U.S. v. Watt, 88-3092
| Decision Date | 06 August 1990 |
| Docket Number | No. 88-3092,88-3092 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James Christopher WATT, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stephen R. Sady, Asst. Federal Public Defender, Portland, Or., for defendant-appellant.
Leslie K. Baker, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.
Appeal from the United States District Court for the District of Oregon.
Before BROWNING, ALARCON and KOZINSKI, Circuit Judges.
James Christopher Watt appeals from the district court's sentence of 46 months imprisonment and three years of supervised release for unarmed bank robbery, in violation of 18 U.S.C. Sec. 2113(a). The district court refused to reduce Watt's offense level by two points for his acceptance of responsibility, pursuant to United States Sentencing Commission, Guideline Manual (U.S.S.G.) Sec. 3E1.1. The district court based its decision on its findings that Watt had not voluntarily surrendered to the authorities or assisted in the recovery of the fruits and instrumentalities of the offense, factors made relevant under the commentary to section 3E1.1. Watt contends that the district court's application of section 3E1.1 violates his rights under the fifth and sixth amendments. In this appeal, we must consider the novel question whether a district court can construe constitutionally protected conduct against a defendant in determining his acceptance of responsibility pursuant to U.S.S.G. Sec. 3E1.1.
On December 22, 1987, a federal grand jury returned a two-count indictment against Watt, charging him in count one with armed bank robbery in violation of 18 U.S.C. Sec. 2113(a), (d), and in count two with the use of a dangerous weapon in the commission of a felony in violation of 18 U.S.C. Sec. 924(c)(1). At his arraignment on December 31, 1987, Watt entered a plea of not guilty.
On February 5, 1988, Watt withdrew his plea of not guilty to count one of the indictment, and entered a plea of guilty to the lesser included offense of unarmed bank robbery, in violation of 18 U.S.C. Sec. 2113(a). In exchange for Watt's plea of guilty and his stipulation that he possessed and displayed a firearm during the course of the robbery, the government agreed to "recommend that he receive the applicable number of points for acceptance of responsibility in computing his sentence[ ] under Section 3E1.1 of the Sentencing Guidelines."
In the presentence report, the probation officer recommended that Watt not receive a two-point reduction for acceptance of responsibility. The presentence report contains the following findings, conclusions, and recommendation:
At the time of his arrest for this robbery, he requested an attorney and would provide no statements to agents. According to the FBI agent handling this case, at no point did he cooperate in any fashion during the course of their investigation. He did not assist in recovering any of the money taken from the robbery and there was no effort on his part to make voluntary restitution prior to entering a plea of guilty. It is felt that granting a reduction for acceptance of responsibility would be basing it solely on his entry of a plea of guilty, which we feel is contrary to the guidelines.
Watt objected to this portion of the presentence report. In a letter to the probation officer, Watt's attorney informed the probation officer that "[w]hen arrested, Mr. Watt invoked his rights pursuant to Miranda and stated, 'I think I need to see an attorney.' " The letter also stated that The probation officer filed an addendum to the presentence report, pointing out that Watt and the government objected to paragraph 11. In recommending against the reduction for acceptance of responsibility, the probation officer stated that he was "unable to discern any actions taken by the defendant prior to entry of plea which would result in a reduction."
Watt's cooperation with the probation officer constituted an acceptance of responsibility and that his plea was timely, as it was entered prior to the district court's ruling on his motion to revoke the magistrate's detention order. The United States Attorney's office also objected to this portion of the presentence report. In a letter to the probation officer, Assistant United States Attorney Leslie Baker stated that Watt "expressed an early willingness to plead guilty and take responsibility for his actions" and that therefore the government considered his acceptance of responsibility to be "truthful and timely."
At the sentencing hearing, Watt's counsel argued that his client was entitled to the reduction for acceptance of responsibility, based on his willingness to make full restitution and his admissions to the probation officer. During the allocution, Watt informed the court that he was sorry for committing the offense.
In its oral findings regarding Watt's request for reduction of his offense level for acceptance of responsibility, the district court stated that Watt did not voluntarily surrender or offer his assistance to the authorities in recovering the fruits and instrumentalities of his crime. The district court noted that, while Watt manifested his responsibility to the probation officer, he did so only after "he was caught red-handed on a serious offense in which he was facing extremely heavy charges...." The district court refused to apply the two-point reduction for acceptance of responsibility. Watt timely appealed.
The district court calculated Watt's offense level under the Sentencing Guidelines at 22, thereby yielding a sentencing range for his criminal history category from 41 to 51 months. U.S.S.G. Sec. 2B3.1. Watt maintains that the district court should have reduced his offense level to 20, thereby yielding a sentencing range from 33 to 41 months. Watt raises challenges to the probation officer's recommendation and to the district court's imposition of sentence based on the fifth and sixth amendments and the doctrine of the separation of powers.
We review de novo the sentencing court's application of the Sentencing Guidelines. United States v. Howard, 894 F.2d 1085, 1087 (9th Cir.1990). We review the sentencing court's findings of fact under the clearly erroneous standard.
Watt contends that the probation officer's investigation of the facts surrounding Watt's crime and subsequent behavior violated his due process rights. He maintains that, as a member of the judicial branch, the probation officer "was improperly involved in the executive function of determining what facts to present and compromised its own neutrality." Instead, Watt asserts that the district court should have relied on the parties' presentation of the facts.
We recently rejected a similar claim in United States v. Belgard, 894 F.2d 1092 (9th Cir.1990). In resolving a due process objection to the investigation and recommendation function performed by probation officers under the Sentencing Guidelines, we quoted the Supreme Court's opinion in Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949):
United States v. Belgard, 894 F.2d at 1098 (quoting Williams v. New York, 337 U.S. 241, 250-51, 69 S.Ct. 1079, 1085, 93 L.Ed. 1337 (1949)). The law of the circuit as expressed in Belgard compels us to reject Watt's due process argument.
Watt also argues that the probation officer's function under the Sentencing Guidelines violates the doctrine of the separation of powers. In Belgard, we also considered a separation of powers attack on the role of the probation officer. 894 F.2d at 1096-98. In rejecting this claim, we noted that probation officers are vital to the proper functioning of the system. Id. at 1098. By undertaking an independent investigation, the probation officer serves "to provide the trial judge with as much information as possible in order to make an informed decision." Id. at 1097. "His report, however, is no more binding on the judge than the pre-Guideline reports were"; the sentencing court is still the ultimate decisionmaker. Id. Thus, we must reject Watt's separation of powers challenge.
Watt contends that the district court erroneously considered his pre-plea conduct in applying U.S.S.G. Sec. 3E1.1. By so doing, Watt argues that the district court impermissibly punished him for exercising his constitutional rights. Watt urges this court "to hold that a statement by a defendant after consultation with counsel of his acceptance of responsibility and remorse satisfies the requirement[s]" of section 3E1.1.
Section 3E1.1 of the Sentencing Guidelines provides:
(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.
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