USA v. Taliaferro

• Decision Date: 01 May 2000
• Docket Number: No. 99-3612,99-3612
• Citation: 211 F.3d 412
• Parties: (7th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PAUL TALIAFERRO, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 412

211 F.3d 412 (7th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PAUL TALIAFERRO, Defendant-Appellant.

No. 99-3612

In the United States Court of Appeals For the Seventh Circuit

Argued March 1, 2000

Decided May 1, 2000

Appeal from the United States District Court for the Western District of Wisconsin. No. 99 CR 42--John C. Shabaz, Chief Judge.

Before ESCHBACH, COFFEY and Diane P. WOOD, Circuit Judges.

COFFEY, Circuit Judge.

While Paul Taliaferro was serving a 70-month sentence for armed robbery, he pled guilty to possession of marijuana by an inmate in violation of 18 U.S.C. sec. 1791(a)(2) and (d)(1)(B). As part of the plea agreement, he stipulated to assaulting a federal officer in violation of 18 U.S.C. sec. 111(a)(1) after throwing a cup of urine into a prison guard's face, and upon his chest and arm. Taliaferro was sentenced to a consecutive 30-month term of imprisonment, three years' supervised release, and special assessment of $100. On appeal, Taliaferro challenges: 1) the denial of a two- level downward adjustment for acceptance of responsibility; and 2) the three-level upward adjustment he received because the assault involved physical contact with the prison guard.

We affirm.

In September 1998, Taliaferro, while confined, was visited in prison by his girlfriend, Deanna Gary. Believing that Gary had slipped contraband to Taliaferro during a kiss, prison authorities placed him in a dry-cell.¹ After three days in the dry-cell, Taliaferro "passed" a plastic bag containing 0.72 grams of marijuana. Upon interrogation, Taliaferro claimed that he received the marijuana from a fellow inmate, not from Gary.

After Jones passed the plastic bag of marijuana, he was placed in a disciplinary segregation unit. This "discipline" apparently had little effect on Taliaferro because, while in the segregation unit, he threw a cup of urine on a prison guard--striking him in the face, chest, and arm.

On July 21, 1999, Taliaferro pled guilty to a one-count indictment charging him with possession of marijuana by an inmate. In the plea agreement, Taliaferro also stipulated to assaulting a federal officer, in violation of 18 U.S.C. sec. 111(a)(1), by throwing a cup of urine into the guard's face, and upon his chest and arm. Under U.S.S.G. sec. 2A2.4, the assault carries a base offense level of six and, if the "conduct involved physical contact," a three-level upward adjustment.² As part of the plea agreement, the government agreed to recommend that Taliaferro receive a reduction in offense level for acceptance of responsibility. However, the plea agreement also recited that "the United States [was] free to withdraw this recommendation if the defendant . . . engages in any conduct between the date of this plea agreement and the sentencing hearing which is inconsistent with acceptance of responsibility."

On August 10, 1999, before his sentencing hearing, Taliaferro filed a two million dollar "Claim for Damage, Injury or Death" against the Bureau of Prisons alleging that, although he was guilty of possessing marijuana, he had received the drugs from another inmate rather than from Gary. The prison claim form that Taliaferro filed warned him that he could be subjected to civil and criminal penalties for filing a false claim. In the complaint, Taliaferro alleged that he had wrongfully been denied visits with Gary since the marijuana incident and that this had caused him mental and emotional injury. But, just two weeks after he filed his tort claim, Taliaferro admitted to his probation officer that it was his girlfriend, Gary, who had given him the marijuana.

Based on the belief that Taliaferro's filing of a two million dollar tort claim in which he denied receiving the marijuana from Gary was inconsistent with the proposition that he accepted responsibility for his conduct, the government withdrew its recommendation that Taliaferro receive a reduction for acceptance of responsibility.

At sentencing, the government objected to the recommendation in the Presentence Investigation Report (PSR) that Taliaferro receive a downward adjustment for acceptance of responsibility.³ The judge agreed that Taliaferro was not entitled to a downward adjustment, stating that Taliaferro's claim against the Bureau of Prisons amounted to a falsehood that demonstrated a lack of acceptance of responsibility. The sentencing judge went on to state that even if the government had not withdrawn its recommendation he would have denied the reduction for acceptance of responsibility on his own. The trial judge also rejected Taliaferro's argument that throwing a cup of urine did not amount to "physical contact" with the guard and adjusted Taliaferro's base offense level by three levels under section 2A2.4(b)(1), stating that throwing a cup of urine "certainly must be considered an act of physical contact."

On appeal, Taliaferro argues that he was entitled to a downward adjustment for acceptance of responsibility because, even though he filed a false claim and lied to the court, he demonstrated his acceptance by pleading guilty, admitting the facts underlying his drug offense at sentencing, and withdrawing his tort claim. That is, according to Taliaferro, the fact that he was honest at the time of sentencing should provide sufficient grounds for reducing his offense level for acceptance of responsibility. Contrary to Taliaferro's assertions, acceptance of responsibility requires much more than mere honesty at his sentencing hearing.

This court reviews a district court's finding for clear error as to whether a defendant has accepted responsibility for his criminal activity. See United States v. Sierra, 188 F.3d 798, 804 (7th Cir. 1999). The mere fact that a defendant enters into a plea agreement is insufficient under the guidelines and caselaw to entitle him to a downward adjustment; rather, the defendant has the burden of demonstrating that he has actually accepted responsibility for his actions. See United States v. McIntosh, 198 F.3d 995, 999 (7th Cir. 2000). We have long held that a defendant does not demonstrate sufficient acceptance of responsibility when he, as Taliaferro did in this case, frivolously contests or falsely denies relevant conduct. See United States v. Larkin, 171 F.3d 556, 558 (7th Cir.), cert. denied, 120 S. Ct. 198 (1999).

Based on the record, we are convinced that the district court's conclusion that Taliaferro should not receive a reduction for acceptance of responsibility was not clearly erroneous. First, Taliaferro filed a fraudulent two-million dollar "Claim for Damage, Injury or Death" knowing that the government would withdraw its recommendation that he receive a downward departure for acceptance of responsibility. And, as we have long held, lying, as the filing of the false tort claim must be considered, is, in and of itself, sufficient grounds for denying acceptance points. See United States v. Gage, 183 F.3d 711, 717 (7th Cir. 1999) (false representation at plea hearing); United States v. Colbert, 172 F.3d 594, 597 (8th Cir. 1999) (defendant sent letter to district court partly denying stipulated conduct); United States v. Dillard, 43 F.3d 299, 306 (7th Cir. 1994) (submission of false statement to probation officer). Furthermore, we note that the fact that Taliaferro waited until sentencing to inform the judge that his tort...