United States v. Hargrove

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 06-4018
KEITH A. HARGROVE,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Henry E. Hudson, District Judge.
(CR-05-168)

Argued: October 27, 2006

Decided: February 23, 2007

Before WILKINS, Chief Judge, and WIDENER and
MOTZ, Circuit Judges.

Affirmed in part and vacated and remanded in part by published opin-
ion. Judge Motz wrote the opinion, in which Judge Widener joined.
Chief Judge Wilkins wrote a separate opinion concurring in part and
dissenting in part.

COUNSEL

ARGUED: Mary Elizabeth Maguire, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Rich-
mond, Virginia, for Appellant. Michael S. Day, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
2 UNITED STATES v. HARGROVE
ON BRIEF: Michael S. Nachmanoff, Acting Federal Public
Defender, Richmond, Virginia, for Appellant. Chuck Rosenberg,
United States Attorney, Peter S. Duffey, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Rich-
mond, Virginia, for Appellee.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Keith Hargrove pleaded guilty to three drug counts and was then
tried and convicted of possession of a firearm in furtherance of drug
trafficking in violation of 18 U.S.C. § 924(c) (2000). In calculating
his guidelines sentence, the district court denied Hargrove a two-level
reduction in offense level for the drug counts for acceptance of
responsibility. Hargrove appeals, asserting that he was entitled to the
reduction.1 Although the guidelines are no longer mandatory, United
States v. Booker, 543 U.S. 220 (2005), sentencing courts must still
calculate the correct guidelines range in order to fashion a reasonable
sentence. See United States v. Moreland, 437 F.3d 424, 432 (4th Cir.
2006). When calculating the guidelines range in this case, the district
court erred in believing that it had no legal authority to grant the
reduction with respect to the drug offenses after Hargrove went to
trial on the 924(c) firearm charge. As explained within, although the
guidelines certainly do not require a court to grant Hargrove the
reduction, they do permit it. Accordingly, we vacate his sentence and
remand for resentencing consistent with this opinion.

I.

On December 11, 2004, Richmond police officers Allen, Hewlett,
1
Hargrove also challenges the sufficiency of the evidence supporting
his conviction for violation of 18 U.S.C. § 924(c) (2000). Given the
physical evidence and testimony presented at his trial, however, a ratio-
nal trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. See United States v. Lomax, 293 F.3d 701,
705 (4th Cir. 2002). We therefore affirm the conviction.
 UNITED STATES v. HARGROVE 3
and Lambert, riding in a marked police car in a high-crime area,
observed Hargrove and another individual on the sidewalk, with their
backs to the police car. As the car got closer, Hargrove’s companion
began to run. The police turned on a spotlight, and Officer Allen
observed Hargrove pull a gun from his waistband and drop it on the
ground. Officer Lambert saw Hargrove grab an object, and Officer
Hewlett saw Hargrove’s hand in motion. The officers tackled Har-
grove and watched him release a bag of crack cocaine. The officers
recovered two magazines for a pistol from Hargrove’s jacket, but no
bullets that would fit the .357 revolver were found on the ground.

On April 11, 2005, Alcohol, Tobacco and Firearms (ATF) Agent
Oakley arrested Hargrove on the basis of a federal indictment charg-
ing him with the events of December 11, 2004. At the time of this
arrest, Hargrove possessed crack cocaine packaged for distribution,
but he did not have a firearm. Hargrove admitted to Agent Oakley
that he had possessed crack cocaine on December 11, 2004, but
denied knowledge of the .357 revolver that the police recovered from
the ground. When Agent Oakley told Hargrove that he believed his
fingerprints would be found on the revolver, Hargrove replied, "I’m
pretty sure my prints ain’t on it." In fact, none of Hargrove’s finger-
prints were found on the revolver.

A federal grand jury filed a seven count superseding indictment
against Hargrove charging him with: (1) possession with intent to dis-
tribute crack cocaine, in violation of 21 U.S.C. § 841 (2000); (2) pos-
session of cocaine base, in violation of 21 U.S.C. § 844 (2000); (3)
possession of a firearm in furtherance of a drug trafficking crime, in
violation of 18 U.S.C. § 924(c)(2000); (4) possession of a firearm and
ammunition by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1)(2000); (5) possession of ammunition, in violation of 18
U.S.C. § 922(g)(1); (6) possession with intent to distribute cocaine
base, in violation of 21 U.S.C. § 841; and (7) possession of cocaine
base, in violation of 21 U.S.C. § 844. The first four counts arose from
the events of December 11, 2004; the last three from those on the date
of arrest, April 11, 2005. Hargrove entered pleas of guilty to counts
one, five, and six, and in exchange the Government agreed to dismiss
counts two, four, and seven. Hargrove went forward with a jury trial
on count three, possession of a firearm in furtherance of a drug traf-
4 UNITED STATES v. HARGROVE
ficking crime. After a one-day trial, the jury returned a verdict of
guilty.

At sentencing, Hargrove requested that the district court grant him
a two-point reduction for acceptance of responsibility pursuant to
U.S.S.G. § 3E1.1 on the drug counts for which he had entered pleas
of guilty. In calculating the guidelines range, the district court held
that because Hargrove went to trial on the 924(c) gun count, the court
had no legal authority to grant the § 3E1.1 reduction for acceptance
of responsibility on the drug offenses. Accordingly, the district court
refused to consider a guidelines reduction for acceptance of responsi-
bility and sentenced Hargrove to 175 months imprisonment and a
term of three years of supervised release on each of the counts to run
concurrently. Hargrove appeals.

If the district court had recognized that it had the legal authority to
grant Hargrove the reduction and had, in exercising that authority,
denied the reduction, we would review its factual determination for
clear error. See, e.g., United States v. Kise, 369 F.3d 766, 771 (4th
Cir. 2004). Because, however, the court believed it had no legal
authority to grant Hargrove the reduction, we review this legal con-
clusion de novo. Cf. United States v. Hall, 977 F.2d 861, 863 (4th Cir.
1992) (holding, pre-Booker, that although a district court’s refusal to
grant a discretionary departure from the guidelines range was "not
reviewable on appeal," its "refusal to depart" because of a "perceived
lack of legal authority to do so" is subject to review de novo).

II.

Hargrove argues that proceeding to trial on the 924(c) charge
should not automatically preclude him from obtaining the reduction
in his guidelines sentence for acceptance of responsibility, and further
contends that he is, in fact, entitled to the reduction. We consider
these claims in turn.

A.

In certain limited situations, for example when a statute requires a
consecutive minimum sentence for an offense, a district court cannot
 UNITED STATES v. HARGROVE 5
reduce a defendant’s sentence for acceptance of responsibility. See,
e.g., United States v. Davis, 380 F.3d 183, 195 (4th Cir. 2004). How-
ever, even prior to Booker, we have repeatedly reiterated that in most
cases district courts are uniquely qualified to evaluate whether to
grant or deny a sentence reduction for acceptance of responsibility.
See, e.g., Elliott v. United States, 332 F.3d 753, 766 (4th Cir. 2003);
United States v. Castner, 50 F.3d 1267, 1279 (4th Cir. 1995).

Our case law properly follows from the guidelines themselves. Sec-
tion 3E1.1 of the guidelines provides that "[i]f the defendant clearly
demonstrates acceptance of responsibility for his offense, decrease the
offense level by 2 levels." U.S.S.G. § 3E1.1 (2005). Hargrove argues
that in his case, the "offense" to which § 3E1.1 applies consists of the
grouped drug counts to which he pleaded guilty, because the remain-
ing charge — the 924(c) gun charge — carries a statutory minimum
sentence and is thus not a guidelines offense and can never provide
the basis for a § 3E1.1 reduction. Brief of Appellant at 15. He con-
tends that he accepted responsibility for the drug offenses and so
should be considered for receipt of the benefit of § 3E1.1 in calculat-
ing the guidelines sentence for these counts. Hargrove’s argument
finds strong support in the guidelines.

First, the commentary to § 3E1.1 carefully distinguishes between
the "offense of conviction" and "relevant conduct." An "appropriate
consideration[ ]" for the sentencing judge in evaluating a defendant’s
demonstration of acceptance of responsibility is his "truthfully admit-
ting the conduct comprising the offense(s) of conviction, and truth-
fully admitting or not falsely denying any additional relevant conduct
for which the defendant is accountable under § 1B1.3 (Relevant Con-
duct)." U.S.S.G. § 3E1.1 cmt. n.1(a) (emphasis added). Elsewhere, the
commentary states that "[e]ntry of a plea of guilty prior to the com-
mencement of trial combined with truthfully admitting the conduct
comprising the offense of conviction, and truthfully admitting or not
falsely denying any additional relevant conduct . . . will constitute
significant evidence of acceptance of responsibility . . . ." Id. at cmt.
n.3 (emphasis added). Thus, for the purposes of § 3E1.1, "offense" is
not synonymous with "relevant conduct."2
2
U.S.S.G. § 1B1.1 cmt. n.1(H) (2005) defines "Offense" as "the
offense of conviction and all relevant conduct under §1B1.3 (Relevant
6 UNITED STATES v. HARGROVE
Moreover, the guidelines instruct sentencing courts initially to
group similar counts together into a single "offense." See U.S.S.G.
§ 3D1.1 introductory cmt. (2005). Counts with statutory minimum
sentences that are to be imposed consecutively — including those
under § 924(c) — are specifically "[e]xclude[d]" from grouping.
U.S.S.G. § 3D1.1 cmt. n.1. Pursuant to the procedure prescribed by
the guidelines, once a court groups appropriate counts and determines
the initial combined offense level for the grouped counts, it then
decides whether any adjustments to the offense level — including that
for acceptance of responsibility — should be made for the grouped
offense. U.S.S.G. § 3D1.1 cmt. background. It is only after that deter-
mination and the subsequent calculation of the sentence flowing from
the (possibly adjusted) offense level of the grouped counts that the
punishment for counts with a consecutively imposed statutory mini-
mum is added to the sentence; a court cannot award an acceptance of
responsibility adjustment for such consecutive mandatory minimum
sentences. Chapter Five of the guidelines confirms this approach, pro-
viding that when a statute imposes a consecutive mandatory minimum
sentence, "the term of years to be imposed consecutively is the mini-
mum required by the statute of conviction and is independent of the
guideline sentence on any other count." U.S.S.G. § 5G1.2 cmt. n.2(A)
(2005) (emphasis added).

In sum, when § 3E1.1 instructs that "[i]f the defendant clearly dem-
onstrates acceptance of responsibility for his offense, decrease the
offense level by 2 levels," the "offense" to which it refers comprises
the counts that are grouped together and treated as "a single offense
for purposes of the guidelines." U.S.S.G. § 3D1.1 intro cmt. As a
result, under the terms of U.S.S.G. § 3E1.1, the defendant must only
accept responsibility for the grouped guidelines counts in order to be
eligible for the reduction in offense level for that particular "offense."3
(Text continued on page 8)

Conduct) unless a different meaning is specified or is otherwise clear
from the context." In this case, the commentary to § 3E1.1 specifies a
different meaning, one that is also clear from the context of how the
guideline is applied.
3
Relying on United States v. Ginn, 87 F.3d 367, 371 (9th Cir. 1996),
the dissent contends that the plural "offense(s) of conviction" in the com-
mentary to § 3E1.1 indicates that to receive the reduction Hargrove must
 UNITED STATES v. HARGROVE 7
accept responsibility for all of the crimes of which he has been convicted
— including the § 924 offense. Post at 16. But Ginn relies on the plural,
"offense[s]" of conviction, simply to explain its holding that a defendant
must accept responsibility for all guideline offenses of conviction, i.e. all
grouped offenses factored into his combined offense level, because oth-
erwise the defendant "would receive a benefit on his offense level" for
all of those offenses "even though he accepted responsibility for only
one." Ginn, 87 F.3d at 371. Unlike Ginn, Hargrove did accept responsi-
bility for all of his guideline offenses (those factored into his combined
offense level) and went to trial only on the 924(c) offense, which is not
factored into the combined offense guideline level. Because the manda-
tory minimum sentence for the 924(c) offense must be imposed consecu-
tively after the calculation of the guideline sentence based on the
adjusted combined offense level, the acceptance of responsibility reduc-
tion has no effect on Hargrove’s sentence for the 924(c) count. In sum,
unlike Ginn, Hargrove could never receive a benefit for the count that he
factually contested.
The dissent’s contention that the structure of the guidelines supports
its position is flawed for similar reasons. This structure does indicate that
all guidelines offenses be grouped before considering a § 3E1.1 reduc-
tion; but the structure does not even suggest this with respect to
the 924(c) offense. Indeed, given that the 924(c) count is never grouped
or factored into the combined offense level, the structure of the guide-
lines — consideration of a § 3E1.1 reduction after the calculation of the
combined offense level but before the addition of the mandatory consec-
utive minimum sentence for 924(c) counts — supports our holding, not
the dissent’s position.
The dissent’s argument that our holding is contrary to the purposes of
§ 3E1.1 — to "sentenc[e] more leniently defendants who evidence con-
trition and cooperate with law enforcement authorities" — is equally
unpersuasive. See post at 17 (quoting United States v. Frazier, 971 F.2d
1076, 1084 (4th Cir. 1992)). Because Hargrove has indisputably evi-
denced contrition and cooperated with law enforcement authorities with
respect to his drug offenses, it is consistent with the purpose of § 3E1.1
that he could receive a more lenient sentence for these offenses. The dis-
sent’s view that "a defendant who factually contests his guilt" as to
a 924(c) crime "has not accepted responsibility in the global sense
required by the guidelines," post at 18, may well be a view shared by the
sentencing court on remand, but it need not be so. And the guidelines
8 UNITED STATES v. HARGROVE
Hargrove has done that in this case. He has pleaded guilty and did
not go to trial on the narcotics counts grouped under the guidelines,
which together constitute the only "offense" for purposes of § 3E1.1.
Thus, Hargrove has accepted responsibility for his § 3E1.1 offense
and so is eligible for the reduction. To be sure, he did proceed to trial
on the 924(c) count,4 but that does not render him ineligible for the
reduction because it is not subject to grouping with the guidelines
offenses, is not factored into determining the guidelines offense level,
and cannot be the basis for an acceptance of responsibility reduction.

instruct that it is not an appellate judge but "[t]he sentencing judge" who
evaluates "a defendant’s acceptance of responsibility." See U.S.S.G.
§ 3E1.1 cmt. n.5.
The dissent’s final argument — that our holding fails because we have
not "articulate[d]" the Commission’s possible purpose for creating the
scheme that it did, post at 19 — is even less persuasive. Given the clarity
of the language in the guidelines and commentary, fuller judicial explo-
ration of the Commission’s purpose is unnecessary and perhaps problem-
atic. Cf. United States v. Am. Trucking Ass’ns, 310 U.S. 534, 543 (1940)
("There is, of course, no more persuasive evidence of the purpose of a
statute than the words by which the legislature undertook to give expres-
sion to its wishes."). However, as we have noted in text, Hargrove posits
an entirely reasonable explanation for the different treatment of 924(c)-
type offenses. Consistent with the purpose of § 3E1.1 — to grant sen-
tencing judges discretion to impose more lenient sentences on defendants
who have accepted responsibility for their conduct — the Commission
may have chosen to treat 924(c)-type offenses differently because they
carry consecutive mandatory minimum sentences for which a defendant
can never obtain a § 3E1.1 reduction. In other words, the Commission
may well have concluded that any other scheme would be unfair —
denying a defendant all possibility of a § 3E1.1 reduction, even though
prior to trial he fully accepted responsibility for his guidelines offenses,
simply because he refused to plead guilty to an offense for which accep-
tance of responsibility could never reduce his sentence.
4
Although at trial Hargrove contested the "possession" and "further-
ance" elements of the 924(c) count, he did not deny drug activity and so
did not deny any factual elements of his guidelines "offense." Thus,
application note 2 to § 3E1.1, which applies to the "offense" under the
guidelines (here the drug counts), does not govern his case. U.S.S.G.
§ 3E1.1 cmt. n.2. It is for this reason that the long list of cases cited by
the dissent, post at 20, is inapposite here.
 UNITED STATES v. HARGROVE 9
Because Hargrove accepted responsibility for all of the drug counts
— the counts grouped together under the guidelines that constitute the
"offense" for the purposes of § 3E1.1 — he was eligible for the reduc-
tion. The district court thus erred in concluding that it did not have
the legal authority to grant Hargrove the reduction.

B.

Hargrove, however, further contends that he is "entitled" to award
of the reduction and that we must remand the case with "explicit
instructions" to the district court to grant the reduction. Brief of
Appellant at 16, 20. We cannot agree. Although Hargrove pleaded
guilty to the grouped drug "offense," he has not truthfully admitted
his relevant conduct, namely the 924(c) count, and so is certainly not
"entitled" to the reduction.

"In determining whether a defendant qualifies" for an acceptance
of responsibility reduction in his guidelines sentence, an "appropriate
consideration[ ]" for the sentencing judge is whether the defendant
has "truthfully admitt[ed] or not falsely den[ied] any additional rele-
vant conduct for which the defendant is accountable under § 1B1.3
(Relevant Conduct)." U.S.S.G. § 3E1.1 cmt. n.1. The commentary to
U.S.S.G. § 3E1.1 explains that "[a] defendant may remain silent in
respect to relevant conduct . . . without affecting his ability to obtain
a reduction under this subsection," but "a defendant who falsely
denies, or frivolously contests, relevant conduct that the court deter-
mines to be true has acted in a manner inconsistent with acceptance
of responsibility." Id. at cmt. n.1(a).

Section 1B1.3 defines as "[r]elevant [c]onduct" "all acts and omis-
sions committed . . . by the defendant . . . that occurred during the
commission of the offense of conviction, in preparation for that
offense, or in the course of attempting to avoid detection or responsi-
bility for that offense. . . ." U.S.S.G. § 1B1.3(a)(1) (2005). By con-
victing Hargrove on the 924(c) count, the jury found that Hargrove
possessed a gun "in furtherance" of a drug trafficking crime, and as
such, the 924(c) conviction constitutes "relevant conduct" for the pur-
poses of § 3E1.1. Hargrove has contested his responsibility for the
relevant conduct, and so the sentencing judge could conclude that the
relevant conduct should "affect[ ]" Hargrove’s "ability to obtain a
10 UNITED STATES v. HARGROVE
reduction under this subsection." U.S.S.G. § 3E1.1 cmt. n.1(a). That
is, the court may well conclude that by going to trial on the 924(c)
count, Hargrove "has acted in a manner inconsistent with acceptance
of responsibility."5 Id.

We note however that this is just one, albeit an important, "appro-
priate consideration[ ]" for the sentencing judge to consider in exer-
cising his discretion to determine whether to grant the reduction.
Other "appropriate considerations" include voluntary termination or
withdrawal from criminal conduct, voluntary surrender to authorities
and assistance to authorities in recovery of the fruits and instrumental-
ities of the offense, and the timeliness of the defendant’s conduct in
manifesting the acceptance of responsibility. Id. at cmt. n.1(b), (d),
(e), (h).

In sum, although the sentencing court has the legal authority to
grant Hargrove the reduction, the court is certainly not required to do
so. On remand, it should consider Hargrove’s relevant conduct and
other appropriate § 3E1.1 considerations in determining whether to
grant the reduction.

III.

Our holding here — that in cases like those at hand, the sentencing
judge has the power to grant a reduction for acceptance of responsi-
bility in determining the guidelines offense level, but that the defen-
dant is not entitled to such a reduction — accords with our precedent
and that of our sister circuits that have considered this issue.

The district court erred in believing that United States v. Gordon,
895 F.2d 932 (4th Cir. 1990), barred it from awarding any reduction
in this case. If Gordon had so held it would be contrary to, rather than
entirely consistent with, our well-established precedent, noted above,
5
But the sentencing court need not necessarily so conclude. The guide-
lines commentary states that "[a] defendant may remain silent in respect
to relevant conduct . . . without affecting his ability to obtain a reduction
under this subsection." U.S.S.G. § 3E1.1 cmt. n.1(a). Although Hargrove
proceeded to trial on the 924(c) count, he did not testify at trial and so
has "remain[ed] silent" about his relevant conduct.
 UNITED STATES v. HARGROVE 11
that we defer to sentencing judges because they are in a particularly
appropriate position to evaluate whether to grant a reduction for
acceptance of responsibility. In fact, in Gordon itself, we carefully
explained why district courts are afforded this broad authority to
determine whether an acceptance of responsibility reduction is appro-
priate — because "[t]he sentencing judge is in a unique position to
carefully examine the particular circumstances of each case." Gordon,
895 F.2d at 937 (internal quotation marks omitted).

As Hargrove notes, Gordon involved a very different situation than
that presented here. There the defendant attempted to gain the reduc-
tion by accepting responsibility for one offense — possession of
cocaine — while continuing to deny responsibility for another
grouped offense — possession of cocaine with intent to distribute.
895 F.2d at 934. Furthermore, in Gordon the defendant did not even
accept responsibility for the lesser included offense until after he had
gone to trial and been convicted of both offenses. These facts contrast
sharply with those at hand in which Hargrove seeks the reduction
because prior to trial he pleaded guilty and accepted responsibility for
the offenses grouped under the guidelines and only went to trial on
the 924(c) offense, which could not be grouped and for which a court
could not award him the reduction. In sum, while Hargrove accepted
responsibility for the grouped guidelines counts prior to any convic-
tion, Gordon did not accept responsibility for any counts prior to con-
viction, and even after trial and conviction still refused to accept
responsibility for the more serious of the two counts.

Moreover, even given these facts, the district court in Gordon did
not doubt that it had the power or legal authority to grant an accep-
tance of responsibility reduction. The court expressly recognized that
Gordon was not "automatically denied" a two-level reduction because
he went to trial, but concluded that Gordon had not demonstrated
acceptance of responsibility meriting the reduction in his case. Id. at
937 (quoting the district court). Similarly, although we agreed with
the district court "that Gordon had done nothing to indicate his accep-
tance of responsibility," we did not suggest that the district court
lacked the power to grant the reduction. Id. Rather, we affirmed
because "[t]he district court did not clearly err in denying" the reduc-
tion. Id.
12 UNITED STATES v. HARGROVE
In Gordon we recognized, as the district court had, that in limited
situations when a defendant does not seek to challenge issues that
relate to his factual guilt a sentencing court may grant the reduction
even if a defendant goes to trial on a guidelines offense. But we
rejected, id. at 936, the First Circuit’s view that a defendant need only
plead guilty to some of the counts to require that the district court
award the two-point reduction. See United States v. Perez-Franco,
873 F.2d 455, 458-459, 464 (1st Cir. 1989) (rejecting the district
court’s refusal to award the reduction when the defendant did not
plead guilty or accept responsibility for some counts and remanding
with the directive that defendant "shall be entitled to the two-point
reduction" if he accepted responsibility for the count to which he
pleaded guilty).

Instead, we looked to cases from other circuits that had held that
appellate courts should be particularly deferential to the factual find-
ings of sentencing judges as to whether defendants had accepted
responsibility. See United States v. Moskowitz, 888 F.2d 223, 227 (2d
Cir. 1989) (finding "no basis for disturbing the district court’s deter-
mination that [the defendant] was not entitled to a two level reduc-
tion" (internal quotation marks omitted)); United States v. Tellez, 882
F.2d 141, 143 (5th Cir. 1989) (stating that the "determination by the
sentencing judge is entitled to great deference"). Deferring to the dis-
trict court’s factual determination in Gordon, we explained that "[w]e
believe the approach taken by the Second and Fifth Circuits is correct
and hold that in order for section 3E1.1 of the guidelines to apply,"
— that is, to ever entitle a defendant to a reduction — "a defendant
must first accept responsibility for all of his criminal conduct." Gor-
don, 895 F.2d at 936. Although the language of the guidelines has
changed since we issued Gordon in 1990,6 the rule in Gordon — that
6
The guidelines then stated that the offense level should be reduced if
a defendant accepted responsibility "for his criminal conduct," U.S.S.G.
§ 3E1.1(a) (1990) (emphasis added), and the commentary provided that
"truthful admission of involvement in the offense and related conduct"
constituted significant evidence of acceptance of responsibility. Id. at
cmt. n.3 (emphasis added). However, under the current guidelines and
commentary, as explained earlier, it is clear that a defendant need not
affirmatively accept responsibility for all criminal conduct, but only the
guidelines offense of conviction, to be eligible for the reduction; failure
to accept responsibility for relevant conduct may weigh heavily against
award of the reduction but it does not render a defendant ineligible for
it.
 UNITED STATES v. HARGROVE 13
only if a defendant accepts responsibility "for all of his criminal con-
duct" (now his guidelines offense of conviction) could a defendant
ever be entitled to an acceptance of responsibility reduction —
remains the law.

In sum, Gordon does not hold that a defendant must plead guilty
to all criminal conduct before a sentencing court may exercise its dis-
cretion to grant a reduction for acceptance of responsibility. Rather,
Gordon holds that we will defer to the factual determination of the
district court about whether a defendant has accepted responsibility.
Therefore, Gordon does not bar a sentencing court from awarding a
reduction in a case like that at issue here.

Moreover, although none of our prior precedent involves a case
like Hargrove’s — in which the defendant pleaded guilty to the
offenses grouped under the guidelines, but went to trial just on a non-
grouped charge specifically excluded from guidelines grouping for
which a court cannot grant the acceptance of responsibility reduction
— two of our sister circuits have recently considered similar cases.
Both have concluded, as we do, that the guidelines permit a sentenc-
ing court to grant a § 3E1.1 reduction in these circumstances.

In United States v. Williams, 344 F.3d 365, 380 (3d Cir. 2003), the
Third Circuit reviewed a sentencing judge’s grant of the § 3E1.1
reduction to a defendant who pleaded guilty to bank robbery but went
to trial and was convicted of a 924(c) offense. Even more recently,
in United States v. Wattree, 431 F.3d 618, 622 (8th Cir. 2005), the
Eighth Circuit reviewed a sentencing judge’s grant of a § 3E1.1
reduction to a defendant who pleaded guilty to grouped narcotics
offenses but went to trial and was convicted of a related 924(c)
offense. In both cases, the Government advocated, as it does here, an
"‘all or nothing’ approach," i.e. that the defendant is eligible to "re-
ceive a reduction . . . only by pleading guilty to all offenses of which
the defendant is convicted." Wattree, 431 F.3d at 621-22; see also
Williams, 344 F.3d at 381. Both courts firmly rejected that view for
the same reason that we do — "[a]s a matter of law, the guidelines
do not mandate an ‘all or nothing’ approach." Wattree, 431 F.3d at
622.7 The Eighth Circuit then followed the Third in holding that
7
In contrast, as the Eighth Circuit recognized and numerous courts
have held, the guidelines do mandate this "all or nothing" approach when
14 UNITED STATES v. HARGROVE
"[w]here a defendant pleads guilty to all counts that are grouped for
sentencing, contesting guilt only on non-grouped offenses, the guide-
lines do permit a two-level acceptance-of-responsibility reduction,
based on the totality of the circumstances." Id. at 622-23.

As our sister circuits have recognized, a sentencing court may, but
of course need not, grant the reduction in a case like Hargrove’s.8 It
should only do so if, based on all relevant § 3E1.1 considerations —
e.g., a defendant’s acceptance of responsibility for relevant conduct,
the timeliness of his plea to the guidelines offenses, his voluntary ter-
mination or withdrawal from criminal conduct, his assistance to
authorities — the defendant exhibits sufficient acceptance of respon-
sibility. See United States v. Nale, 101 F.3d 1000, 1005 (4th Cir.
1996) (stating that to receive a reduction for acceptance of responsi-
bility, "the defendant must prove by a preponderance of the evidence
that he has clearly recognized and affirmatively accepted personal
responsibility for his criminal conduct"). The Williams court con-
cluded that the sentencing court had properly granted the reduction;
the Wattree court concluded that it had not. But in each case, the
appellate court unequivocally held, as we do, that the sentencing court
had the legal authority to grant the reduction. Because in this case the
sentencing court did not believe that it had this authority, we must
vacate Hargrove’s sentence and remand for resentencing.9

a defendant pleads guilty to only some of the grouped counts and goes
to trial on others. See Wattree, 431 F.3d at 622 (distinguishing, on this
basis, "[t]he cases cited by the government"). For in that situation, as we
have explained, the defendant will not have accepted responsibility for
all of the counts that constitute the "offense of conviction." See U.S.S.G.
§ 3E1.1 cmt. n.1(a).
8
Although it is not entirely clear, the Third Circuit view may be that
a district court will always be justified in granting a reduction if it
chooses to do so. Like the Eighth Circuit, we disagree with this
approach, which we do not believe the guidelines support. See Wattree,
431 F.3d at 622-23. As explained within, we also disagree with the Third
Circuit’s suggestion that a 924(c) offense may not constitute conduct
"relevant" to guidelines offenses.
9
The Government has not suggested that if we hold, as we have, that
the guidelines do not require that Hargrove be denied the reduction, we
 UNITED STATES v. HARGROVE 15
IV.

For the foregoing reasons, we affirm Hargrove’s conviction, but
vacate his sentence and remand for resentencing consistent with this
opinion.

AFFIRMED IN PART AND
VACATED AND REMANDED IN PART

WILKINS, Chief Judge, concurring in part and dissenting in part:

I concur in the majority’s holding that the evidence was sufficient
to support Hargrove’s § 924(c) conviction. However, because I would
affirm the sentence imposed, I respectfully dissent in part.

Hargrove’s only argument on appeal regarding his sentence is that
he was entitled to an acceptance of responsibility reduction in his
offense level. More specifically, he contends that the district court
erroneously concluded that, in determining whether to grant the
reduction, it could consider the fact that Hargrove proceeded to trial
and contested the facts underlying his § 924(c) offense. Because I
believe the district court properly considered this fact and based its
denial of the reduction on it, I would affirm.

I.

In interpreting a guideline, ordinary rules of statutory construction
apply. See United States v. Stokes, 347 F.3d 103, 105 (4th Cir. 2003).
These rules require us to give the guideline its plain meaning, as
determined by examination of its "language, structure, and purpose."
United States v. Horton, 321 F.3d 476, 479 (4th Cir. 2003) (internal

should apply harmless error analysis. Even had the Government so
argued we could not agree. Because the sentencing judge must consider
the various § 3E1.1 appropriate considerations to determine whether Har-
grove should receive the reduction, the Government at this point could
not possibly meet its burden of showing that the error in failing to con-
sider Hargrove for the reduction did not affect his substantial rights. See
United States v. Rodriguez, 433 F.3d 411, 416 (4th Cir. 2006).
16 UNITED STATES v. HARGROVE
quotation marks omitted). We must also examine the commentary
accompanying the guideline, which "is authoritative unless it violates
the Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline." Stinson v. United States,
508 U.S. 36, 38 (1993).

The guidelines provide a two-level offense-level reduction "[i]f the
defendant clearly demonstrates acceptance of responsibility for his
offense." United States Sentencing Guidelines Manual § 3E1.1(a)
(2005). The commentary to § 3E1.1 lists a nonexhaustive set of fac-
tors for the district court to consider in deciding whether to grant a
reduction, the first of which is whether the defendant "truthfully
admitt[ed] the conduct comprising the offense(s) of conviction, and
truthfully admitt[ed] or [did] not falsely deny[ ] any additional rele-
vant conduct for which the defendant [was] accountable." U.S.S.G.
§ 3E1.1, comment. (n.1(a)). The central question in this appeal is
whether "the offense(s) of conviction" encompasses an offense with
a statutory minimum sentence that must be imposed consecutively ("a
§ 924(c)-type offense"). I believe that this language does encompass
such an offense.

First, the language of the guideline and commentary is plain. Sim-
ply stated, the § 924(c) offense was an offense of which Hargrove
was convicted and for which the district court was required to sen-
tence him; it thus constituted an "offense of conviction" as those
words are ordinarily used. See United States v. Wilson, 896 F.2d 856,
858 n.3 (4th Cir. 1990) (interpreting undefined guideline term to have
its "ordinary meaning"). Had the Sentencing Commission intended
"offense(s) of conviction" to refer only to some offenses of conviction
and not to all, one would certainly expect that the Commission would
have said as much. See United States v. Ginn, 87 F.3d 367, 371 (9th
Cir. 1996) (explaining that the Commission’s use of the plural "offen-
se(s)" "implies that a defendant must accept responsibility for all
crimes of which he or she is convicted before the defendant is eligible
for an adjustment under section 3E1.1").

Second, the structure of the guidelines is consistent with the plain
meaning of the language and commentary. Section 3E1.1 is found in
the guidelines following the instructions for arriving at a single
offense level by "grouping" related offenses. See U.S.S.G. § 1B1.1(d),
 UNITED STATES v. HARGROVE 17
(e) (providing that an adjustment for acceptance of responsibility is
applied after grouping). This placement demonstrates that the Com-
mission actually intended "the offense(s) of conviction" to refer to all
"offenses of conviction"—as one would expect from the language
employed—rather than a subset thereof. That is so because had the
Commission concluded that a defendant could receive a reduction for
accepting responsibility for some but not all of his offenses of convic-
tion, it would have required that acceptance of responsibility be deter-
mined for each offense or group of offenses individually before a
single offense level for multiple offenses is calculated. Put another
way, considering that the Commission did not adopt the notion that
§ 3E1.1 determinations would be offense- or group-specific, as
obstruction of justice determinations are, for example, see U.S.S.G.
§ 1B1.1(c), (d) (providing that adjustments from Parts A, B, and C of
Chapter Three are applied prior to grouping); U.S.S.G. § 3C1.1 (pro-
viding for offense-level enhancement for obstruction of justice), there
is no reason why it would have excluded a defendant’s contest of the
facts underlying a § 924(c) offense from a § 3E1.1 determination.

Third, the purposes of § 3E1.1 are also consistent with the plain
language of the guideline and commentary. A central purpose of
§ 3E1.1 is to encourage defendants to plead guilty, thereby saving the
government from having to expend valuable resources proving its
case. See United States v. Frazier, 971 F.2d 1076, 1084 (4th Cir.
1992) (holding that "[t]he acceptance of responsibility reduction
essentially codifies the judicial practice of sentencing more leniently
defendants who evidence contrition and cooperate with law enforce-
ment authorities"). As the Eleventh Circuit has explained,

When a defendant indicted on multiple counts goes to trial
on any of those counts, the systemic costs of trial are not
obviated although they may be reduced to some extent. In
the same vein, a defendant who is unwilling to accept
responsibility for some of the charges against him has not
really "come clean" and faced up to the full measure of his
criminal culpability.

United States v. Thomas, 242 F.3d 1028, 1034 (11th Cir. 2001); see
U.S.S.G. § 3E1.1, comment. (n.2) ("Th[e § 3E1.1] adjustment is not
intended to apply to a defendant who puts the government to its bur-
18 UNITED STATES v. HARGROVE
den of proof at trial by denying the essential factual elements of guilt,
is convicted, and only then admits guilt and expresses remorse.").
Similarly, a defendant who factually contests his guilt on some of his
offenses of conviction has not accepted responsibility in the global
sense required by the guidelines and therefore should not remain eli-
gible to receive a § 3E1.1 reduction.

A.

In contravention to the language, structure, and purpose of § 3E1.1,
its commentary, and the guidelines as a whole, the majority concludes
that the phrase "offense(s) of conviction" in the commentary to
§ 3E1.1 does not encompass § 924(c)-type offenses. The majority
bases its conclusion primarily on the fact that a determination regard-
ing whether a defendant is entitled to an acceptance of responsibility
reduction is made before the guideline range is calculated and thus
before the sentence for the § 924(c)-type offense is added.1 See ante,
at 6. This reasoning is misplaced, however. The sequence to which
the majority refers tells us only that conduct underlying non-§ 924(c)-
type offenses will not affect the length of the consecutive sentence
imposed for a § 924(c)-type offense. It bears not at all on the question
of whether the Commission intended that a defendant must accept
responsibility for all of his offenses of conviction to obtain a reduc-
tion or whether something less is required.

As I have explained, the critical point we should draw from the
sequence of the acceptance of responsibility determination is that the
Commission determined that a reduction for acceptance of responsi-
bility is not applied until the district court has determined a single
offense level for all offenses of conviction. The majority fails to satis-
factorily explain why the Commission would exclude a defendant’s
contest of the facts underlying a § 924(c) offense from a § 3E1.1
determination when it eschewed the notion that § 3E1.1 determina-
tions would be offense- or group-specific. Stated another way, the
1
The majority also claims support from the "clarity" of the language
of the guidelines and commentary. Ante, at 6-8 n.3. But, as I have
explained, the notion that this language provides any support for the
majority’s interpretation—let alone, clear support—is plainly incorrect.
See supra, at 16-17.
 UNITED STATES v. HARGROVE 19
majority fails to persuasively articulate why the Commission would
decide that a defendant’s factual contest of one group of offenses dis-
qualifies him from receiving a reduction regarding an unrelated group
of offenses, but that his factual contest of a § 924(c)-type offense
would not similarly disqualify him.2 The simple answer, in my view,
is that the Commission would not make that decision. Either it would
have made acceptance of responsibility offense- or group-specific, or
it would have required that a defendant demonstrate responsibility for
all of his offenses of conviction, as the guideline and commentary lan-
guage indicates that it did.

The majority apparently also concludes that because the guidelines
treat grouped offenses as a single "offense," groups of offenses are the
"offense(s)" referred to in the commentary to § 3E1.1. See ante, at 6.
I do not find this reasoning persuasive. Although the guideline com-
mentary provides that groups of offenses "are treated as constituting
a single offense for purposes of the guidelines," U.S.S.G. Ch. 3, Pt.
D, intro. comment. (emphasis added), that certainly does not mean
that subsequent guidelines refer to these groups as "offenses." If the
commission had meant "groups" in § 3E1.1, instead of "offense(s),"
there is no reason it would not have said so.

For all these reasons, I believe the district court properly consid-
ered Hargrove’s choice to proceed to trial and factually contest his
§ 924(c) charge in denying his request for an acceptance of responsi-
bility reduction.3
2
The majority suggests that the Commission may have concluded that
it would be "unfair" to deny a § 3E1.1 reduction for conduct underlying
an offense that carries with it a sentence that will not be affected by any
§ 3E1.1 reduction. Ante, at 6-8 n.3. But surely there is nothing "unfair"
about requiring a defendant to accept responsibility for the conduct
underlying all of his offenses of conviction before he can become eligi-
ble for a § 3E1.1 reduction.
3
The majority cites United States v. Wattree, 431 F.3d 618, 622 (8th
Cir. 2005), and United States v. Williams, 344 F.3d 365, 380 (3rd Cir.
2003), as supporting its holding that "offense(s) of conviction" in this
context does not include § 924(c)-type offenses. While the majority is
correct that these decisions adopt the same rule that it does, they provide
no more support for their interpretation than the majority does here.
20 UNITED STATES v. HARGROVE
B.

I also believe that the district court properly concluded that plead-
ing not guilty and factually contesting at least one of his offenses of
conviction at trial disqualified Hargrove from receiving the reduction.
See United States v. Sims, 428 F.3d 945, 961 (10th Cir. 2005) (hold-
ing that a defendant disqualifies himself from receiving an acceptance
of responsibility reduction by exercising his right to trial and contest-
ing his factual guilt); United States v. Ragsdale, 426 F.3d 765, 781-
82 (5th Cir. 2005) (same); United States v. Gorsuch, 404 F.3d 543,
546 (1st Cir. 2005); United States v. Forrest, 402 F.3d 678, 688-89
(6th Cir. 2005) (same); United States v. Yirkovsky, 338 F.3d 936, 941
(8th Cir. 2003) (same); United States v. Hernandez, 330 F.3d 964,
984-85 (7th Cir. 2003) (same); United States v. Cox, 299 F.3d 143,
149 (2d Cir. 2002) (same); cf. United States v. Gordon, 895 F.2d 932,
936 (4th Cir. 1990) ("hold[ing] that in order for section 3E1.1 of the
guidelines to apply, a defendant must first accept responsibility for all
of his criminal conduct"). Although the guideline commentary lists
the truthful admission of the conduct comprising the offenses of con-
viction as only one factor to be considered in determining whether to
grant an acceptance of responsibility reduction, it also clearly states
that proceeding to trial and contesting factual guilt is inconsistent with
accepting responsibility for one’s offenses:

This adjustment is not intended to apply to a defendant who
puts the government to its burden of proof at trial by deny-
ing the essential factual elements of guilt, is convicted, and
only then admits guilt and expresses remorse. Conviction by
trial, however, does not automatically preclude a defendant
from consideration for such a reduction. In rare situations a
defendant may clearly demonstrate an acceptance of respon-
sibility for his criminal conduct even though he exercises his
constitutional right to a trial. This may occur, for example,
where a defendant goes to trial to assert and preserve issues
that do not relate to factual guilt (e.g., to make a constitu-
tional challenge to a statute or a challenge to the applicabil-
ity of a statute to his conduct). In each such instance,
however, a determination that a defendant has accepted
responsibility will be based primarily upon pre-trial state-
ments and conduct.
 UNITED STATES v. HARGROVE 21
U.S.S.G. § 3E1.1, comment. (n.2). Applying the interpretive maxim
expressio unius est exclusio alterius, I conclude that the example
given here, in which the defendant proceeds to trial to preserve issues
not relating to factual guilt, demonstrates that a defendant is not enti-
tled to a reduction when he has proceeded to trial to contest factual
guilt. Thus, I would hold that the district court properly concluded
that Hargrove disqualified himself from receiving a § 3E1.1 reduction
by contesting the facts underlying his § 924(c) offense. Because the
majority holds otherwise, I respectfully dissent in part.