United States v. Dozier, Romulus

                        United States Court of Appeals


                     FOR THE DISTRICT OF COLUMBIA CIRCUIT


             Argued April 22, 1998    Decided December 11, 1998 


                                 No. 97-3060


                          United States of America, 

                                  Appellee, 


                                      v.


                               Romulus Dozier, 

                                  Appellant


                Appeal from the United States District Court 

                        for the District of Columbia 

                              (No. 96cr00430-01)


     Jason A. Levine argued the cause for appellant.  With him 
on the briefs was Bruce A. Baird.

     Danny Onorato, Assistant U.S. Attorney, argued the cause 
for appellee.  With him on the briefs were Mary Lou Leary, 
U.S. Attorney at the time the brief was filed, John R. Fisher, 
Elizabeth Trosman, M. Evan Corcoran and Timothy J. Hea-
phy, Assistant U.S. Attorneys.



     Before:  Edwards, Chief Judge, Sentelle and Garland, 
Circuit Judges.

             Opinion for the Court filed by Circuit Judge Garland.

     Garland, Circuit Judge:  A jury convicted Romulus Dozier 
of two weapons charges and acquitted him of three drug-
related charges.  Dozier challenges his sentence under the 
United States Sentencing Guidelines, arguing that the district 
court erred by:  (1) increasing his offense level for obstruction 
of justice, and (2) failing to explain why it denied a decrease 
for acceptance of responsibility.  For the reasons stated 
below, we affirm the sentence.

                                      I


     Based on information provided by an informant, investiga-
tors from an anti-drug-trafficking task force stopped Dozier 
and a passenger, Carl Shipp, while they were driving in the 
District of Columbia.  The agents found a semi-automatic 
pistol loaded with fifteen rounds of ammunition hidden near 
the car's steering wheel, as well as a bag containing $4,037 in 
cash.  Although the agents did not find drugs either on 
Dozier's person or in the car, they did find 33.9 grams of 
cocaine base in Shipp's pockets.

     On November 14, 1996, a grand jury issued a five-count 
indictment against Dozier, charging him with:  (1) conspiracy 
to distribute, and to possess with intent to distribute, five 
grams or more of cocaine base, in violation of 21 U.S.C. 
s 846;  (2) unlawful possession with intent to distribute five 
grams or more of cocaine base, in violation of 21 U.S.C. 
ss 841(a)(1), (b)(1)(B)(iii);  (3) using and carrying a firearm 
during and in relation to a drug trafficking offense, in viola-
tion of 18 U.S.C. s 924(c)(1);  (4) unlawful possession of a 
firearm by a convicted felon, in violation of 18 U.S.C. 
s 922(g)(1);  and (5) unlawful possession of ammunition by a 
convicted felon, in violation of 18 U.S.C. s 922(g)(1).  After 
the district court denied Dozier's motions to suppress evi-
dence, Dozier twice offered to plead guilty to counts four and 
five (the "weapons charges"), in exchange for the dismissal of 
counts one through three (the "drug charges").  The govern-


ment rejected the plea offers and Dozier proceeded to trial in 
February 1997.

     At trial, Shipp testified that both the pistol and the drugs 
belonged to Dozier.  He said that when Dozier noticed the 
police were following the car, Dozier handed Shipp two bags 
of crack cocaine, saying:  "Hold on to this because you cannot 
get searched because you're the passenger of the car."  Shipp 
further testified that after their arrest, while both he and 
Dozier were detained together in a cellblock, Dozier offered 
to give him money or drugs to say the gun was his rather 
than Dozier's:  "He said that ... if I said the gun was mine, 
that he would give me $5,000 or give me an eighth of a key"--
which, Shipp explained, referred to an eighth of a kilogram of 
crack cocaine.  Another witness testified that he had sold the 
gun in question to Dozier.  The jury convicted defendant on 
the weapons charges but acquitted him on the drug charges.

     Following the trial, the United States Probation Office 
prepared a Presentence Investigation Report ("PSR") that 
calculated defendant's sentencing range pursuant to the U.S. 
Sentencing Commission Guidelines Manual (Nov. 1995).  The 
PSR determined that Dozier's base offense level was 20, and 
that his prior convictions for gun and drug offenses generated 
a criminal history category of V.  This yielded a sentencing 
range of 63-78 months of imprisonment.  The PSR recom-
mended against a two-level decrease in the offense level (a 
"downward adjustment") for acceptance of responsibility, pur-
suant to U.S.S.G. s 3E1.1.  The PSR stated:

     The defendant pleaded not guilty and exercised his right 
     to a jury trial.  The defendant, through [h]is attorney, 
     said "the facts of the offense support the convictions."  
     Counsel noted that the defendant offered to plead guilty 
     to the firearm violations after the Suppression Motions 
     were denied, but the government rejected his offer.

     The defendant explained that he bought the gun from a 
     friend "a few years ago."  He added that he had forgot-
     ten that he even had the gun, though he admitted that he 



     hid it because he knew possessing the gun was illegal.  
     Dozier said he only used the gun at a Forestville, Mary-
     land firing range.

     The PSR also recommended against a two-level increase in 
the offense level (an "upward adjustment") for obstructing or 
attempting to obstruct justice pursuant to U.S.S.G. s 3C1.1, 
stating that the Probation Office had "no information at this 
time" to suggest the defendant attempted to obstruct justice.  
An addendum to the PSR noted that "the government ad-
vised us that it will provide additional information in its 
sentencing memorandum" on the issue of obstruction, and 
that if the court then concluded an adjustment were warrant-
ed, the total offense level would increase to 22.  The result, 
the addendum calculated, would be a sentencing range of 77-
96 months.  Dozier filed a sentencing memorandum opposing 
an offense-level increase for obstruction of justice, and argu-
ing in favor of a decrease for acceptance of responsibility 
based on his attempts to negotiate a plea to the weapons 
charges.  The government filed a memorandum arguing in 
favor of an increase for obstruction of justice, based on 
Shipp's testimony that Dozier tried to bribe him to claim 
ownership of the gun.  It also opposed Dozier's requested 
decrease for acceptance of responsibility.

     At the sentencing hearing on May 13, 1997, Dozier's coun-
sel again opposed an increase for obstruction of justice, 
arguing that Dozier's acquittal on the drug charges showed 
that the jury did not find Shipp's testimony credible.  The 
district court, however, made the following finding:  "I think 
the government is right on that point....  [Dozier] offered to 
pay Shipp several thousand dollars to tell the police that the 
gun belonged to Shipp.  If that is not obstruction of justice, I 
don't know what is."  In response to defense counsel's argu-
ment concerning Shipp's credibility, the court said:  "I under-
stand you are saying ... the jury didn't believe Shipp on that 
issue, but there is sufficient evidence here that that is what 
happened."

     Defense counsel also repeated his argument in favor of a 
decrease for acceptance of responsibility.  Although the court 
did not respond directly, it concluded that with a two-level 



increase for obstruction of justice, the resulting sentencing 
range was 77-96 months.  Both parties agree this indicated 
that the court was denying Dozier's request for a decrease.  
The court did not explain its reasons for denying the request, 
and neither party objected to the lack of an explanation--
notwithstanding the court's closing query as to whether either 
counsel had "anything else" prior to concluding the proceed-
ing.  The court sentenced Dozier to 84 months in prison.

                                      II


     U.S. Sentencing Guideline s 3C1.1 requires a two-level 
increase in a defendant's offense level if he willfully obstruct-
ed or attempted to obstruct justice during the investigation or 
prosecution of the offense for which he was convicted.  The 
commentary to the Guideline provides examples of the type of 
conduct to which it applies, including "unlawfully influencing 
a codefendant [or] witness" and "suborning, or attempting to 
suborn perjury."  U.S.S.G. s 3C1.1, comment. (n.3(a), (b)).  
Dozier challenges the district court's imposition of the in-
crease on three grounds.  First, he contends that a finding of 
obstruction of justice must be supported by "clear and con-
vincing evidence," not merely by a preponderance of the 
evidence.  Second, he asserts that the district court erred in 
not making specific factual findings indicating why he found 
Shipp's testimony credible.  Finally, Dozier suggests that the 
evidence was insufficient to support the factual finding of 
obstruction.  Because the jury acquitted him on the drug 
charges, Dozier contends it must have found Shipp's testimo-
ny on that issue noncredible, and that therefore the court 
should not have based an increase on Shipp's testimony that 
Dozier tried to bribe him to lie about the gun.

     We review Dozier's challenges to his sentence according to 
the "trichotomy" established by Congress in 18 U.S.C. 
s 3742(e).  "[P]urely legal questions are reviewed de novo;  
factual findings are to be affirmed unless 'clearly erroneous';  
and we are to give 'due deference' to the district court's 
application of the guidelines to facts."  United States v. Kim, 
23 F.3d 513, 517 (D.C. Cir. 1994).  Dozier's contentions that 



obstruction must be established by clear and convincing 
evidence, and that increases for obstruction must be accompa-
nied by specific findings, are purely legal questions;  we 
therefore review them de novo.  We review the court's factual 
finding that Dozier attempted to obstruct justice under the 
clearly erroneous standard.  There is no dispute about the 
application of the Guidelines to the facts in this case;  Dozier 
does not disagree that an attempt to buy false testimony 
would constitute obstruction of justice.

     We begin with Dozier's contention that obstruction must be 
established by clear and convincing evidence.  As defendant 
concedes, the government's usual burden is to prove facts in 
support of an upward adjustment by a preponderance of the 
evidence.  See United States v. Washington, 115 F.3d 1008, 
1010 (D.C. Cir. 1997);  United States v. Burke, 888 F.2d 862, 
869 (D.C. Cir. 1989).  Relying on our decision in United 
States v. Montague, 40 F.3d 1251 (D.C. Cir. 1994), however, 
Dozier contends that adjustments based on obstruction of 
justice are subject to the higher standard of proof by clear 
and convincing evidence.

     But Montague did not require clear and convincing evi-
dence for all adjustments based on obstruction of justice.  In 
Montague, we held only "that the clear-and-convincing stan-
dard is the appropriate standard by which to evaluate defen-
dant testimony for section 3C1.1 perjury enhancements."  40 
F.3d at 1254 (emphasis added);  see also United States v. 
Gaviria, 116 F.3d 1498, 1518 (D.C. Cir. 1997).  Montague was 
based on our reading of then-effective commentary to 
s 3C1.1, which stated:

     This provision is not intended to punish a defendant for 
     the exercise of a constitutional right.  A defendant's 
     denial of guilt (other than a denial of guilt under oath 
     that constitutes perjury) ... is not a basis for application 
     of this provision.  In applying this provision in respect to 
     alleged false testimony or statements by the defendant, 
     such testimony or statements should be evaluated in a 
     light most favorable to the defendant.



40 F.3d at 1253 (quoting U.S.S.G. s 3C1.1, comment. (n.1) 
(1994)) (emphasis added).  Montague read the commentary's 
admonition, that "such testimony or statements should be 
evaluated in a light most favorable to the defendant," as 
requiring a standard higher than the usual preponderance 
standard.  Id.1  We noted that this requirement may have 
reflected the Commission's concern that "in the absence of a 
heightened standard of proof on perjury, defendants might be 
leery about testifying in their own defense lest they face a 
charge of perjury whenever convicted."  Id. at 1254.  We 
made clear, however, that the commentary "singles out defen-
dant testimony;  it directs courts to use this standard only 'in 
respect to alleged false testimony or statements by the defen-
dant.' "  Id. (quoting s 3C1.1, comment. (n.1)).

     The obstructive conduct at issue here is of a different kind 
than that in Montague.  Dozier is alleged to have suborned 
the perjury of another, not to have committed perjury him-
self.  Hence, neither Montague's holding, nor its concern 
about inhibiting the exercise of a defendant's right to testify 
in his own defense, applies.  Accord United States v. Garcia, 
135 F.3d 667, 670 (9th Cir. 1998) ("Assuming without deciding 
that Application Note 1 mandates a standard greater than a 
preponderance of evidence for a sentence enhancement for a 
defendant's own false testimony, it does not apply ... [where] 
he suborned the perjured testimony of a witness....").  We 
therefore reject defendant's first challenge to the district 
court's decision to increase his offense level for obstruction of 
justice.

     Dozier's second contention is that the district court was 
required, but failed, to make specific factual findings justify-
ing the conclusion that he obstructed justice.  In support, 

__________
     1 Effective November 1, 1997, the Sentencing Commission deleted 
the above-quoted phrase from the commentary to s 3C1.1.  The 
Commission made the deletion so that the Application Note "no 
longer suggests the use of a heightened standard of proof."  
U.S.S.G. App. C, amend. 566 (Nov. 1997) (citing conflict between 
Montague and the Sixth Circuit's contrary view in United States v. 
Zajac, 62 F.3d 145 (6th Cir. 1995)).



Dozier again cites our decision in Montague, this time for the 
proposition that a district court's "finding of perjury under 
section 3C1.1" must be based on "separate and clear" find-
ings.  40 F.3d at 1255-56.  But that holding, too, was limited 
to a finding of perjury by "a testifying defendant," id. at 1255, 
and went "hand-in-hand with [the] higher standard of proof" 
required for such an adjustment.  Id. at 1256.  Neither the 
holding nor the considerations on which it was based extend 
to the defendant's subornation of perjury by another person.2

     It is true that the Sentencing Reform Act of 1984, 18 
U.S.C. s 3553(c), requires that "the court, at the time of 
sentencing, shall state in open court the reasons for its 
imposition of the particular sentence."3  But that requirement 
was met here.  The district court stated that Dozier's sen-
tence was founded upon his base offense level, increased by 
two levels for obstruction of justice.  The court further 
indicated that it made the two-level increase because Dozier 
"offered to pay Shipp several thousand dollars to tell the 
police that the gun belonged to Shipp," and that "[i]f that is 
not obstruction of justice, I don't know what is."  While the 

__________
     2 In Montague, we noted the Supreme Court's decision in United 
States v. Dunnigan, which held that "if a defendant objects to a 
sentence enhancement resulting from her trial testimony, a district 
court must review the evidence and make independent findings 
necessary to establish a willful impediment to or obstruction of 
justice ... under the perjury definition...."  507 U.S. 87, 95 
(1993);  see Montague, 40 F.3d at 1255.  Consistent with our view 
here, we recognized that this holding was based on "the Court's 
reasoning, that there may be instances in which a testifying defen-
dant is found guilty but did not commit perjury."  Montague, 40 
F.3d at 1255 (emphasis added).

     3 Greater specificity is required for certain kinds of sentences not 
at issue here.  Subsection 3553(c)(1) requires an additional state-
ment of "the reason for imposing a sentence at a particular point 
within the range," where the applicable sentencing range, and not 
just the sentence itself, exceeds 24 months.  See United States v. 
Zine, 906 F.2d 776, 778-79 (D.C. Cir. 1990).  Subsection 3553(c)(2) 
requires the court to state its "specific reason" where it imposes a 
sentence outside the range described by the Guidelines.



court acknowledged defendant's contention that it should not 
credit Shipp's testimony, the court concluded that "there is 
sufficient evidence here that that is what happened."  Al-
though it did not go further and explain why it believed 
Shipp, as defendant contends is required, there is little mys-
tery on that point:  the court heard Shipp testify first-hand 
and hence was able to judge his credibility directly.4

     Dozier's final contention is that the evidence was insuffi-
cient to justify a finding of obstruction under any standard of 
proof.  Dozier contends that the court erred in crediting 
Shipp's testimony regarding the attempted obstruction, since 
the jury's acquittal of Dozier on the drug charges assertedly 
demonstrated that it "rejected" Shipp's testimony that Dozier 
handed him the drugs, and thus indicated that the jury did 
not believe Shipp at all.  The court, Dozier suggests, should 
have drawn the same conclusion.

     This argument is wrong for three reasons.  First, as the 
Supreme Court noted in United States v. Watts, 117 S. Ct. 
633, 637 (1997), "it is impossible to know exactly why a jury 
found a defendant not guilty on a certain charge....  [T]he 
jury cannot be said to have 'necessarily rejected' any facts 
when it returns a general verdict of not guilty."  Second, a 
jury may accept some parts of a witness' testimony and reject 
others, see Parker v. United States, 801 F.2d 1382, 1385-86 
(D.C. Cir. 1986);  even if the jury disbelieved Shipp with 
respect to ownership of the drugs, it may have believed him 
with respect to the attempted subornation.  Third, even if the 
jury did not believe that Shipp's testimony established subor-
nation beyond a reasonable doubt (an issue never put to it, 
since subornation was not one of the charges), " 'an acquittal 
in a criminal case does not preclude the Government from 
relitigating an issue when it is presented in a subsequent 
action governed by a lower standard of proof.' "  Watts, 117 

__________
     4 Even if the court had been required to make more specific 
findings, Dozier failed to seek such findings or object to their 
absence below.  As we note in Part III, that failure would subject 
this challenge to review for plain error, a standard Dozier cannot 
meet.



S. Ct. at 637 (quoting Dowling v. United States, 493 U.S. 342, 
349 (1990)).  Accordingly, "a jury's verdict of acquittal does 
not prevent the sentencing court from considering conduct 
underlying the acquitted charge, so long as that conduct has 
been proved by a preponderance of the evidence."  Watts, 117 
S. Ct. at 638;  see United States v. Thomas, 114 F.3d 228, 261 
(D.C. Cir. 1997).

     Here, the district court found the evidence "still sufficient" 
to establish the attempted obstruction, notwithstanding the 
jury's acquittal on the drug charges.  That finding was 
plainly based on the court's first-hand appraisal of Shipp's 
credibility.  As we are charged to "give due regard to the 
opportunity of the district court to judge the credibility of the 
witnesses, and [to] accept the findings of fact of the district 
court unless they are clearly erroneous," 18 U.S.C. s 3742(e), 
we accept the court's finding and affirm the two-level increase 
for obstruction of justice.

                                     III


     The Sentencing Guidelines provide for a two-level decrease 
in a defendant's offense level if he "clearly demonstrates 
acceptance of responsibility for his offense."  U.S.S.G. 
s 3E1.1(a).  Dozier contends that the district court erred by 
failing to explain why it denied him the two-level adjustment.  
Dozier, however, did not object to this failure below--at a 
time when the trial judge could have remedied it by explain-
ing his rationale.  For that reason, even if the failure to 
explain were error, we would be able to correct it only if it 
were "plain error."  Fed. R. Crim. P. 52(b);  see United 
States v. Olano, 507 U.S. 725, 731-32 (1993).

     Although the plain error standard has a number of require-
ments, see Olano, 507 U.S. at 732-36, most important for this 
case is that it puts the burden on the defendant to establish 
prejudice.  See id. at 734;  United States v. Forte, 81 F.3d 
215, 217 (D.C. Cir. 1996).  This means that Dozier must 
demonstrate a "reasonable likelihood" that "the court would 
have reached a different result" had it not made the error 
asserted.  Forte, 81 F.3d at 219-20;  see also United States v. 



Saro, 24 F.3d 283, 288 (D.C. Cir. 1994).  And since the error 
asserted here is the court's failure to explain its decision, the 
defendant must show a reasonable likelihood that the court 
would have granted his requested decrease if it had ad-
dressed the issue directly and explained its reasoning.  Cf. 
United States v. Childress, 58 F.3d 693, 724 (D.C. Cir. 1995) 
(holding that where the error is a failure to make requisite 
findings, plain error requires a showing that it is "reasonably 
likely the district court would have assigned [defendant] a ... 
lower base offense level if it had made the requisite find-
ings").  Dozier faces three hurdles to meeting that require-
ment, which on the facts of this case are insuperable.5

     First, the commentary to the Guideline states that the 
adjustment for acceptance of responsibility "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," except in "rare situations" such as "where a defendant 
goes to trial to assert and preserve issues that do not relate 
to factual guilt."  U.S.S.G. s 3E1.1, comment. (n.2);  see 
United States v. Jones, 997 F.2d 1475, 1478 (D.C. Cir. 1993) 
(en banc) ("The Guidelines explicitly tell judges that they 
normally should deny the two-point reduction to a defendant 
who does not plead guilty.").  Here, Dozier went to trial and 

__________
     5 As noted, defendant's argument is that the court erred in failing 
to explain its reasons for denying the decrease;  he does not directly 
allege that the denial itself was error.  Were he to make such an 
argument, we would review it on a harmless, rather than plain error 
standard, because defendant did seek a decrease at the sentencing 
hearing and did object to the PSR's recommendation against one.  
See Fed. R. Crim. P. 52(a);  cf. United States v. Patel, 131 F.3d 
1195, 1201 (7th Cir.1997) (holding that defendant who consistently 
disputed Guidelines issue did not waive right to appeal by failing to 
object again after court issued findings).  But for essentially the 
same reasons that we conclude defendant was not prejudiced by the 
court's failure to explain its reasoning, we would also conclude that 
the court did not err in refusing to grant the requested decrease in 
the first place.  At bottom, because defendant never "clearly dem-
onstrate[d] acceptance of responsibility for his offense," he cannot 
satisfy the essential prerequisite for the decrease.  U.S.S.G. 
s 3E1.1(a).



his counsel contested "the essential factual elements of guilt," 
both on the charges for which he was acquitted (the drug 
charges) and on those for which he was convicted (the weap-
ons charges).  He did not do so to "preserve issues that do 
not relate to factual guilt," such as "making a constitutional 
challenge ... to the applicability of a statute to his conduct."  
U.S.S.G. s 3E1.1, comment. (n.2).  This further sharpens the 
nature of defendant's burden in establishing plain error:  He 
must demonstrate that it is " 'reasonably likely' that [his] case 
is one of the 'rare situations' in which a defendant who 
proceeds through trial is entitled to a reduction for accep-
tance of responsibility."  United States v. Mitchell, 49 F.3d 
769, 784 (D.C. Cir. 1995).

     Defendant contends that his is one of those rare situations 
because he twice offered to plead guilty to the only charges 
on which the jury convicted him.  The government "forced" 
him "to submit all charges to a trial by jury," Dozier con-
tends, because it refused to accept a plea on the weapons 
charges unless he also agreed to plead guilty to the drug 
charges.  Moreover, to deny him a decrease, Dozier argues, 
would be to transgress the Guidelines' instruction that "a 
defendant is not required to volunteer, or affirmatively admit, 
relevant conduct beyond the offense of conviction in order to 
obtain a reduction."  U.S.S.G. s 3E1.1, comment. (n.1);  see 
United States v. Fields, 39 F.3d 439, 446 (3d Cir. 1994) 
(remanding where it appeared district court may have consid-
ered defendant's refusal to admit conduct not part of the 
offense of conviction).

     But while the government's refusal to accept his plea offer 
may have precluded a negotiated resolution of the case, it 
neither forced Dozier to contest his guilt on the weapons 
charges nor forced his attorney to suggest in closing argu-
ment that the witnesses who said the gun was his were not 
telling the truth.  Tr. at 50-56 (Feb. 26, 1997).  Nor would 
denying Dozier a decrease effectively punish him for refusing 
to admit conduct beyond the weapons charges of which he 
was convicted.  Nothing prevented Dozier from going to trial 
to contest his guilt on the drug charges, while admitting his 
ownership of the gun and ammunition.  Had he done so, he 



would not now be ineligible for the downward adjustment he 
seeks.

     Dozier, however, contends that this was not a real option.  
He had to contest his factual guilt on the weapons charges, he 
asserts, because failure to do so would have prejudiced his 
defense to the drug charges.  But that was not necessarily so.  
To the contrary, Dozier might have improved his credibility 
with the jury by admitting the crimes of which he was guilty 
and contesting only those of which he claims innocence.  Our 
point is not to second-guess Dozier's strategy, but only to 
note that it was a strategy--a calculation that contesting all 
the charges would so increase the probability of an across-
the-board acquittal as to outweigh the risk of losing a down-
ward adjustment in the event of a conviction.  But the 
Guidelines affect many strategic decisions defendants must 
make, and that impact is not itself enough to move a case into 
the "rare" class contemplated by s 3E1.1.  As the Supreme 
Court said, in rejecting the contention that the Guidelines' 
sentencing enhancement for perjury distorts a defendant's 
decision whether to testify, "[o]ur authorities do not impose a 
categorical ban on every governmental action affecting the 
strategic decisions of an accused."  United States v. Dunni-
gan, 507 U.S. 87, 96 (1993).  The fact that Dozier's defense to 
the drug charges might have been weakened by a truthful 
admission to the weapons charges is not one of those rare 
circumstances that would mitigate his decision to contest the 
latter.

     Even if Dozier had conceded his guilt on the weapons 
charges, he would still face a second hurdle.  Where, as here, 
a district court has properly imposed an adjustment for 
obstruction of justice, the Guidelines state that an adjust-
ment for acceptance of responsibility "ordinarily" is not avail-
able.  U.S.S.G. s 3E1.1, comment. (n.4);  see Gaviria, 116 
F.3d at 1521 ("[I]n almost all cases, a defendant who denies 
guilt and goes to trial, or who receives an obstruction of 
justice increase under s 3C1.1, is not eligible for a downward 
adjustment for acceptance of responsibility.").  While the 
commentary to the Guidelines recognizes that there may "be 
extraordinary cases in which adjustments under both 



ss 3C1.1 and 3E1.1 may apply," U.S.S.G. s 3E1.1, comment. 
(n.4), Dozier has not demonstrated that his is one of those 
cases.  See United States v. Smaw, 993 F.2d 902, 905 n.2 
(D.C. Cir. 1993);  see also United States v. Gonzales, 12 F.3d 
298, 300 (1st Cir. 1993) ("A defendant must carry the burden 
of proving that his case is extraordinary and, thus, that it 
comes within the narrow confines of the exception.").

     Dozier does not point to anything "extraordinary" about his 
case, other than to repeat that he twice unsuccessfully at-
tempted to plead guilty.  But those attempts cannot do 
double duty.  At most, they might establish that his situation 
is sufficiently "rare" to overcome the fact that he chose to go 
to trial--an argument we rejected above.  But even if we had 
accepted it, Dozier would be no better off than if he had pled 
guilty.  To overcome the fact that he attempted to obstruct 
justice, he still must show that his case is "extraordinary" in 
some other way.  He has not suggested anything that would 
put it in that category.

     Finally, even if Dozier had cleared the above two hurdles, 
his quest for an adjustment for acceptance of responsibility 
would falter because he cannot establish s 3E1.1(a)'s core 
prerequisite:  An adjustment is available only "[i]f the defen-
dant clearly demonstrates acceptance of responsibility for his 
offense."  U.S.S.G. s 3E1.1(a) (emphasis added);  see United 
States v. Reid, 997 F.2d 1576, 1580 (D.C. Cir. 1993).  Even if 
the government did "force" Dozier to go to trial, it did not 
prevent him from clearly expressing contrition after his con-
viction.  Yet, defendant never did.

     Dozier did say, "[t]hrough his attorney," that " 'the facts of 
the offense support the convictions.' "  PSR p 15.  But that 
sounds more like an expression of nolo contendere than of 
contrition.  It is not enough to demonstrate acceptance of 
responsibility.  See United States v. Thomas, 97 F.3d 1499, 
1501 (D.C. Cir. 1996) ("There is a difference between admit-
ting the acts and accepting responsibility for the crimes.");  
United States v. Cutchin, 956 F.2d 1216, 1219 (D.C. Cir. 
1992).

     Equally deficient was Dozier's direct statement to the 
author of the PSR:


     The defendant explained that he bought the gun from a 
     friend "a few years ago."  He added that he had forgot-
     ten that he even had the gun, though he admitted that he 
     hid it because he knew possessing the gun was illegal.

PSR p 16.  This statement is hardly "clear," let alone an 
acceptance of responsibility.  We read it as suggesting that 
defendant lacked a requisite element of the offense--intent--
because he had forgotten that he had the gun.  See United 
States v. Kirkland, 104 F.3d 1403, 1405 (D.C. Cir. 1997) 
(noting "that a defendant's challenge to the requisite intent is 
just another form of disputing culpability" and is inconsistent 
with acceptance of responsibility).  Defendant's appellate 
counsel contended at oral argument that there was another 
possible reading--that Dozier's use of the past perfect tense, 
"had forgotten," meant the statement could be read as indi-
cating defendant had forgotten about the gun at some earlier 
time but had remembered it by the day of his arrest.  But 
even counsel conceded he was "not certain" which time period 
Dozier was referring to when he said he "had" forgotten the 
gun.  That is simply insufficient to satisfy the requirement of 
s 3E1.1.  To qualify for an adjustment, a defendant must 
"clearly" accept responsibility for his crime;  it is not enough 
that he arguably do so.  See Reid, 997 F.2d at 1580;  United 
States v. McLean, 951 F.2d 1300, 1302 (D.C. Cir. 1991).

     The district court gave Dozier a final opportunity to make a 
statement at the sentencing hearing.  That was Dozier's 
chance to clarify what he had said to the Probation Office, 
and to express any contrition he may have felt.  See McLean, 
951 F.2d at 1302.  But Dozier declined to say anything.  Tr. 
at 4 (May 13, 1997).  While the district court lacks the power 
to force a defendant to express remorse he does not feel, it is 
not required to reward a remorseless defendant with a de-
crease in his offense level.  Because Dozier did not "clearly 
demonstrate acceptance of responsibility for his offense," he 
cannot establish that the court plainly erred in failing to 
explain its denial of an adjustment.

     Defendant draws our attention to a number of cases in 
which reviewing courts vacated and remanded sentencing 



determinations because trial courts failed to explain their 
reasoning adequately.  In those and other cases, however, 
either there was a reasonable likelihood that the trial court 
had based its decision on an impermissible factor (a possibili-
ty that could not be resolved without obtaining a fuller 
statement of the court's reasons),6 or the reviewing court was 
unable to discern a reason for the determination from the 
existing record.7  We have neither problem here.  To the 
contrary, the underlying reasons for denying Dozier an ad-
justment for acceptance of responsibility are both permissible 
and readily discernible.

                                      IV


     The sentence imposed by the district court is

                                                                                   Affirmed.

__________
     6 See, e.g., United States v. Amato, 46 F.3d 1255, 1263 (2d Cir. 
1995) ("It also appears likely that the enhancement was based on 
information which [defendant] was entitled, under his [cooperation] 
agreement, to have excluded from consideration.");  United States v. 
Hicks, 978 F.2d 722, 726 (D.C. Cir. 1993) (remanding because of 
ambiguous reasoning by district court and possibility that court's 
decision implicated a constitutional issue);  United States v. Charg-
er, 928 F.2d 818, 820, 823 (8th Cir. 1991) (remanding because of 
ambiguous and conflicting statements by trial court);  United States 
v. Carlisle, 907 F.2d 94, 96 n.3 (9th Cir. 1990) (noting that remand 
would obviate need to decide whether presentence report had 
"forced [defendant] to implicate himself in other crimes in violation 
of the Fifth Amendment");  see also Saro, 24 F.3d at 288-89 
("Without more, this lack of explicitness would not constitute plain 
error, but there are substantial signs that [defendant's] pre-
sentence report was actively employing the wrong legal standard.").

     7 See, e.g., United States v. Barry, 938 F.2d 1327, 1337 (D.C. Cir. 
1991) (reviewing court was unable to discern, and district court did 
not explain, how perjury in earlier investigation obstructed investi-
gation of offense for which defendant was convicted);  United States 
v. Anderson, 886 F.2d 215, 216-17 (8th Cir. 1989) (remanding 
because district court failed to resolve factual dispute necessary to 
determine whether adjustment was appropriate).