893 F.2d 156 (8th Cir. 1990), 89-5104, United States v. Wivell

Docket Nº:89-5104.
Citation:893 F.2d 156
Party Name:UNITED STATES of America, Appellee, v. Alan Reed WIVELL, Appellant.
Case Date:January 03, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 156

893 F.2d 156 (8th Cir. 1990)

UNITED STATES of America, Appellee,


Alan Reed WIVELL, Appellant.

No. 89-5104.

United States Court of Appeals, Eighth Circuit

January 3, 1990

Submitted Sept. 11, 1989.

Page 157

Earl P. Gray, St. Paul, Minn., for appellant.

Doug Peterson, Minneapolis, Minn., for appellee.

Before LAY, Chief Judge, and BOWMAN and MAGILL, Circuit Judges.

BOWMAN, Circuit Judge.

Alan Reed Wivell pleaded guilty to a charge of attempted possession with intent to distribute approximately one kilogram of cocaine. The District Court 1 sentenced him under the United States Sentencing Guidelines to seventy-eight months in prison, to be followed by four years of supervised release. On appeal, Wivell asks this

Page 158

Court to vacate his sentence and remand for resentencing, arguing that his offense level under the Guidelines should have reflected a two-level reduction for acceptance of responsibility. We affirm.

During the course of an undercover investigation, Wivell purchased approximately one kilogram of cocaine from an undercover agent for $24,500 in cash. A search of the automobile in which Wivell rode to the transaction uncovered a .38 caliber revolver and a vehicle purchase contract showing Wivell as the purchaser of the automobile. Wivell was indicted on two counts: Count I, attempted possession with intent to distribute approximately one kilogram of cocaine in violation of 21 U.S.C. Secs. 841(a)(1) (1982), 841(b)(1)(B)(ii)(II) (Supp. V 1987) & 846 (1982); and Count II, use of a firearm in connection with a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c)(1) (Supp. V 1987). He pleaded guilty to Count I. Pursuant to his plea bargain, Count II was dismissed at sentencing. Wivell was sentenced to seventy-eight months in prison, to be followed by four years of supervised release. Declining to follow the recommendation set forth in the Presentence Investigation Report (PSI), the court did not add to the base offense level two levels for possession of a firearm during the offense. In accordance with the PSI recommendation, the court refused to reduce the base offense level for acceptance of responsibility.


Seeking a remand for resentencing, Wivell first argues that the court sentenced him in violation of law because it did not "state in open court the reasons for its imposition of the particular sentence" as required by 18 U.S.C. Sec. 3553(c) (Supp. V 1987). We disagree. While the court's written sentencing memorandum in this case is sparing in giving reasons, saying only that the court found the sentence as calculated under the guidelines "appropriate," the record of the sentencing proceedings shows that the court refused to give credit for acceptance of responsibility because Wivell had continued in his criminal course of conduct after his indictment. We find no error in the court's failure to articulate specific reasons in the written memorandum, as the reasons appear on the record of the sentencing proceedings in open court. That is all the statute requires. There is no reason to disturb the sentence on this ground and we decline to do so.


Wivell also argues that, because he is entitled to the two-level reduction for acceptance of responsibility, his sentence as imposed was an incorrect application of the Guidelines. Again, we disagree.

To qualify for the reduction, a defendant must "clearly demonstrate[ ] a recognition and affirmative acceptance of personal responsibility for his criminal conduct." United States Sentencing Commission, Guidelines Manual, Sec. 3E1.1(a) (Nov.1989) (hereinafter U.S.S.G.). Wivell claims that in pleading guilty he believed he had accepted responsibility--what more could he do? In our view, however, this argument completely misses the point of this provision. Wivell apparently interprets the two-point reduction for acceptance of responsibility as statutory bait for a guilty plea. 2 But acceptance of responsibility means what it says: a defendant must sincerely have accepted responsibility for his crime. While the sentencing judge cannot peer into the defendant's heart to discover whether a defendant is genuinely contrite, he can look for outward manifestations of acceptance of responsibility, such as those listed in the...

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