United States v. Paulette Hammick, A/K/A Rosslyn Forrester, A/K/A Carolyn A. James

BAUER, Circuit Judge,

dissenting.

I agree with the majority opinion insofar as it states that Hammick may remain silent concerning the source of the funds in her possession without affecting her eligibility for an acceptance of responsibility reduction. But I believe the same, or nearly the same, rationale applies to her refusal to discuss the means of travel to Wisconsin and the source of credit cards and other documents. I believe the reasoning of United States v. Austin as cited in the majority opinion, is equally applicable to the facts of this case.

It is true that the issue is not as clearly defined as that involving the source of funds. At first blush, the district judge’s request that she explain how she was able to carry out her crimes appears to require no more than a “candid and full unraveling” with respect to the offense of conviction.” See Reyes, 9 F.3d at 279; Taylor, 937 F.2d at 680-81.1 Moreover, Hammick’s invocation of her Fifth Amendment right not to incriminate herself rings somewhat hollow, particularly in light of her reliance on United States v. McKinney, 15 F.3d 849 (9th Cir.1994), in arguing that she should not be required to divulge information that , “might assist the authorities in incriminating others,” rather than herself. (Appellant’s Br. at 10.) On balance, however, I believe that the new version of § 3E1.1 allows Hammick to maintain her silence concerning these aspects of her conduct without compromising her ability to receive a two-level reduction for acceptance of responsibility. As the Second Circuit observed in Austin, Application Note 1(a) is categorical in allowing a defendant to remain silent with respect to relevant conduct outside the scope of the offense of conviction, whether or not the defendant’s silence would also be protected by the Fifth Amendment. 17 F.3d at 31-32; see also United States v. Johns, 27 F.3d 31, 34 (2d Cir.1994) (Sentencing Guidelines may provide broader protection than the Constitution). Also, as pointed out by the Second and Ninth Circuits, the focus of § 3E1.1 is on whether the defendant has truthfully admitted the full extent of the conduct which comprises the offense of conviction, not whether she has assisted the authorities in prosecuting *602others involved in the crime. See Austin, 17 F.3d at 31-32; McKinney, 15 F.3d at 854.2

Moreover, cases such as Taylor and Reyes, which hold that the defendant must give a full and candid explanation of the conduct underlying the offense of conviction in order to be eligible for a § 3E1.1 reduction, are distinguishable from the present case in a crucial respect: in both Taylor and Reyes, the defendants lied about their conduct, giving an implausible account of their crimes. See Reyes, 9 F.3d at 281; Taylor, 937 F.2d at 679-80. Lying does, of course, generally preclude a reduction for acceptance of responsibility. See Rosalez-Cortez, 19 F.3d at 1219 (defendant denied the extent of his role in cocaine conspiracy); United States v. Corbin, 998 F.2d 1377, 1391, 1394 (7th Cir.1993) (defendant made false exculpatory statements regarding his offense), cert. denied, - U.S. -, 114 S.Ct. 1124, 127 L.Ed.2d 432 (1994); White, 993 F.2d at 150-51 (defendant vigorously denied the government’s statement of relevant conduct).3 By contrast, Hammick has admitted all the facts and circumstances alleged by the government concerning her offense of conviction, and has consistently maintained her right to remain silent as to how she arrived in Wisconsin and how she acquired the fraudulent credit cards. And, like the defendant in Austin, Hammick is not “indisputably safe from prosecution” for the conduct which the government has asked her to reveal. See Austin, 17 F.3d at 32. Most importantly, the district judge’s remarks at sentencing imply that he considered these aspects of Ham-mick’s criminal conduct to be “relevant conduct,” rather than conduct within the scope of the charges to which she pleaded guilty. (Sentencing Tr. at 5-6.) Under the new version of § 3E1.1, her refusal to divulge “relevant conduct beyond the offense of con-vietion” may not be taken into consideration in determining her eligibility for an acceptance of responsibility reduction.

Because the district court based its denial of a § 3E1.1 reduction on Hammick’s refusal to answer questions concerning relevant uncharged conduct beyond the offense to which she pleaded guilty, I believe that her sentence should be vacated, and that her case remanded for resentencing.

. But cf. Austin, 17 F.3d at 30-31 (conduct charged in the indictment, together with the stipulation of facts agreed to by defendant and the government, constitutes the full scope of the conduct comprising the offense of conviction which the defendant must truthfully admit in order to demonstrate acceptance of responsibility).

. As these courts observe, the defendant’s assistance in incriminating others is relevant only to his eligibility for a downward departure for substantial assistance under § 5K1.1, and should not be taken into consideration when determining whether he has accepted full responsibility for his own conduct. See Austin, 17 F.3d at 31-32; McKinney, 15 F.3d at 854.

. See also United States v. Anderson, 15 F.3d 979, 931 (10th Cir.) (Defendant falsely denied relevant conduct), cert. denied, — U.S. —, 114 S.Ct. 1623, 128 L.Ed.2d 348 (1994); United States v. Frierson, 945 F.2d 650, 62-64 (3d Cir.1991) (defendant voluntarily made false statements concerning relevant conduct), cert. denied, — U.S. —, 112 S.Ct. 1515, 117 L.Ed.2d 651 (1992).