U.S. v. Taylor, s. 90-3124
| Decision Date | 09 July 1991 |
| Docket Number | 90-3136 and 90-3137,Nos. 90-3124,s. 90-3124 |
| Citation | 937 F.2d 676 |
| Parties | UNITED STATES of America, Appellee, v. Nathaniel TAYLOR, Appellant. UNITED STATES of America, Appellee, v. Paul T. ASHBY, Appellant. UNITED STATES of America, Appellee, v. Merle V. WATSON, Jr., Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia.
David B. Smith (appointed by the Court) for appellant, Nathaniel Taylor.
Thomas Lumbard (appointed by the Court) for appellants, Paul T. Ashby and Merle V. Watson, Jr.
Frederick W. Yette, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher and Russell D. Duncan, Asst. U.S. Attys. were on the brief, for appellee in all cases.
Before D.H. GINSBURG, SENTELLE and HENDERSON, Circuit judges.
Opinion for the court filed by Circuit Judge HENDERSON.
On these appeals, we address the challenges three criminal defendants raise to the sentences they received under the U.S. Sentencing Guidelines (Guidelines). United States Sentencing Commission, Guidelines Manual, (Nov. 1990). The appellants contend the district court erred in several respects in imposing sentence. First, all three assert that, by denying them a two-point reduction for acceptance of responsibility, the district court misconstrued the relevant section of the Guidelines and violated their fifth amendment right against compelled self-incrimination. Second, one appellant contends that the provision of the Guidelines under which the district court increased his offense level because he possessed a stolen gun impermissibly imposes strict liability. Third, one appellant argues that the district court based an upward departure on improper considerations and erred by failing to give notice of its intent to depart. Finally one appellant asserts that the court erred by departing upward by two levels, rather than one, in his criminal history category. Having carefully reviewed all of these contentions, we find only the final challenge to have merit; we therefore affirm the sentences imposed on two of the appellants and remand for further proceedings as to the remaining appellant.
On the evening of February 21, 1990, District of Columbia police stopped a pickup truck carrying four men when they recognized one of the passengers as an escaped felon. The truck contained the three appellants, Nathaniel Taylor, Paul Ashby and Merle Watson, and another man not involved in this proceeding. The police discovered all four of the men were carrying loaded firearms 1 and wearing bullet-proof vests under their clothing. Because they were all convicted felons, the four were indicted under 18 U.S.C. Sec. 922(g)(1) which prohibits possession of a firearm by a convicted felon. At their arraignment on April 3, 1990, the three now before us pleaded guilty to the charges against them.
During their presentence interviews with the probation office, the three appellants gave differing accounts of why they were carrying the guns and wearing bullet-proof vests. Watson and Ashby stated that they were interested in purchasing the guns and vests from Taylor and that they were all in the truck on their way to test the guns and vests. Taylor, on the other hand, stated, "it's a jungle out there," and claimed that he was carrying the gun for protection. The presentence reports recommended that, because each defendant had pleaded guilty to the charges against him, each receive a two-level downward adjustment for acceptance of responsibility under section 3E1.1 of the Guidelines. At the sentencing hearing, the district court denied all three defendants the two-level credit. The court termed the defendants' claim that they were going to test the guns and vests an "inherently incredible story," stating that the defendants were "almost making fun of the court by presenting that kind of account." The court further stated:
I do not believe that they have voluntarily and truthfully admitted to the authorities the full extent of their involvement in the offense that is involved and in all the related conduct which is a prerequisite and that a mere plea of guilty is insufficient.
After the arrest of the three, an investigation revealed that Ashby's firearm was a stolen one. To take account of this fact, his presentence report recommended a two-level increase in the offense level under Guideline section 2K2.1(b)(2). At the sentencing hearing, the court acknowledged that "Mr. Ashby cannot be shown to have known that the gun was stolen." The court attached no significance to this fact, however, and imposed the recommended two-level increase.
Both Watson and Ashby had previous convictions that were excluded from consideration in the Guidelines calculation of their criminal histories. To account for these convictions, the presentence reports recommended that the court depart upward in its determination of a criminal history category. At the sentencing hearing, the court adopted this recommendation, raising Ashby's criminal history category from IV to V and raising Watson's from III to V. The court stated, "I am enhancing ... because of the conduct in this particular case and because I feel the criminal records do not adequately and sufficiently reflect the seriousness of the involvement in the criminal process and the conduct of the particular defendants involved." Transcript of Sentencing Hearing, No. 90-0319 at 41 (D.D.C. June 20, 1990).
The district court found that none of the three defendants had "accepted responsibility within the meaning of [section] 3E1.1." That section and its related commentary state in part:
(a) If the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct, reduce the offense by 2 levels.
* * * * * *
(c) A defendant who enters a guilty plea is not entitled to a sentencing reduction under this section as a matter of right.
Application Notes
* * * * * *
3. 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.
* * * * * *
5. 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.
The presentence reports for all three defendants, as well as the transcript of the sentencing hearing, indicate that the men admitted committing the offense to which they had pleaded guilty: carrying firearms as convicted felons. The question the district court had was whether they had truthfully accepted responsibility for their "related conduct," that is, for riding around together and wearing bullet-proof vests while carrying loaded firearms. It was on this ground that the district court denied them credit under section 3E1.1:
[T]he acceptance of responsibility provisions of the Guidelines are very explicit, that simply an admission of guilt is not sufficient.... [O]ne of the requirements is that there be a voluntary and truthful admission of the related conduct.
Now, the admission that these men have made is that at six o'clock at night in February the four of them were [riding] around [in] the car with loaded guns and bulletproof vests with the idea of going out and testing the vests.... [T]hat's an inherently incredible story. There isn't any rational person that I can conceive of who would accept that as a truthful story.
(Emphasis added.) The court further stated:
It seems to me it's just a totally incredible story and it seems to me almost making fun of the court by presenting that kind of an account, and that is not accepting responsibility. That's a wise guy answer and that's all it is.
Now, if those gentlemen wish to accept responsibility they have an obligation to give all related circumstances.
(Emphasis added.)
Ashby, Watson and Taylor attack the district court's refusal to grant them credit for acceptance of responsibility. They assert that the court's denial of section 3E1.1 credit arose from a misconstruction of the Guidelines and violated their fifth amendment right because it attempted to coerce explanations of their "related conduct" that would incriminate them for offenses with which they had not yet been charged. Under the appellants' argument, an explanation of their "related conduct" other than the one they gave would amount to self-incrimination and the district court therefore acted unconstitutionally by demanding one.
We take as the starting point for our analysis the deference appellate courts are to accord district court determinations under section 3E1.1. The commentary to this section stresses the district court's "unique position to evaluate a defendant's acceptance of responsibility," as a result of which the sentencing judge's determinations are "entitled to great deference on review." U.S.S.G. Sec. 3E1.1, comment. (n. 5) (emphasis added). With the defendant before him, the sentencing judge is unquestionably in a better position to assess contrition and candor than is an appellate court. Courts have held that these determinations are entitled, at the least, to the benefit of the clearly erroneous standard of review. See United States v. Watt, 910 F.2d 587, 589 (9th Cir.1990); United States v. Gordon, 895 F.2d 932, 937 (4th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 131, 112 L.Ed.2d 98 (1990); United States v. Moskowitz, 883 F.2d 1142, 1155 (2d Cir.1989); cf. United States v. Tellez, 882 F.2d 141, 143 (5th Cir.1989) ().
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