United States Court of Appeals,
Eleventh Circuit.
No. 95-4193
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Raymond COE, a/k/a Raymond Robertson, Defendant-Appellant.
March 29, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 94-92-CR-DTKH), Daniel T.K. Hurley,
Judge.
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Raymond Coe appeals his sentence of 267 months for possession
of a firearm by a convicted felon. Coe argues that the trial court
erred in refusing to grant a downward adjustment for acceptance of
responsibility under USSG § 3E1.1 (1994). In reviewing a trial
court's refusal to grant an adjustment, this court reviews
interpretations of the sentencing guidelines de novo, United States
v. Pedersen, 3 F.3d 1468, 1470 (11th Cir.1993), and factual
determinations for clear error, United States v. Kendrick, 22 F.3d
1066, 1068 (11th Cir.1994).
Section 3E1.1 requires a downward adjustment "[i]f the
defendant clearly demonstrates acceptance of responsibility for his
offense." USSG § 3E1.1(a). To determine whether a defendant
qualifies, a sentencing court should consider whether he
"truthfully admitt[ed] or [did] not falsely deny[ ] any additional
relevant conduct for which the defendant is accountable under §
1B1.3 (Relevant Conduct)." USSG § 3E1.1, comment. (n. 1).
Relevant conduct under § 1B1.3 includes
all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused 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 responsibility
for that offense.
USSG § 1B1.3(a)(1). The commentary to § 1B1.3 further explains:
The principles and limits of sentencing accountability under
this guideline are not always the same as the principles and
limits of criminal liability. Under subsection[ ] (a)(1) ...
the focus is on the specific acts and omissions for which the
defendant is to be held accountable in determining the
applicable guideline range, rather than on whether the
defendant is criminally liable for an offense as a principal,
accomplice, or conspirator.
USSG § 1B1.3, comment. (n. 1).
Coe admitted that he used a firearm to commit a robbery,
although he claimed he could not remember whether he had pulled the
weapon's trigger. The government points out that Coe initially
denied that he had held the gun to the victim's head and pulled the
trigger and had brandished the gun at other civilians. The
district court found that Coe did not accept responsibility because
he was not forthright about brandishing the gun and pulling its
trigger.
On appeal, Coe argues that whether he accepted responsibility
for pulling the trigger and brandishing the gun is irrelevant to
the acceptance of responsibility analysis because those actions do
not constitute "relevant conduct" within the meaning of § 1B1.3.
He argues that according to § 1B1.3's heading—"Relevant Conduct
(Factors That Determine the Guideline Range)"—and note 1 of §
1B1.3's commentary, relevant conduct includes only those acts and
omissions that are used to calculate the applicable guideline range
prior to adjustment. However, the broad language of § 1B1.3(a) is
clear: relevant conduct includesall acts that occurred during the
commission of the offense. Moreover, note 1 must be read in its
entirety and in light of the breadth of § 1B1.3(a). In context it
becomes apparent that note 1 is not limiting, but merely explains
that relevant conduct encompasses more than those acts directly
relevant to criminal liability.
In this case, Coe brandished a gun and pulled its trigger
during the offense for which he was convicted. Those acts are
relevant conduct for which Coe is accountable, and therefore, a
court may consider them in assessing whether Coe accepted
responsibility for his offense. Because the court correctly
interpreted the sentencing guidelines, and its factual
determination that Coe had not been forthright about pulling the
trigger and brandishing the gun is not clearly erroneous, we affirm
Coe's sentence.
AFFIRMED.