US v. Ligon, Crim. No. CR 88-00013-01-P.

Citation716 F. Supp. 1009
Decision Date14 August 1989
Docket NumberCrim. No. CR 88-00013-01-P.
PartiesUNITED STATES of America, Plaintiff, v. Carl LIGON, Defendant.
CourtUnited States District Courts. 6th Circuit. United States District Court of Western District of Kentucky

Joseph M. Whittle, U.S.Atty., Randy Ream, Asst. U.S. Atty., Louisville, Ky., for plaintiff.

Larry G. Kelley, Wickliffe, Ky., for defendant.

MEMORANDUM

SILER, Chief Judge.

This matter has come to this Court on appeal from a sentence by Magistrate John M. Dixon, Jr. The standards on appeal are set out in 18 U.S.C. § 3742(f), which provides that this appeal is governed by 18 U.S.C. § 3742. Then, this Court reviews the case like a United States Court of Appeals and follows subsection (d), which states that: "The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous." Nonfactual or legal issues are not considered under the "clearly erroneous" standard, however.

The defendant was convicted on two counts of a violation of 16 U.S.C. § 668(a)1, of taking or possessing a bald eagle by pursuing, shooting, shooting at, wounding, molesting or disturbing a bald eagle on two different dates. After a trial before the Magistrate, the defendant was found guilty on both counts. The defendant owns property adjacent to the Ballard County Management Area. The defendant has pits for goose hunters on his property and allows hunters to use the property for fees. During January, 1988, the defendant was observed shooting at eagles over his property or in the vicinity of his property, as eagles prey upon wounded waterfowl. The defendant apparently did not want the eagles in the vicinity of his goose pits, as he felt that they scared the geese off his property.

The first issue which has been raised is whether the Magistrate should have given the defendant a two point credit for acceptance of responsibility under Section 3E1.1 of the Sentencing Commission Guidelines. The defendant was found guilty after a trial, in which he testified that he had received permission from Magistrate King to shoot at eagles and that he was shooting to scare away eagles from his goose pit. At the time of the sentencing hearing, the Magistrate heard from the Probation Officer, who recommended that the defendant be given credit for acceptance of responsibility. The Magistrate held that the prosecution had the burden of proof in the case and stated that it was a "sort of a toss up." Thus, both orally and in his written opinion, the Magistrate concluded that because the United States failed to meet its burden of proof, he accepted the statement by the Probation Officer that the defendant should receive a two point credit for acceptance of responsibility.

As the Sentencing Guidelines are new, cases interpreting the Guidelines are disseminated frequently, so the Magistrate cannot be blamed for not knowing about decisions issued subsequent to his ruling. In determining whether the Magistrate erred on the question of acceptance of responsibility, Section 3E1.1 of the Sentencing Commission Guidelines, Application Note 5, states:

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 and should not be disturbed unless it is without foundation.

Furthermore, the acceptance of responsibility for a crime is ordinarily a factual question, and enjoys the protection of the "clearly erroneous" standard. United States v. Wilson, 878 F.2d 921 (6th Cir. 1989), quoting United States v. Thomas, 870 F.2d 174, 176 (5th Cir.1989). However, the error was not in determining the credibility of the witnesses, but was in ruling that the United States had the burden of proof to show that the two point credit was inappropriate.

In a recent decision by Judge Wilkins, Chairman of the Sentencing Commission, in United States v. Urrego-Linares, 879 F.2d 1234 (4th Cir.1989), it was held that when the defendant wishes to lower his ultimate sentencing range, he has the burden of establishing by a preponderance of the evidence the applicability of the mitigating factor in question. Conversely, when the government seeks to enhance the sentencing range, it should bear the burden of proof. The Court of Appeals for the Sixth Circuit has apparently not ruled on this issue yet. However, two recent district court cases arrived at a contrary conclusion. See United States v. Lovell, 715 F.Supp. 854 (W.D.Tenn.1989); and United States v. Dolan, 701 F.Supp. 138 (E.D. Tenn.1988). As Urrego-Linares is the only case which has been rendered by a court of appeals on that point, this Court will follow it and finds that the Magistrate erred by not requiring the defendant to carry the burden of proof...

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4 cases
  • US v. Rogers, 88-2926.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 27, 1990
    ...879 F.2d 1234, 1238-39 (4th Cir.), cert. denied, ___ U.S. ___, 110 S.Ct. 346, 107 L.Ed.2d 334 (1989); United States v. Ligon, 716 F.Supp. 1009, 1011 (W.D.Ky.1989). However, qualification for the reduction may arise from a variety of things.11 In this case, following his conviction Rogers so......
  • U.S. v. Rogers, 88-2926
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 26, 1990
    ...879 F.2d 1234, 1238-39 (4th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 346, 107 L.Ed.2d 334 (1989); United States v. Ligon, 716 F.Supp. 1009, 1011 (W.D.Ky.1989). However, qualification for the reduction may arise from a variety of things. 11 In this case, following his conviction Rogers ......
  • U.S. v. Kirk
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • January 22, 1990
    ...and expressed by the district court in Dolan. 879 F.2d at 1239. Several district courts have followed suit. See United States v. Ligon, 716 F.Supp. 1009, 1011 (W.D.Ky.1989); United States v. Clark, No. SCR 88-60(1) (N.D.Ind. May 10, 1989) (unpublished decision available on Westlaw at 1989 W......
  • U.S. v. Moore, 90-5635
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 8, 1991
    ...Since the defendant could not show prejudice, the Ninth Circuit held, the issue need not be addressed. See also United States v. Ligon, 716 F.Supp. 1009, 1021 (W.D.Ky.1989). The issue of aggregation of the drug quantities need not be addressed by this court. Even if Moore were successful wi......

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