITED STATES v. MAY
built." In sum, May’s statement to the probation officer purports to
accept responsibility but immediately proceeds to blame the victim
and explain away his criminal conduct.
Finally, the application notes to U.S.S.G. section 3E1.1 provide
that "the timeliness of the defendant’s conduct in manifesting the
acceptance of responsibility" is a relevant consideration when decid-
ing whether to grant the sentencing adjustment. U.S.S.G. § 3E1.1,
cmt. n.1(h). May pleaded guilty just four days before his trial was to
begin, sixteen months after he was indicted, and only after his co-
defendant Carpenter pleaded guilty. This delay further calls into ques-
tion May’s assertion that he has accepted responsibility for his crimes.
We recognize that the determination of the sentencing judge is
ordinarily entitled to great deference on review. See id. § 3E1.1, cmt.
n.5. In these circumstances, however, where the defendant has denied
much of the offense conduct, shifted the blame to his victim, and
sought to minimize his criminal activity, we are "left with the definite
and firm conviction," U.S. Gypsum Co., 333 U.S. at 395, that the
court erred in adjusting May’s sentence for acceptance of responsibil-
ity.
IV.
Pursuant to the foregoing, we vacate May’s sentence and remand
for such further proceedings as may be appropriate.
VACATED AND REMANDED