United States v. Keith A. Hargrove

WILKINS, Chief Judge,

concurring in part and dissenting in part:

I concur in the majority’s holding that the evidence was sufficient to support Har-grove’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 ón 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 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, 113 S.Ct. 1913, 123 L.Ed.2d 598 (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 § 3El.l(a) (2005). The commentary to § 3E1.1 lists a nonexhaustive set of factors for the district court to consider in deciding whether to grant a reduction, the first of which is *206whether the defendant “truthfully admitted] the conduct comprising the offense(s) of conviction, and truthfully admitted] or [did] not falsely deny[] any additional relevant conduct for which the defendant [was] accountable.” U.S.S.G, § 3E1.1, comment. (n.l(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. Simply stated, the § 924(c) offense was an offense of which Hargrove was convicted and for which the district court was required to sentence 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 “offense(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. § lBl.l(d), (e) (providing that an adjustment for acceptance of responsibility is applied after grouping). This placement demonstrates that the Commission 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 conviction, it would have required that acceptance of responsibility be determined 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. § lBl.l(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 (providing 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 § 3E 1.1 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 enforcement 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, *207a 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 burden 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 eligible 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 regarding 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 199. 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 reduction 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 responsibility is not applied until the district court has determined a single offense level for all offenses of conviction. The majority fails to satisfactorily 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 determinations would be offense- or group-specific. Stated another way, the majority fails to persuasively articulate why the Commission would decide that a defendant’s factual contest of one group of offenses disqualifies 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 responsibili*208ty for all of his offenses of conviction, as the guideline and commentary language 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 199. I do not find this reasoning persuasive. Although the guideline commentary 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 considered Hargrove’s choice to proceed to trial and factually contest his § 924(c) charge in denying his request for an acceptance of responsibility reduction.3

B.

I also believe that the district court properly concluded that pleading 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) (holding that a defendant disqualifies himself from receiving an acceptance of responsibility reduction by exercising his right to trial and contesting 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) (“holding] 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 conviction 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 denying 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 responsibility 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 constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In *209each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct.

U.S.S.G. § 3E1.1, comment, (n.2). Applying the interpretive maxim expressio uni-us 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 entitled 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.

. The majority also claims support from the "clarity” of the language of the guidelines and commentary. Ante, at 200-01- 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 205-06.

. 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 200-01 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 eligible for a § 3E1.1 reduction.

. 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.