U.S. v. Jones

• Decision Date: 02 July 1993
• Docket Number: No. 91-3025,91-3025
• Citation: 997 F.2d 1475,302 U.S.App. D.C. 273
• Parties: UNITED STATES of America, v. Thomas T. JONES, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1475

997 F.2d 1475

302 U.S.App.D.C. 273

UNITED STATES of America, v. Thomas T. JONES, Appellant.

No. 91-3025.

United States Court of Appeals District of Columbia Circuit.

Argued March 24, 1993.

Decided July 2, 1993.

Howard B. Katzoff, Washington, DC (appointed by this Court) argued the cause for appellant.

A.J. Kramer, Washington, DC (appointed by this Court) as amicus curiae on behalf of appellant.

John R. Fisher, Asst. U.S. Atty., Washington, DC, argued the cause for appellee. With him on the briefs were Jay B. Stephens, U.S. Atty., at the time the brief was filed, Barbara Grewe and Robin C. Ashton, Asst. U.S. Attys., Washington, DC.

Before: MIKVA, Chief Judge, WALD, EDWARDS, RUTH BADER GINSBURG, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG, SENTELLE, HENDERSON and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS. Dissenting opinion filed by Chief Judge MIKVA.

Dissenting opinion filed by Circuit Judge WALD.

Dissenting opinion filed by Circuit Judge SENTELLE.

STEPHEN F. WILLIAMS, Circuit Judge:

The issue presented in this case is quite straightforward: whether a sentencing judge who grants a defendant credit for acceptance of responsibility, thereby putting the defendant in a lower range under the Sentencing Guidelines, may take account of the defendant's decision to go to trial when sentencing within the new, lower range. We hold that the judge may do so.

Following a three-day trial in November 1990, appellant was convicted by a jury of possessing 50 grams or more of cocaine base with intent to distribute, in violation of 21 U.S.C. §§ 841(a) and (b)(1)(A)(iii). The presumptive sentencing range, based on appellant's Criminal History Category (I) and the applicable Base Offense Level (34), was 151-to-188 months. See U.S.S.G. §§ 2D1.1(a)(3) and Ch. 5, Pt. A. Despite appellant's having gone to trial, the district judge granted him a two-level reduction for acceptance of responsibility under § 3E1.1 of the Guidelines. That lowered appellant's sentencing range to 121-to-151 months. See U.S.S.G. Ch. 5, Pt. A.

Before selecting a point within the range, the judge expressed some concerns arising from the two-level reduction:

Let me tell you what my problem is, Mr. Katzoff [the defense attorney], not that I am not prepared to give him the benefit of the two-point reduction, because he did acknowledge responsibility. The question is should he receive the full benefit of the two-point reduction in view of the fact that he simply has acknowledged that he was guilty of what the jury found him guilty of, after having put the government to its proof on the matter, which, indeed, he does have a constitutional right to do. But he, in effect, had no defense.... And simply saying [after trial], "Yes, you got me this time," is a rather meager basis upon which I might conclude that he truly was remorseful and had accepted full responsibility.

* * *

[Q]uery whether or not I should give him full credit for having accepted responsibility. I have a lot of difficulty with that.

The other side of the coin is that it is, in my judgment, an excessive penalty to pay under the Guidelines to give him no credit for acceptance of responsibility. Even if he had stonewalled, the idea that he gets an additional thirty months for stonewalling, which is what the Guidelines call for, seems to me to be unduly harsh and unfair.

Now I have given you the opposite ends of the spectrum on which I am operating here, I can tell you that my intention would be, because I disagree with the mandatory minimum sentence itself, ¹ to give him the very minimum that I could give him under the Guidelines, and the mandatory minimum statutory sentence. But I am concerned about giving him full credit for acceptance of responsibility.

Sentencing Tr. at 2-4 (emphasis added).

The prosecutor and defense attorney then made sentencing recommendations, with the prosecutor and defense counsel respectively arguing for the top and the bottom of the range. After listening to counsel, the judge stated his decision:

I think that 151 months or, for that matter, a ten-year sentence in the circumstances of a case such as this is barbaric, but I have no choice in the matter.

This is undoubtedly an offense which would call for some jail time were I at liberty to impose a sentence that I would think would be fair in the case.

My ability to be fair has been constricted by the statutory inhibitions under which I operate and, to a somewhat lesser extent, the Guidelines.

I do think that there is some premium that should be recognized for pleading guilty in advance of trial rather than taking a case to trial in which the defendant knows that he is guilty and he is properly charged and there is no defense to it.

I do, however, think that in the circumstances, I intend to give Mr. Jones a major portion of the benefit that he derives from his acceptance of responsibility.

I would, had this case been disposed of with a plea in advance of trial, have sentenced him at the very bottom of the Guidelines and imposed the minimum sentence that I could possibly have imposed.

Because, however, the case did go to trial, I am going to add an additional six months to the Guideline sentence that I intend to impose, and will impose a sentence of 127 months.

I am articulating this so that anybody that wishes to take it to the Sentencing Commission and/or the Court of Appeals may do so. I would like to have some thought given to the considerations I've articulated here today. And I would like to know whether or not there is some constitutional error I commit by recognizing that the case was taken to trial, albeit a matter of constitutional right to take the case to trial, rather than acknowledging in advance the guilt that was obviously supported by the proof.

Sentencing Tr. at 12-13 (emphasis added).

Jones appealed and this court affirmed, rejecting several claims of error, including Jones's constitutional attack on his sentence. United States v. Jones, 973 F.2d 928 (D.C.Cir.1992). We granted rehearing en banc to reconsider the sentencing issue; we again affirm, although on narrower grounds.

Jones argues that the district judge's 127-month sentence included an impermissible six-months penalty that was imposed because Jones exercised his constitutionally guaranteed right to trial. Assuming the ultimate validity of distinctions between denials of leniency and enhancements of punishment--see Corbitt v. New Jersey, 439 U.S. 212, 223-24, 99 S.Ct. 492, 499-500, 58 L.Ed.2d 466; United States v. White, 869 F.2d 822, 826 (5th Cir.1989); United States v. Araujo, 539 F.2d 287, 292 (2d Cir.1976) (quoting United States v. Thompson, 476 F.2d 1196, 1201 (7th Cir.1973)); but see Roberts v. United States, 445 U.S. 552, 557 n. 4, 100 S.Ct. 1358, 1362 n. 4, 63 L.Ed.2d 622 (1980) (expressing doubt as to whether a "principled distinction" may be drawn on the point)--it is clear from the sentencing transcript that the district judge could not properly be described as enhancing appellant's punishment. Instead, in considering appellant's decision to admit guilt only after conviction, the judge merely viewed the appellant's timing as pertinent to the scope of the benefit that he should receive for acceptance of responsibility. The judge decided he should give appellant less of a benefit than he would have allowed an otherwise identical defendant who showed greater acceptance of responsibility by acknowledging his guilt at an earlier stage.

Throughout the sentencing proceeding the district judge focussed on the limited character of appellant's acceptance of responsibility. At the outset he explicitly framed the question at issue as whether the appellant should receive "the full benefit of the two-point reduction" in light of his belated admission of guilt. Sentencing Tr. at 3 (emphasis added). He immediately followed up with the observation that the appellant's conduct furnished "a rather meager basis upon which ... [to] conclude that he truly was remorseful and had accepted full responsibility." Id. at 3 (emphasis added). Accord id. ("query whether or not I should give him full credit for having accepted responsibility" (emphasis added)). At the end he decided that the appellant deserved a "major portion" of the "benefit" that could be obtained for acceptance of responsibility. Id. at 13. Concentrating on whether appellant's conduct was consistent with the sort of remorse or contrition that would justify a full 30-month reduction, the judge decided it was not.

Since long before the Guidelines, the law has allowed sentencing judges to show leniency to defendants who demonstrate contrition and acceptance of responsibility for their crimes. See, e.g., Corbitt v. New Jersey 439 U.S. 212, 224, 99 S.Ct. 492, 500, 58 L.Ed.2d 466 (1978); Brady v. United States, 397 U.S. 742, 751, 90 S.Ct. 1463, 1470-71, 25 L.Ed.2d 747 (1970). The law also has long recognized that a defendant's decision to plead guilty is good evidence of acceptance of responsibility and possibly even sincere remorse. See, e.g., id. at 753, 90 S.Ct. at 1471-72 (defendant who pleads "extends a substantial benefit to the State and ... demonstrates by his plea that he is ready and willing to admit his crime and to enter the correctional system in a frame of mind that affords hope for success in [quicker] rehabilitation"); Alabama v. Smith, 490 U.S. 794, 802, 109 S.Ct. 2201, 2206, 104 L.Ed.2d 865 (1989); United States v. McLean, 951 F.2d 1300, 1303 n. 2 (D.C.Cir.1991). In the absence of what one member of the court at oral argument called a "Remorse-o-meter" to gauge the defendant's level of sincerity, sentencing judges are almost bound--and certainly permitted--to look at a defendant's objective conduct, inferring the greatest remorse, other things being equal, from the promptest acknowledgements of guilt. The whole notion of showing leniency to some deserving defendants--that is, of...