United States v. Coe

                         United States Court of Appeals,

                                  Eleventh Circuit.

                                        No. 95-4193

                                Non-Argument Calendar.

            UNITED STATES of America, Plaintiff-Appellee,

                                              v.

     Raymond COE, a/k/a Raymond Robertson, Defendant-Appellant.

                                   March 29, 1996.

Appeal from the United States District Court for the Southern
District of Florida. (No. 94-92-CR-DTKH), Daniel T.K. Hurley,
Judge.

Before ANDERSON, BIRCH and BARKETT, Circuit Judges.

      PER CURIAM:

       Raymond Coe appeals his sentence of 267 months for possession

of a firearm by a convicted felon.                  Coe argues that the trial court

erred in refusing to grant a downward adjustment for acceptance of

responsibility under USSG § 3E1.1 (1994).                       In reviewing a trial

court's   refusal         to    grant    an       adjustment,    this   court     reviews

interpretations of the sentencing guidelines de novo, United States

v.   Pedersen,      3    F.3d    1468,    1470      (11th     Cir.1993),    and   factual

determinations for clear error, United States v. Kendrick, 22 F.3d

1066, 1068 (11th Cir.1994).

      Section       3E1.1      requires       a    downward    adjustment    "[i]f    the

defendant clearly demonstrates acceptance of responsibility for his

offense."    USSG § 3E1.1(a).                 To determine whether a defendant

qualifies,      a       sentencing       court      should      consider    whether   he

"truthfully admitt[ed] or [did] not falsely deny[ ] any additional

relevant conduct for which the defendant is accountable under §
1B1.3   (Relevant   Conduct)."      USSG   §   3E1.1,   comment.   (n.   1).

Relevant conduct under § 1B1.3 includes

     all acts and omissions committed, aided, abetted, counseled,
     commanded, induced, procured, or willfully caused by the
     defendant ... that occurred during the commission of the
     offense of conviction, in preparation for that offense, or in
     the course of attempting to avoid detection or responsibility
     for that offense.

USSG § 1B1.3(a)(1).    The commentary to § 1B1.3 further explains:

     The principles and limits of sentencing accountability under
     this guideline are not always the same as the principles and
     limits of criminal liability. Under subsection[ ] (a)(1) ...
     the focus is on the specific acts and omissions for which the
     defendant is to be held accountable in determining the
     applicable guideline range, rather than on whether the
     defendant is criminally liable for an offense as a principal,
     accomplice, or conspirator.

USSG § 1B1.3, comment.    (n. 1).

     Coe admitted that he used a firearm to commit a robbery,

although he claimed he could not remember whether he had pulled the

weapon's trigger.     The government points out that Coe initially

denied that he had held the gun to the victim's head and pulled the

trigger and had brandished the gun at other civilians.                   The

district court found that Coe did not accept responsibility because

he was not forthright about brandishing the gun and pulling its

trigger.

     On appeal, Coe argues that whether he accepted responsibility

for pulling the trigger and brandishing the gun is irrelevant to

the acceptance of responsibility analysis because those actions do

not constitute "relevant conduct" within the meaning of § 1B1.3.

He argues that according to § 1B1.3's heading—"Relevant Conduct

(Factors That Determine the Guideline Range)"—and note 1 of §

1B1.3's commentary, relevant conduct includes only those acts and
omissions that are used to calculate the applicable guideline range

prior to adjustment.      However, the broad language of § 1B1.3(a) is

clear:    relevant conduct includesall acts that occurred during the

commission of the offense.       Moreover, note 1 must be read in its

entirety and in light of the breadth of § 1B1.3(a).          In context it

becomes apparent that note 1 is not limiting, but merely explains

that relevant conduct encompasses more than those acts directly

relevant to criminal liability.

         In this case, Coe brandished a gun and pulled its trigger

during the offense for which he was convicted.              Those acts are

relevant conduct for which Coe is accountable, and therefore, a

court    may   consider   them   in   assessing   whether    Coe   accepted

responsibility for his offense.           Because the court correctly

interpreted     the   sentencing      guidelines,    and     its    factual

determination that Coe had not been forthright about pulling the

trigger and brandishing the gun is not clearly erroneous, we affirm

Coe's sentence.

     AFFIRMED.