United States Court of Appeals,
Eleventh Circuit.
No. 96-6025.
UNITED STATES of America, Plaintiff-Appellee,
v.
Pedro McPHEE, Defendant-Appellant.
March 25, 1997.
Appeal from the United States District Court for the Middle
District of Alabama. (No. CR 95-136-S(02), W. Harold Albritton,
District Judge.
Before BIRCH, Circuit Judge, and RONEY and FARRIS*, Senior Circuit
Judges.
RONEY, Senior Circuit Judge:
The question on this appeal is whether, once a sentencing
court has found that a criminal defendant qualifies for a decrease
in his basic offense level for acceptance of responsibility and
cooperation under U.S.S.G. § 3E1.1(a) and (b), the court then has
discretion to apply less than the three-level decrease provided by
the sentencing guidelines. Holding the three-level decrease is
mandated, we vacate the sentence which decreased the offense level
by only two points and remand for resentencing.
Arrested for conspiracy to distribute cocaine base, Pedro
McPhee waived indictment and pled guilty. He was released under
pretrial supervision. Approximately two months later and before
sentencing, the Government learned that McPhee planned to escape
from the half-way house where he was residing, and successfully
moved to revoke his conditional release.
*
Honorable Jerome Farris, Senior U.S. Circuit Judge for the
Ninth Circuit, sitting by designation.
Satisfied with McPhee's acceptance of responsibility and
degree of cooperation, the district court adjusted McPhee's base
offense level. But because of the alleged escape attempt, the
court decreased the level by only two of the three points provided
under U.S.S.G. § 3E1.1(a) and (b).
The sentencing guidelines provide for a two-level (also
referred to as a point) reduction in defendant's base offense level
for acceptance of responsibility, plus an additional one-level
reduction provided defendant for timeliness of his cooperation.
Whether defendant is entitled to the two-level reduction depends
upon the defendant's willingness to acknowledge his own role in the
offense. "If the defendant clearly demonstrates acceptance of
responsibility for his offense, decrease the offense level by 2
levels." U.S.S.G. § 3E1.1(a) (Nov.1995). The defendant may then
receive an additional one-level reduction for
(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,....
U.S.S.G. § 3E1.1(b)(1) and (2). Thus, section 3E1.1 deals with
defendant's own conduct in committing the offense and "[i]n
general, the conduct qualifying for a decrease in offense level
under subsection (b)(1) or (2) will occur particularly early in the
case." § 3E1.1 (n.6).
By contrast, U.S.S.G. § 5K1.1 provides that once the
applicable guideline range has been determined, the court upon
motion by the Government may depart downward from the applicable
guideline range when the defendant's "substantial assistance in the
investigation or prosecution of another person who has committed an
offense may justify a sentence below a statutorily required minimum
sentence." § 5K1.1 (n.1) (emphasis added). In this case, after
arriving at the applicable sentencing range, the court, upon motion
of the Government, departed downward from the sentence to be
imposed based on McPhee's substantial assistance to the Government
concerning other persons under U.S.S.G. § 5K1.1.
This appeal only involves the decrease under section 3E1.1(a)
and (b) which focuses on acceptance of responsibility for the
defendant's own conduct at an early stage, and does not involve the
departure for assistance concerning other persons under section
5K1.1.
Because the sentencing court is in a unique position to
determine whether a defendant has accepted responsibility, this
Court reviews such determinations for clear error and with great
deference. Once the district court has determined the defendant
has accepted responsibility, however, the court's application of
the guidelines is reviewed de novo. United States v. McConaghy,23
F.3d 351, 352 (11th Cir.1994).
It is clear from the record that, but for the attempted
escape, the court determined that McPhee was fully qualified for
the three-level reduction. The record indicates that McPhee timely
provided information regarding his conduct and timely notified
authorities of his intention to enter a plea of guilty. McPhee
waived his right to an indictment and immediately pled guilty. The
district court stated that it was satisfied with McPhee's level of
cooperation and acceptance of responsibility. The only issue for
the court was whether McPhee actually attempted to escape, and
whether the reduction for acceptance of responsibility should be
taken away because of that activity. Having heard the rather shaky
evidence of the alleged escape attempt, the court said:
We are talking here about hearsay and the possibility of
misunderstanding as to who was saying what. You have a
possibility of three points for acceptance of responsibility.
The judge has a bit of discretion within that range. I am not
satisfied enough that this individual was actually attempting
to escape to deny him all the acceptance of responsibility
points after what he has done in accepting responsibility and
cooperating with the government.
However, in view of the possibility of an escape and all of
the circumstances that I am considering, I am not willing to
award the entire three points. I am going to give him two
points for acceptance of responsibility and adjust this
accordingly.
On this appeal, the Government concedes that the district
court's legal interpretation was not in accord with the decisions
of other circuits that have addressed a sentencing court's
discretion when determining the number of points a defendant is
entitled to under section 3E1.1.
Clearly, under the law of this circuit, there is no discretion
to award less than a two-level reduction for acceptance of
responsibility under section 3E1.1(a). United States v. Carroll,
6 F.3d 735, 741 (11th Cir.1993) (Section 3E1.1(a) does not
contemplate a partial acceptance of responsibility or a court's
being halfway convinced that a defendant accepted responsibility.
A defendant is entitled to either a two-level reduction or none.),
cert. denied sub nom., Jessee v. United States, 510 U.S. 1183, 114
S.Ct. 1234, 127 L.Ed.2d 577 (1994).
We have not yet decided whether the third-point reduction
under section 3E1.1(b) can be withheld for reasons unrelated to the
timeliness of the cooperation. Our review of the decisions in
other circuits, however, reveals that they have consistently held
that once a defendant is awarded a two-level reduction for
acceptance of responsibility, whether or not to grant the
additional one-level reduction is a matter of determining only
whether the defendant timely provided information and notified
authorities of his intention to enter a plea of guilty. E.g.,
United States v. Townsend, 73 F.3d 747, 755 (7th Cir.1996); United
States v. Huckins, 53 F.3d 276, 279 (9th Cir.1995).
Any obstructionist conduct following the guilty plea has been
held to be irrelevant to whether the defendant is entitled to the
one-level reduction provided under § 3E1.1(b). United States v.
Talladino, 38 F.3d 1255, 1263-64 (1st Cir.1994) ("As a matter of
common sense, the district court's determination that, having
obstructed justice, appellant deserved something less than the
maximum three-level reduction for acceptance of responsibility is
attractive. As a matter of law, however, the court's decision is
more vulnerable.... The language of subsection (b) is absolute on
its face. It simply does not confer any discretion on the
sentencing judge to deny the extra one-level reduction so long as
the subsection's stated requirements are satisfied."); United
States v. Tello, 9 F.3d 1119, 1128 (5th Cir.1993) ("any fair and
reasonable reading of [the text and commentary of section 3E1.1],
even in pari materia with the obstruction provisions of § 3C1.1,
demonstrates" that these provisions "eschew any court discretion to
deny the one-level reduction").
The Government does not defend on this appeal the challenged
sentence. Our review of the guidelines and the case law on this
issue convinces us that the district court misconstrued the
discretion available to it, so the case must be remanded for
resentencing. Section 3E1.1(b) directs the district court to grant
an additional point based on the "timeliness" of acceptance of
responsibility, see McConaghy, 23 F.3d at 353 (stating that
timeliness under [U.S.S.G. § 3E1.1(b) ] is a factual determination
to be made on a case-by-case basis), and the district court denied
the additional point on improper grounds.
Under the guidelines, conduct that involves "escaping or
attempting to escape from custody before trial or sentencing"
warrants a two-level enhancement of defendant's offense level under
U.S.S.G. § 3C1.1 for obstruction of justice. § 3C1.1, comment
n.3(e). In the presentence report, the probation officer
questioned whether McPhee's conditional release could be
interpreted as being "in custody" for purposes of this section.
Without addressing that issue, it would seem from the district
court's comments about the weight of the evidence of the alleged
attempted escape that the evidence was insufficient to warrant
application of this section.
SENTENCE VACATED AND REMANDED.