U.S. v. Beal

• Decision Date: 31 March 1992
• Docket Number: No. 91-1935,91-1935
• Citation: 960 F.2d 629
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kevin L. BEAL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 629

960 F.2d 629

UNITED STATES of America, Plaintiff-Appellee, v. Kevin L. BEAL, Defendant-Appellant.

No. 91-1935.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 16, 1991.

Decided March 31, 1992.

Larry Wszalek (argued), Office of the U.S. Atty., Madison, Wis., for plaintiff-appellee.

Jenny Armstrong (argued), Madison, Wis., for defendant-appellant.

Before COFFEY, MANION and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

Defendant-appellant Kevin Lynn Beal pled guilty to violating 18 U.S.C. § 1791(a)(2), possession of a prohibited object by a federal prison inmate. The sentencing court refused to grant Beal a two point diminution of offense level under § 3E1.1 of the United States Sentencing Guidelines ("U.S.S.G.") because it found that Beal had not accepted responsibility for his crime. Beal appeals his sentence. We affirm.

I.

On October 30, 1990, Beal, then an inmate at the Federal Correctional Institute in Oxford, Wisconsin ("FCI-Oxford"), was found carrying an altered ink pen with a one and one-half inch sharpened metal point and was placed in administrative detention. On November 6, 1990, Federal Bureau of Investigation agent Richard Staedtler and prison official Lieutenant Keith Furrow attempted to interview Beal about the incident. Beal admitted that the altered pen was his, but refused to make any other statement.

On November 14, 1990, Beal was charged in a one count indictment under 18 U.S.C. § 1791(a)(2). His motion to suppress his statement to Staedtler and Furrow admitting ownership of the altered pen was denied by the district court after an evidentiary hearing at which Furrow testified. On February 19, 1991, the defendant, pursuant to a formal plea agreement with the United States, pled guilty to the one count indictment. In exchange for the guilty plea, the United States (1) agreed not to charge Beal with any other federal violations relating to the activities which gave rise to the indictment and (2) agreed to recommend to the district court that the defendant had accepted responsibility for his crime and thus merited a two point offense level reduction in his sentencing calculation pursuant to U.S.S.G. § 3E1.1. The charge carried with it a maximum term of imprisonment of five years. 18 U.S.C. § 1791(b)(3).

After receiving Beal's plea, the district court directed that a presentence investigation be conducted. Beal refused to speak with the probation officer, Michael D. Harper, assigned to conduct the investigation. On March 25, 1991, Harper submitted a presentence report ("PSR") to the court which recommended against granting Beal a two point reduction in offense level because Beal's conduct indicated that he had not accepted responsibility for his crime. Both Beal and the government objected to the PSR recommendation, arguing that the defendant had accepted responsibility. A probation department addendum to the PSR responded to the objections and reaffirmed the original recommendation, and also pointed out that Beal refused to be interviewed by the probation officer.

On April 11, 1991, following a hearing, the district court denied Beal a two level reduction for acceptance of responsibility and sentenced the defendant to 35 months imprisonment. The Guidelines range was 30-37 months. With the two level reduction, the range would have been 24-30 months. As required by statute, the sentence was imposed consecutive to the defendant's current federal sentence. 18 U.S.C. § 1791(c). The court outlined several reasons for its refusal to find an acceptance of responsibility: (1) Beal demonstrated no remorse; (2) Beal refused to cooperate with the probation officer; (3) Beal stated that he pled guilty simply to expedite his transfer to another institution; (4) Beal threatened to harm a prison guard (Furrow) who testified against him at his evidentiary hearing; (5) Beal assaulted a prison official after he pled guilty; and (6) Beal continued to make arguments before the court justifying his illegal possession of the weapon.

Beal argues on appeal that the district court committed several errors in denying the two-point reduction for acceptance of responsibility and asks us to vacate the sentence and remand for resentencing.

II.

U.S.S.G. § 3E1.1(a) provides for a decrease of two points in the sentencing offense level "[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct ..." Especially relevant here is that a guilty plea does not entitle a defendant to a sentence reduction "as a matter of right." U.S.S.G. § 3E1.1(c). Section 3E1.1's accompanying commentary, which we treat as an interpretive aid akin to the legislative history of a statute, United States v. Elmendorf, 945 F.2d 989, 997-998 n. 7 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 990, 117 L.Ed.2d 151 (1992) (citing the commentary to U.S.S.G. § 1B1.7), amplifies this point:

"Entry of a plea of guilty prior to the commencement of trial combined with truthful admission of involvement in the offense and related conduct will constitute significant evidence of acceptance of responsibility for the purposes of this section. However, this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility."

U.S.S.G. § 3E1.1, (comment.) n. 3. ¹

We review with deference the district court's § 3E1.1 determination:

"Whether or not a defendant has accepted responsibility for his crime is a factual question. The district court's determination of that question ... enjoys the protection of the 'clearly erroneous' standard. Because the trial court's assessment of a defendant's contrition will depend heavily on credibility assessments, the 'clearly erroneous' standard will nearly always sustain the judgment of the district court in this area."

United States v. Osborne, 931 F.2d 1139, 1154 (7th Cir.1991) (quoting United States v. Sullivan, 916 F.2d 417, 419 (7th Cir.1990)). The clearly erroneous standard of review for findings of fact in the sentencing context is mandated by Congress. 18 U.S.C. § 3742(e). "A finding of fact is clearly erroneous only if, after reviewing the entire evidence, we are left with the definite and firm conviction that a mistake has been committed." United States v. Herrera, 878 F.2d 997, 1000 (7th Cir.1989) (citation omitted). "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Id. (citation omitted). It follows that a district court's sentence will be affirmed if it results from a proper application of the sentencing guidelines to facts not found to be clearly erroneous. Sullivan, 916 F.2d at 419.

The commentary to § 3E1.1 underscores the broad discretion with which the district courts are committed in deciding whether a defendant has accepted responsibility:

"The sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review."

U.S.S.G. § 3E1.1, (comment.) n. 5. An appellant attempting to overturn a district court's § 3E1.1 determination carries a heavy burden.

III.

We turn now to Beal's challenge to his sentence. The defendant maintains initially that the district court erred when it concluded that his refusal to be interviewed by the probation officer preparing his presentence report was evidence of his failure to accept responsibility. We disagree with the defendant's argument that this is "not a proper reason" for refusing to grant the two-level reduction. Application Note 1(c) to § 3E1.1 provides that whether the defendant offers a "voluntary and truthful admission to authorities of involvement in the offense and related conduct" is relevant to the acceptance-of-responsibility inquiry. Although he pled guilty, Beal refused to provide the probation officer with a full account of the circumstances surrounding his illegal possession of the weapon. Beal admitted that the weapon was his, but then refused to say anything more during the presentence investigation. Cooperating (or not) with authorities is evidence of acceptance of responsibility, ² and Beal's failure to cooperate with the sentencing court's efforts to gather information qualifies as "conduct ... inconsistent with ... acceptance of responsibility." U.S.S.G. § 3E1.1 (comment.) n. 3. The sentencing court did not err in including it as one of its reasons for denying Beal the § 3E1.1 reduction. See United States v. Fonner, 920 F.2d 1330, 1335 (7th Cir.1990) (affirming district court's judgment that defendant did not merit § 3E1.1 reduction and noting that defendant's refusal to cooperate with probation office's presentence investigation was evidence that defendant's "last minute apology was a deceitful little show.")

The defendant argues that United States v. Enquist, 745 F.Supp. 541 (N.D.Ind.1990), stands for the proposition that refusing to cooperate with the probation officer conducting the presentence investigation is not evidence of a defendant's willingness to accept responsibility. In Enquist, the district court, rejecting the recommendation of the probation officer, determined that the defendant had accepted responsibility even though he refused to provide his version of the offense to the probation officer. The Enquist court ruled this way only because other considerations convinced it that the defendant had accepted responsibility for his offense. Among the most significant of these mitigating factors was that the defendant had twice met with government investigators and provided truthful information (a fact of which the probation officer was unaware). Id. at 545. The Enquist court thus treated the defendant's refusal to cooperate with the probation officer as evidence that he had not accepted responsibility, but concluded that that evidence was outweighed by other considerations and...