U.S. v. Perez-Franco
| Decision Date | 13 January 1989 |
| Docket Number | D,No. 88-1768,PEREZ-FRANC,88-1768 |
| Citation | 873 F.2d 455 |
| Parties | , 28 Fed. R. Evid. Serv. 173 UNITED STATES of America, Appellee, v. Jose Rafaelefendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
John F. Cicilline, Providence, R.I., for appellant.
James H. Leavey, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief for the U.S.
Before CAMPBELL, Chief Judge, BOWNES and TORRUELLA, Circuit Judges.
Defendant-appellant Jose Rafael Perez-Franco appeals the sentence he was given pursuant to the new Sentencing Guidelines. He claims that the district court incorrectly calculated his offense level by refusing to give him credit for acceptance of responsibility as provided for under the Guidelines. We hold that a defendant needs to accept responsibility only for the counts to which he is pleading guilty. We remand.
The defendant was indicted on five counts: Count I charged conspiracy to deliver and possess with intent to distribute heroin; Count II charged delivery of heroin on October 16, 1987; Count III charged delivery of heroin on October 26, 1987; Count IV charged possession with intent to distribute one kilogram or more of heroin; and Count V charged possession with intent to distribute 100 grams or more of heroin. The defendant entered into a plea agreement with the government under which he would plead guilty to Count IV in exchange for the government dismissing Counts I, II, and III, and agreeing to recommend a sentence of ten years imprisonment, the statutory minimum, for Count IV. Count V had been dismissed prior to the plea agreement.
As part of the preparation for the presentence report, the United States probation officer asked the defendant to explain his involvement in the offense. The defendant responded that: The presentence report submitted by the probation officer computed the defendant's offense level under the Sentencing Guidelines as 32. This level did not include a two point reduction for "acceptance of responsibility," as permitted by the Guidelines under certain circumstances. This two point difference impacts on the length of the sentence under the Guidelines so that a sentence of 108-135 months imprisonment is given for level 30, and 135-148 months is given for level 32. Within seven days of notification of the probation officer's recommendation, the defendant objected to the failure to award him two points for acceptance of responsibility. The heart of the disagreement was whether the Sentencing Guidelines required the defendant to accept responsibility only for Count IV, the count to which he had pled guilty, or whether he also had to accept responsibility for the other counts in the indictment that were to be dismissed.
During the sentencing hearing, defense counsel maintained that the defendant "should not disclose the information relating to Counts I, II, III and V because to do so would cause him to incriminate himself in a situation where we have a conditional plea agreement." He went on to argue that if the judge were "to reject this [plea] agreement out of hand today at sentencing, [the defendant] would have incriminated himself on counts in which he still maintains a not guilty plea." Defense counsel summed up his argument by stating that "the only thing [the defendant] needs to accept responsibility for is the count he's pleading on, unless he otherwise has some guarantee that he will never be prosecuted for the other counts in the indictment."
The government was in complete agreement with the defendant on this issue, and also urged the court to grant the defendant the two point reduction. At the sentencing hearing, the prosecutor asserted:
I certainly agree that [the defendant] should have received the two points in this case ... because these defendants pleaded guilty to Count IV of the indictment.... [T]hey admitted that they knew it was heroin; they knew it was some 20 thousand packets because they mentioned 410 browns. Each brown has 50 packets. So they admitted that they knew they were possessing heroin; that it was over a kilogram and they possessed it with the intent to distribute. In my view that is acceptance of responsibility.
The prosecution also agreed with the defendant that the counts that they had agreed to dismiss as part of the plea negotiations "technically ... [were] still pending."
The district court rejected the arguments of both the defense and prosecution, and ruled that the Sentencing Guidelines required a defendant to admit responsibility for all his criminal activity, not just the counts to which he was pleading guilty, even if that meant incriminating himself on the other counts. The court reiterated this position on several occasions during the sentencing proceedings:
I am going to conclude that acceptance of responsibility means total candor by the defendant as to his total criminal conduct.... [T]he legislature intended that there had to be full disclosure albeit it might be incriminating as to other counts.... (Emphasis added).
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I've already read into the record my reasons for what I've done in spite of the arguments counsel has made that the defendant should not be required to give information, which would incriminate him on other counts and that is exactly what would have happened in this case.... (Emphasis added).
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[F]ull disclosure means a full disclosure. Total acceptance of responsibility albeit serious consequences as to other counts. (Emphasis added).
The court made its reasons for refusing the two point reduction very clear:
[The defendant] was properly interviewed by the probation officer....
[T]he defendant chose only to offer limited comments concerning his activities as they pertain to Count IV of the indictment. He did not explain his behavior that took place on October 26, 1987 ... which described the delivery of a heroin mixture.... To me, for these reasons, it is clear that when the defendant was afforded the opportunity to candidly disclose the full scope of his offense behavior in this case, he failed to do so.
The court concludes, therefore, that the defendant should not receive a two level reduction from the base offense score.
The district court, however, did acknowledge that there was some merit in the argument of the defendant and government that the defendant was not required to incriminate himself on the counts to which he was not pleading guilty, and that the issue could only be resolved by this Court of Appeals. 1
After the district court made clear that it was going to require acceptance of responsibility on all the charges in the indictment, not just the one that the plea agreement covered, the defendant, during allocution, did in fact accept responsibility for his acts in Counts I, II and III, as well as those in Count IV. The court, nevertheless, ruled that it would not reduce the defendant's offense level, and, using the Guideline level of 32, sentenced the defendant to 135 months imprisonment.
The defendant appealed on the grounds: (i) that the court had improperly applied the Sentencing Guidelines by denying him credit for acceptance of responsibility based on his statements concerning Count IV to the probation officer; and, (ii) that his in-court statement during allocution covering all the counts entitled him to credit for acceptance of responsibility.
We first look to the actual language of the Sentencing Guidelines. Section 3E1.1 deals with credit to be given a defendant for acceptance of responsibility:
(a) If the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct, reduce the offense level by 2 levels.
(b) A defendant may be given consideration under this section without regard to whether his conviction is based upon a guilty plea or a finding of guilt by the court or jury or the practical certainty of conviction at trial.
(c) A defendant who enters a guilty plea is not entitled to a sentencing reduction under this section as a matter of right.
United States Sentencing Guidelines, Sec. 3E1.1 (January 15, 1988) (emphasis added).
This current version was amended from the previous version of October, 1987, in which subsection (a) stated that the defendant had to accept personal responsibility for "the offense of conviction," rather than for "his criminal conduct." The district court ruled, and the government now argues in this appeal, 2 that this amendment to the Guidelines mandates that a defendant accept responsibility for all his criminal conduct, irrespective of whether or not the conduct relates to the counts to which he is specifically pleading guilty as part of a plea agreement.
We find that the Sentencing Guidelines cannot be interpreted to mean what the government now urges. If a defendant's "criminal conduct" is interpreted to mean literally "all of his criminal conduct," then not only does it include counts for which he was indicted and to which he has not pleaded guilty, but also must include criminal activity relating to the current offense for which he may not have been indicted, as well as any past criminal conduct. This reading could not possibly have been what the drafters intended. Nor can we accept the government's argument that "criminal conduct" means "all criminal conduct," while at the same time limiting "all criminal conduct" to mean only that included in the original indictment. The government has offered us no reason to adopt this particular interpretation--in our view, a strained one--of "all criminal conduct."
Once "criminal conduct" is seen as not meaning literally "all criminal conduct," then the...
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