KRAVITCH, Senior Circuit Judge, dissenting:
The majority holds that the district court based its refusal
to grant Wright a downward adjustment for acceptance of
responsibility upon a finding that Wright did not show remorse, and
the majority holds that, even if the district court denied the
downward adjustment because Wright asserted a legal challenge to
his conviction, the district court did not err. Based upon the
record, I cannot conclude that the district court denied Wright a
downward adjustment because of a consideration of permissible
factors such as his lack of remorse or insincerity, or even because
of consideration of those factors along with Wright's legal
challenges to the constitutionality of his indictment. Rather, I
interpret the record to show that the district court denied the
downward adjustment solely because it did not accept Wright’s
counsel’s purely legal argument, which was based upon facts that
Wright truthfully had admitted. Because I believe that the
majority has misinterpreted the record and, more importantly, has
misapplied the law, I respectfully dissent.
I.
Wright admitted immediately upon arrest that he possessed the
machineguns, then led the agents to the location of these weapons,
and subsequently consented to the search of his residence that
resulted in the discovery of an additional machinegun and the three
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pipe bombs. After filing a motion to dismiss the indictment on
constitutional grounds, Wright timely pleaded guilty to the
offenses charged. Wright thus truthfully admitted the conduct
comprising the offenses of conviction and did so at the time of his
arrest, when he pleaded guilty, and at the time of sentencing. He
also cooperated with law enforcement authorities and assured the
district court that he had not possessed any weapons since his
arrest. It is apparent from these facts that Wright presented
“significant evidence” of acceptance of responsibility. See
U.S.S.G. § 3E1.1, comment. (nn.1 & 3).
It was within the authority of the district court to conclude
that this evidence was “outweighed by conduct of the defendant that
is inconsistent with such acceptance of responsibility.” See
U.S.S.G. § 3E1.1, comment. (n.3). In my view, however, the
district court in this case did not rely upon permissible
considerations in concluding that Wright’s conduct was inconsistent
with acceptance of responsibility. After listening to Wright
testify at the sentencing hearing, the district court stated:
This is a hard issue. I think within Mr. Wright’s
own frame of reference, he is sincere in a lot of
the things that he said, but I just do not think
Mr. Wright believes that he was a member of a
militia whose mission was to protect the citizens
of the State of Georgia against threats from the
outside. I think Mr. Wright believes that he was a
member of a group that was prepared to respond to
whatever they perceived to be a threat or a
problem. I’m not convinced by his testimony that
they believed that they were carrying out the law
as opposed to being ready to resist it. So, I will
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overrule the defendant’s objection on the point
regarding acceptance of responsibility.
(R3:23). Unlike the majority, I read these remarks to indicate
that the district court denied Wright a downward adjustment solely
because it did not find his constitutional challenge meritorious.
The district court apparently (and correctly) understood the Second
Amendment to protect only the possession and use of firearms that
is reasonably related to an official state militia. The district
court further concluded that an official militia must be designed
to protect the citizens of Georgia from outside threats and to
carry out the law of Georgia and that Wright had made no showing
that he belonged to such a group. Wright, in contrast, believed
that the Second Amendment protected his conduct, and that belief
formed the basis of his constitutional challenge to his conviction.
Contrary to the majority’s suggestion, the district court made
no finding that the defendant testified untruthfully about his
militia involvement or that the defendant failed to show remorse.
Rather, before listening to Wright’s testimony at the sentencing
hearing, the district court stated:
I think what really bothers me in this case is that Mr.
Wright has put forward through counsel an assertion that
he believed he was entitled to possess all of these
weapons, and apparently the pipe bombs as well because he
thought he was a member of a militia, and, therefore, he
thought he was constitutionally able to have these
things. And that assertion that he is making through
counsel to me is not credible, and that’s what bothers
me. . . . It appears to me that what has happened is
counsel has identified some of the publications that seem
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to be consistent with the idea of defending one’s
countrymen, and you [counsel] have attempted to assert an
argument building on his possession of those items.
(R3:5-6). The district court thus believed that Wright’s legal
claim that his conduct was protected by the Second Amendment lacked
merit.
II.
Despite the multi-faceted nature of the acceptance of
responsibility determination, see U.S.S.G. § 3E1.1, comment. (n.1);
United States v. Calhoon, 97 F.3d 518, 531 (11th Cir. 1996), and the
wide latitude afforded sentencing courts under this section, there
are limits to a district court's discretion in deciding whether to
grant a downward adjustment for acceptance of responsibility.
Although, as we recently made clear, a “district court may consider
the nature of [the defendant's legal challenges to his conviction]
along with the other circumstances in the case when determining
whether a defendant should receive a sentence reduction for
acceptance of responsibility,” United States v. Smith, 127 F.3d
987, 989 (11th Cir. 1997) (en banc) (“Smith”), an otherwise
deserving defendant cannot be denied a reduction under § 3E1.1
solely because he asserts a legal challenge to his conviction that
is unrelated to factual guilt.
In Smith, we held that a panel of this court had gone “too
far” in concluding that “it is impermissible [for a district court]
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to consider [a] challenge to the legal propriety of a sentence” in
denying a reduction in offense level for acceptance of
responsibility. 127 F.3d at 989 (quoting United States v. Smith,
106 F.3d 350, 352 (11th Cir. 1997) (as amended) (“Smith I”)). The
original panel had erred, we concluded, in deciding that a district
court categorically may not consider a defendant's legal challenge
to a presentence report.1 Because “frivolous legal challenges
could suggest to the district court that the defendant has not
accepted responsibility for his conduct” and because Smith's
challenges to the probation officer's initial presentence report
amounted to factual rather than legal contentions, Smith, 127 F.3d
at 989, we concluded that the district court had properly
considered Smith's challenges in determining whether he should
receive a sentence reduction pursuant to § 3E1.1, id. We did not
hold in Smith, nor has this circuit ever held, however, that a
district court may rely only upon a defendant's legal challenge,
such as a constitutional challenge to the statute defining the
criminal conduct or a challenge to the applicability of the statute
to his conduct, see U.S.S.G. § 3E1.1 comment. (n.2), in deciding
not to grant a downward adjustment for acceptance of
responsibility. Indeed, the defendant in Smith had challenged the
1
The original panel had held that “[t]o the extent that
the court denied Smith a reduction for acceptance of
responsibility because Smith's counsel objected to the
presentence report on legal grounds, the court erred.” Smith I,
106 F.3d at 352.
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factual predicate to his conviction, rather than its legal basis,
see Smith, 127 F.3d at 989 (“These objections were factual, not
legal, and amounted to a denial of factual guilt.”), and thus the
Smith court could not have held that a solely legal challenge by a
defendant to his conviction may serve as a valid basis upon which
to deny a downward adjustment for acceptance of responsibility.
Indeed, because such a holding would create constitutional
infirmities in the Sentencing Guidelines, other circuits have
concluded that legal challenges alone cannot form the basis for a
denial of a downward adjustment for acceptance of responsibility.
See United States v. Purchess, 107 F.3d 1261, 1267 (7th Cir. 1997)
(concluding that “district court should not deny the reduction for
acceptance of responsibility because the defendant challenges a
legal conclusion drawn from the facts the defendant admits”);
United States v. Fells, 78 F.3d 168, 172 (5th Cir.) (holding that
district court erred in denying reduction for defendant who “freely
admitted all the facts but challenged their legal interpretation”),
cert. denied, 117 S. Ct. 134 (1996); United States v. Broussard,
987 F.2d 215, 224 (5th Cir. 1993) (holding that district court erred
in denying acceptance of responsibility adjustment when defendant
admitted ownership of guns found in home and went to trial only to
argue that statute did not apply to uncontested facts), overruled
on other grounds by J.E.B. v. Alabama, 114 S. Ct. 1419 (1994); see
also U.S.S.G. § 3E1.1, comment. (n.2) (stating that defendant who
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does not plead guilty may nevertheless clearly demonstrate
acceptance of responsibility if he goes to trial in order “to make
a constitutional challenge to a statute or a challenge to the
applicability of a statute to his conduct”); cf. United States v.
Perry, 977 F.2d 1230, 1234 (8th Cir. 1992) (affirming district
court's refusal to grant adjustment for acceptance of
responsibility because defendant contested factual guilt).
The other cases cited by the majority to support its
conclusion that the district court did not err in denying a
departure for acceptance of responsibility based upon Wright’s
“challenges to the constitutionality of his convictions” are
inapposite. In United States v. Henry, 883 F.2d 1010, 1011 (11th
Cir. 1989), the court held that the acceptance of responsibility
provision of the Sentencing Guidelines does not violate the Fifth
or Sixth Amendment, even though the provision may result in an
unpleasant choice for a criminal defendant between taking the stand
to assert his innocence and receiving a lesser sentence for
acceptance of responsibility. See United States v. McDonald, 935
F.2d 1212, 1222 (11th Cir. 1991) (describing the choice as “either
forcing [the defendant] to confess to his own perjury or to forego
taking the stand at trial to take advantage of [section 3E1.1]”).
The court’s conclusion that the very existence of the provision in
the Guidelines does not unconstitutionally “chill[] the right of a
defendant to defend himself” at trial, Henry, 883 F.2d at 1011,
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however, in no way suggests that a district court may refuse to
grant a reduction in sentence for acceptance of responsibility
solely because the defendant challenged the constitutionality of
his conviction.2
The majority’s reliance upon United States v. Jones, 934 F.2d
1199 (11th Cir. 1991), likewise is misplaced. As the portion of the
opinion cited by the majority makes clear, the court in Jones ruled
that the district court properly refused to grant a departure for
acceptance of responsibility where the defendants challenged the
factual basis of their guilt. See Jones, 934 F.2d at 1200
(referring to the district court’s consideration of “the
defendants’ denial of culpability at trial”) (emphasis added).
Indeed, in Jones, in sharp contrast to the case before us, the
defendants “ceased their criminal activity only after they were
arrested[,] . . . maintained that they were innocent[,] . . .
challenged the credibility of the Government’s witnesses [at
trial,] and urged the jury to find them not guilty.” Id. The
portion of the opinion cited by the majority merely demonstrates
that the Jones court followed Henry in concluding that section
3E1.1 “does not impermissibly punish the defendant for exercising
2
United States v. McDonald, 935 F.2d 1212, 1222 (11th Cir.
1991), also cited by the majority to support its conclusion that
a district court may refuse to grant a downward departure based
solely upon the defendant’s legal challenges, merely followed
Henry in rejecting the defendant’s claim that “the sentencing
guidelines infringe[d] his right to appeal.”
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his constitutional right to stand trial.” Jones, 934 F.2d at 1200
(citing Henry, 883 F.2d at 1012). Moreover, unlike the majority
opinion in the case before us, the court in Jones was careful to
limit the authority of the district court to refuse to grant
downward departures for acceptance of responsibility. See Jones,
934 F.2d at 1200 (“[A] district court may not refuse to grant a
reduction under section 3E1.1 solely because a defendant has chosen
to proceed to trial . . . .”).
III.
Because the asserted legal argument did not relate to Wright’s
factual guilt, see Smith, 127 F.3d at 989, and because, based upon
the sentencing colloquy, the district court does not seem to have
relied upon any basis other than Wright's legal challenges to the
constitutionality of his indictment, I would conclude that the
district court erred in denying Wright a downward adjustment for
acceptance of responsibility. I therefore would remand the case to
the district court for reconsideration of this issue.
Accordingly, I respectfully DISSENT.
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