[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 95-8120
D. C. Docket No. 1:94-CR-149
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HARRY LEON SMITH, III,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Georgia
(October 31, 1997)
Before HATCHETT, Chief Judge, TJOFLAT,
ANDERSON, EDMONDSON, COX, BIRCH, DUBINA,
BLACK, CARNES, BARKETT, Circuit Judges*, and
HILL**, Senior Circuit Judge.
DUBINA, Circuit Judge:
_____________________________
*Judge Frank M. Hull was appointed after this
case was orally argued, but was an active
member of the court at the time the case was
decided. She has elected not to participate
in the decisional process.
**Senior U.S. Circuit Judge Hill elected to
participate in this decision pursuant to 28
U.S.C. §46(c).
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I.
Appellant Harry Leon Smith, III, (“Smith”)
was indicted by a federal grand jury in the
Northern District of Georgia in a one- count
indictment. The indictment charged Smith with
running a check-kiting scheme in violation of
18 U.S.C. § 1344. Initially, Smith entered a
plea of not guilty to the indictment but later
changed his plea to guilty. The probation
officer recommended in her initial presentence
report (“PSR”) that Smith receive a three-
level reduction in his offense level for
acceptance of responsibility pursuant to
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U.S.S.G. § 3E1.1. After Smith objected to
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§ 3E1.1. Acceptance of Responsibility
(a) If the defendant clearly
demonstrates acceptance of
responsibility for his offense,
decrease the offense level by 2
3
levels.
(b) If the defendant qualifies
for a decrease under subsection
(a), the offense level
determined prior to the
operation of subsection (a) is
level 16 or greater, and the
defendant has assisted
authorities in the investigation
or prosecution of his own
misconduct by taking one or more
of the following steps:
(1) timely providing
complete information to
the government
concerning his own
involvement in the
offense; or
(2) timely notifying
authorities of his
intention to enter a
plea of guilty, thereby
permitting the
government to avoid
preparing for trial and
permitting the court to
allocate its resources
efficiently,
decrease the offense level by 1
additional level.
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several paragraphs of the PSR, the probation
officer withdrew her recommendation for the
reduction. However, at sentencing, Smith
still sought a reduction for acceptance of
responsibility. The district court expressly
found that Smith had not manifested acceptance
of responsibility and denied Smith’s request.
The district court determined that the
base offense level was 15 and sentenced Smith
to 18 months imprisonment, followed by five
years of supervised release.2 The government
then pointed out that the correct offense
level was 17, requiring a sentence in the 24-
30 month range. The district judge admitted
his error and granted a two-level reduction
2
The court also ordered that Smith pay
restitution in the amount of $269,049.40 and
imposed a $50.00 special assessment.
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for acceptance of responsibility so that he
would not be forced to increase the previously
imposed 18 month sentence:
I’ll grant him the two-level decrease
for acceptance of responsibility ....
Because I’ve already imposed the 18
months’ sentence and I hate to go back
and change it and increase it. I don’t
mind reducing it, but I hate to
increase it.
(R3-27-28). The district court’s decision was
not based on reconsideration of its finding
that Smith failed to accept responsibility.
The record clearly demonstrates that this
award was based on the court’s reluctance to
increase Smith’s sentence above the 18 month
term of imprisonment which the court already
had imposed. Thus, Smith received a two-level
reduction that he did not deserve.
Surprisingly, he appealed.
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A panel of this court remanded the case to
the district court. Concerned that the
district court’s decision to deny the §
3E1.1(b) reduction was based on Smith
exercising his right to object to the PSR, the
panel instructed the district court to
consider whether Smith was entitled to an
additional one-level reduction for acceptance
of responsibility under U.S.S.G. § 3E1.1(b).
United States v. Smith, 106 F.3d 350 (11th
Cir. 1997) (as amended). This court then
vacated that decision and ordered rehearing en
banc. United States v. Smith, 112 F.3d 473
(11th Cir. 1997).
II.
The determination of whether a defendant
has adequately manifested acceptance of
responsibility is a flexible, fact sensitive
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inquiry. See Joiner v. United States, 103 F.3d
961, 963 (11th Cir.), cert. denied, 117 S. Ct.
1857 (1997); United States v. Scroggins , 880
F.2d 1204, 1215 (11th Cir. 1989). The panel
held that:
[A] defendant may not be denied a
reduction [in offense level for
acceptance of responsibility] under §
3E1.1 solely for exercising the right
to challenge the legal propriety of his
punishment under the criminal code
and/or sentencing guidelines.... [I]t
is impermissible to consider the
challenge to the legal propriety of a
sentence.
Smith, 106 F.3d at 352. With this language,
the panel opinion went too far. Our case law
permits a district court to deny a defendant
a reduction under § 3E1.1 based on conduct
inconsistent with acceptance of
responsibility, even when that conduct
includes the assertion of a constitutional
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right. See United States v. Jones, 934 F.2d
1199, 1200 (11th Cir. 1991); United States v.
Henry, 883 F.2d 1010, 1011 (11th Cir. 1989).
In addition, frivolous legal challenges could
suggest to the district court that the
defendant has not accepted responsibility for
his conduct. Therefore, we hold that a
district court may consider the nature of such
challenges along with the other circumstances
in the case when determining whether a
defendant should receive a sentence reduction
for acceptance of responsibility.
In the present case, although Smith
referred to his objections to the PSR as
“legal objections based on legal arguments”
(R3-15), the record does not support this
characterization. In fact, Smith, in his
objections to the PSR, contended that he did
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not possess fraudulent intent with respect to
both offense conduct and relevant conduct.
These objections were factual, not legal, and
amounted to a denial of factual guilt.
The panel opinion remanded the case to
the district court to determine whether Smith
was entitled to an additional one-level
reduction. We see no need to remand this case
for resentencing. Smith received a windfall
and clearly suffered no prejudice from the
3
district court’s sentencing error.
Accordingly, we affirm Smith’s sentence.
3
We note from the record in this case
that the government did not appeal. We assume
that is because the government, under the
terms of the plea agreement with Smith, agreed
to recommend a reduction for acceptance of
responsibility. If the government had taken
an appeal, however, we would vacate and remand
Smith’s sentence because, as previously
stated, the district court did not sentence
Smith within the correct guideline range.
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AFFIRMED.
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