U.S. v. Beserra

• Decision Date: 21 July 1992
• Docket Number: No. 91-3619,91-3619
• Citation: 967 F.2d 254
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesus A. BESERRA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 254

967 F.2d 254

UNITED STATES of America, Plaintiff-Appellee, v. Jesus A. BESERRA, Defendant-Appellant.

No. 91-3619.

United States Court of Appeals, Seventh Circuit.

Argued June 17, 1992.

Decided July 21, 1992.

Barry R. Elden, Matthew M. Schneider, Asst. U.S. Attys., John J. Tharp, Jr. (argued), Office of U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Michael B. Mann, Zavislak & Mann, Hillside, Ill. (argued), for defendant-appellant.

Before CUMMINGS, POSNER, and MANION, Circuit Judges.

POSNER, Circuit Judge.

The defendant was sentenced to 78 months in prison after he pleaded guilty to one count of conspiring to possess cocaine with intent to distribute it. 21 U.S.C. § 846. The only question raised by his appeal is whether the district judge committed clear error in refusing to reduce the offense level by two points for acceptance of responsibility, which would have lowered the guidelines range applicable to the defendant from 78-97 months to 63-78 months.

Acceptance of responsibility means that "the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct." U.S.S.G. § 3E1.1(a). This demonstration can be evidenced by such things as voluntary termination of criminal conduct, voluntary and truthful admission of guilt, voluntary surrender promptly after commission of the offense, voluntary payment of restitution prior to an adjudication of guilt, and voluntary assistance to the authorities, but the list is not exhaustive. Application Note 1. A plea of guilty is (normally) a necessary, but is not a sufficient, condition. U.S.S.G. § 3E1.1(c); Application Note 2.

The defendant's claim is based on a letter he wrote the probation officer who conducted the presentence investigation (and who recommended against a finding of acceptance of responsibility), and on a brief oral statement to the district judge, which essentially repeats the letter and in which the defendant says: "I made a terrible thing and involved myself and paid attention to the person that was the informant, and in those days I was drinking a lot and that is what drove me to do this, to pay attention to this person. And because of that I feel that I really beg your forgiveness." The judge regarded this as an effort to shift responsibility from the defendant himself to the demon alcohol and evil companions. A judge who took the same approach in United States v. Drapeau, 943 F.2d 27 (8th Cir.1991), was affirmed--as was a judge who took the opposite approach in United States v. Big Crow, 898 F.2d 1326 (8th Cir.1990).

The matter can indeed be argued both ways. It is a fact that people who drink heavily and have the misfortune to fall in with bad people are more likely to commit crimes, and an acknowledgement and understanding of the role of these circumstances could be thought the first step toward self-reform. One way to avoid temptation is to have character; another is to keep away from the circumstances that create temptation. That is one way to look at Bessera's statement but another is that he was trying to avoid responsibility by blaming his criminal conduct on forces outside of his own will or character. Just as Hamlet apologized to Laertes by saying that it was not Hamlet who had wronged him but Hamlet's madness, so Bessera apologized to the court by saying that it was not Bessera but drink that had...