U.S. v. Wells

• Decision Date: 26 August 1998
• Docket Number: No. 98-1928,98-1928
• Citation: 154 F.3d 412
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James WELLS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 412

154 F.3d 412

UNITED STATES of America, Plaintiff-Appellee, v. James WELLS, Defendant-Appellant.

No. 98-1928.

United States Court of Appeals Seventh Circuit.

Argued Aug. 4, 1998.

Decided Aug. 26, 1998.

Andrew B. Baker, Jr. (argued), Office of the United States Attorney, Dyer, IN, for Plaintiff-Appellee.

Gary T. Bell (argued), Spangler, Jennings & Dougherty, Merrillville, IN, for Defendant-Appellant.

Before POSNER, Chief Judge, and KANNE and DIANE P. WOOD, Circuit Judges.

POSNER, Chief Judge.

The defendant pleaded guilty to armed robbery and related offenses and was sentenced to 293 months in prison (almost 25 years). He complains about the district judge's refusal to give him a 3-level sentencing discount for acceptance of responsibility, U.S.S.G. § 3E1.1, and the judge's decision to give him a two-level increase for obstruction of justice. § 3C1.1.

Wells pleaded guilty without a plea agreement and does not deny his culpability or plead extenuating circumstances; and ordinarily these circumstances would entitle him to the acceptance of responsibility discount. § 3E1.1, Application Notes 1 and 2. The unusual further circumstance here is his refusal to disclose the whereabouts of the loot. The robbery netted him almost $700,000. So far as appears, he spent about $30,000 on a new car and other goodies, but the rest is unaccounted for. If he gambled it away or otherwise dissipated it, he would (as we shall see) undoubtedly say so. He does not say so. The inference is irresistible, and not even denied by his lawyer, that he has squirreled it away. His lawyer claims that this doesn't matter. The defendant fully and freely acknowledges his guilt of the crime of which he was charged. He therefore accepts full responsibility for the crime, and no more is required.

This argument reflects a deep misunderstanding of the concept of acceptance of responsibility. The purpose of the acceptance of responsibility discount is not only to induce guilty pleas, but also to identify defendants who, having demonstrated sincere remorse for their crime, are less likely either to delay the course of justice or to engage in further criminal activity when they complete their sentence. See United States v. Hammick, 36 F.3d 594, 600 (7th Cir.1994); United States v. Beserra, 967 F.2d 254, 256 (7th Cir.1992); United States v. De Leon Ruiz, 47 F.3d 452, 455 (1st Cir.1995); United States v. Henry, 883 F.2d 1010 (11th Cir.1989) (per curiam); see generally Michael M. O'Mear "Remorse, Cooperation, and 'Acceptance of Responsibility': The Structure, Implementation, and Reform of Section 3E1.1 of the Federal Sentencing Guidelines," 91 Nw. U.L.Rev. 1507 (1997). Talk is cheap, and so Beserra emphasizes that acceptance of responsibility is to be inferred from deeds, not from weepy mea culpas at sentencing. 967 F.2d at 256. (Judges fool themselves if they think they can infer sincerity from rhetoric and demeanor.) A guilty plea is a deed. And so is voluntary restitution. Where it is feasible, its refusal, demonstrating as it does a desire to retain the fruits of the crime, blocks any inference of remorse or repentance. The remorseful or repentant criminal would want to do everything possible to rectify the harmful consequences of his crime, and so if he still has any of the loot he will return it. Thus Application Note 1(c) counts voluntary restitution as a favorable circumstance for the granting of the acceptance of responsibility discount.

If authority is needed for what strikes us as a self-evident proposition, it can be found in Claudius's prayer soliloquy in Hamlet (Act III, sc. 3, ll. 36-72). By murdering Hamlet's father, the king of Denmark, Claudius had become king and also had married the king's widow. He is frank in acknowledging his crimes. "O, my offense is rank! It smells to heaven." He tries to pray for forgiveness, but realizes that this is impossible because

... what form of prayer

Can serve my turn? "Forgive me my foul murder"?

That cannot be, since I am still possessed

Of those effects for which I did the murder:

My crown, mine own ambition, and my queen.

May one be pardoned and retain th'offense?

The answer is "no," and it answers Wells's prayer for (partial) forgiveness as well. For he is still possessed of those effects for which he did the robbery.

The background to the alleged obstruction of justice is as follows. When Wells learned that there was a warrant out for his arrest, he turned himself in at a police station in Indiana, where the robbery had occurred. The police asked him what had happened to the money. He said that all of it except the $30,000...