United States v. Downing, 17-6058

In August 2016, Brian Lee Downing handed a bank teller a note demanding money that referenced the word “DIE,” received $4,105, and fled; he was arrested a week later.
Downing pled guilty without a plea agreement to bank robbery; while detained awaiting sentencing he conspired with his wife and mother to smuggle cigarettes, a lighter, a syringe, and 50 hydromorphone pills into jail.
The PSR designated Downing a career offender, calculated an offense level of 32, and placed him in criminal-history category VI, producing a Guidelines range of 210–262 months (bounded by the 20-year statutory maximum to 210–240 months).
The probation officer declined to award a two-level reduction for acceptance of responsibility under USSG §3E1.1 because Downing continued criminal conduct after his guilty plea.
The district court denied the acceptance adjustment, sentenced Downing to 240 months (upper end of the applicable Guidelines range, concurrent to a separate 24-month sentence), and this appeal followed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Downing was entitled to a two-level acceptance-of-responsibility reduction under USSG §3E1.1	Downing argued his speedy plea conserved resources and his post-plea misconduct stemmed from addiction, not lack of remorse	Government/district court argued Downing’s conspiracy to smuggle contraband after his plea shows continued criminal conduct inconsistent with acceptance	Denial affirmed: post-plea unrelated criminal conduct may be considered; no clear error in declining the adjustment
Whether the 240-month sentence was substantively unreasonable under §3553(a)	Downing argued the robbery was out-of-character, nonviolent in nature, and driven by substance abuse	Government argued the robbery was intimidating/violent by definition and consistent with extensive violent and drug-related criminal history	Sentence affirmed as substantively reasonable and within the advisory Guidelines; no abuse of discretion

United States v. Gauvin, 173 F.3d 798 (10th Cir. 1999) (acceptance-of-responsibility is a factual determination reviewed for clear error)
United States v. Battles, 745 F.3d 436 (10th Cir. 2014) (defendant bears burden by preponderance to show entitlement to §3E1.1 reduction)
United States v. McDonald, 22 F.3d 139 (7th Cir. 1994) (post-offense unrelated criminal conduct can indicate lack of remorse undermining acceptance)
United States v. Prince, 204 F.3d 1021 (10th Cir. 2000) (post-plea violent conduct may be considered in assessing acceptance of responsibility)
United States v. Craig, 808 F.3d 1249 (10th Cir. 2015) (substantive reasonableness review is deferential; within-Guidelines sentences carry a presumption of reasonableness)