United States of America v. Delwin T. Cooper
No. 20-1183
United States Court of Appeals For the Eighth Circuit
Submitted: January 15, 2021; Filed: May 25, 2021
Bеfore SMITH, Chief Judge, KELLY and ERICKSON, Circuit Judges.
Appeal from United States District Court for the Western District of Missouri - Kansas City
SMITH, Chief
Delwin T. Cooper pleaded guilty, without a plea agreement, to being a felon in possession of a firearm, in violation of
I. Background
A federal grand jury indicted Cooper for being a felon in possession of a firearm. Law enforcement arrested Cooper after a report was made of an individual boarding a city bus with a firearm. At the time of his arrest, Cooper was “under criminal justice sentences, parole, through Jackson County, Missouri.” Presentence Investigation Report (PSR) at 12, United States v. Cooper, No. 4:19-cr-00167-HFS (W.D. Mo. 2019), ECF No. 20.
Approximately three months after his indictment on the firearms charge, while in pretrial custody at the CoreCivic-Leavenworth Detention Center, Cooper and three other inmates were involved in an assault
Thirteen days after the assault on Duncan, Cooper pleaded guilty, without a written plea agreement, to an information charging him with belong a felon in possession of a firearm.2 The district court (1) found that Cooper entered the plea knowingly and voluntarily, (2) accepted Cooper’s plea, and (3) ordered the preparation of a PSR.
The PSR declined to give Cooper a two-level reduction for acceptance of responsibility “[b]ased on [Cooper’s] criminal conduct while incarcerated at CoreCivic-Leavenworth Detention Center.” PSR at 5. The PSR further explained:
Pursuant to the Commentary under §3E1.1, Application Note 1(B), voluntary terminаtion or withdrawal from criminal conduct or associations is noted as an appropriate consideration in determining whether a defendant qualifies for an adjustment of responsibility. As noted in the Pretrial Adjustment section, the defendant conspired with others to commit aggravated battery and assault while awaiting trial for the instant offense. Based on the defendant’s conduct, no acceptance of responsibility reduction has been applied. Pursuant to Application Note 3, an entry of a plea of guilty prior to the commencement of trial combined with truthfully admitting the conduct comprising of the offense of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which he is accountable under §1B1.3 (Relevant Conduct), will constitute significant evidence of acceptance of responsibility. However, this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility. A defendant who enters a guilty plea is not entitled to an adjustment under this section as a matter of right. Lastly, pursuant to Application Note 5, the sentencing judge is in a unique position to evaluate a defendant’s acceptance оf responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review.
Id. at 4–5 (emphasis omitted). Cooper objected to the PSR’s recommended denial of the acceptance-of-responsibility reduction.
Cooper’s attorney argued that the government failed to prove that Cooper was the individual who asked the guard to open Cell 208; alternatively, counsel argued that even if Cooper did ask the guard to open Cell 208, insufficient evidence existed of Cooper’s awareness that the other inmates were going to rush in and stab Duncan upon the cell’s opening. Cooper’s attorney stressed that Cooper had “timely” pleaded guilty to the firearms offense and “admitted to a factual basis for the plea.” Id. at 52. By doing so, counsel asserted, Cooper “save[d] the Court resources.” Id. at 53. Counsel also cited the “inherent value” of “accept[ing] responsibility of the crime you’re charged with.” Id.
The district court denied Cooper’s request for the acceptance-of-responsibility reduction. First, the court accepted the government’s theory that Cooper “cause[d] the cell door to be opened” and thus facilitated the assault on Duncan. Id. The court found it “fairly clear that it was planned that the other individuals . . . would go into the cell.” Id. While the court acknowledged there was “no proof that Mr. Cooper knew what was . . . going to happen,” the court found by a preponderance of the evidence “that the persons entering the cell wеre going to take some action that was harmful to . . . the inmate.” Id. at 53–54.
Second, the court addressed “whether acceptance of responsibility should be dated from the time of the plea.” Id. at 54. “[A]cceptance of responsibility,” the court observed, “has to start at a certain time.” Id. It deemed “the time of the plea” as “critical.” Id. However, the court “recognize[d] that there are circumstances where you can backdate the misconduct . . . and use that to say . . . that the defendant did not have the appropriate attitude to . . . grant the credit for acceptance of responsibility.” Id. The court acknowledged the existence of case law in which courts considered the defendant’s conduct “after the time of the arrest” but prior to entry of a guilty plea in denying acceptance of responsibility. Id. at 55. “[B]ecause of the seriousness of . . . the events, [the court] . . . rule[d] with the probation office in denying . . . acceptance of responsibility.” Id.
The court calculated Cooper’s Guidelines range as 41 to 51 months’ imprisonment. If the court had granted Cooper a reduction for acceptance of responsibility, Cooper’s Guidelines range would have been 30 to 37 months’ imprisonment. Cooper’s attorney argued that a 36-month sentence was appropriate. By contrast, the government argued for a 51-month sentence based on Cooper’s extensive criminal record and the background of his felon-in-possession offense.
The district court sentenced Cooper to 51 months’ imprisonment. Although the court indicated that it might otherwise have reduced Cooper’s sentence by six months for the time that Cooрer spent in state custody while his federal charge was pending, it concluded that such reduction was inappropriate because of the seriousness of Cooper’s pre-plea misconduct. The court acknowledged that this pre-plea conduct was “unrelated to [the] felon in possession
II. Discussion
On appeal, Cooper argues that the district court erroneously denied him a reduсtion for acceptance of responsibility under U.S.S.G. § 3E1.1 based solely on his pre-plea conduct. According to Cooper, the starting point for determining a defendant’s eligibility for acceptance of responsibility is the date that the defendant pleads guilty. Cooper maintains that a district court is foreclosed from considering any of a defendant’s pre-plea conduct in determining whethеr to grant an acceptance-of-responsibility reduction.
“We review the court’s interpretation and application of the Guidelines de novo and its factual findings for clear error.” United States v. Thunderhawk, 799 F.3d 1203, 1209 (8th Cir. 2015) (reviewing denial of reduction for acceptance of responsibility). “The commentary [to the Guidelines] is an authoritative guide to the meaning of a guideline, and the failure to follow interpretive and еxplanatory commentary could result in reversible error.” United States v. Mooney, 425 F.3d 1093, 1100–01 (8th Cir. 2005) (cleaned up).
“U.S.S.G. § 3E1.1(a) provides for a two-level reduction if the defendant ‘clearly demonstrates acceptance of responsibility for [his] offense.’” United States v. Davis, 875 F.3d 869, 875 (8th Cir. 2017) (quoting U.S.S.G. § 3E1.1(a)). It is the defendant’s burden to prove his entitlement to the reduction. Id. (citing U.S.S.G. § 3E1.1 cmt. n.2). We afford “great deference” to the sentencing judge’s determination of whether to grant the reduction because of the judge’s “unique position to evaluate a defendant’s acceptance of responsibility.” Id. (quotation omitted).
A defendant’s “guilty plea and . . . truthful admission of the conduct comprising the offense of conviction [constitutes] significant evidence in favor of an award of the acceptance-of-responsibility reduction under application note 3 to Guidelines section 3E1.1.” United States v. William, 681 F.3d 936, 939 (8th Cir. 2012).3 But “the application note also states that ‘this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility’ and that ‘[a] defendant who enters a guilty plea is not entitled to an adjustment under this section as a matter of right.’” Id. (alteration in original) (quoting U.S.S.G. § 3E1.1 cmt. n.3).
“The key issue is whether the defendant has shown ‘a recognition and affirmative responsibility for the offense and sincere remorse.’” United States v. Nguyen, 52 F.3d 192, 194 (8th Cir. 1995) (quoting United States v. Knight, 905 F.2d 189, 192 (8th Cir. 1990)). The reduction’s purpose is to “distinguish[] a sincerely remorseful defendant from a defendant not manifesting penitence.” Knight, 905 F.2d at 192. “This Court has consistently denied the acceptance-of-responsibility reduction to defendants whose conduct belies their claims of contrition.” Nguyen, 52 F.3d at 194.
The commentary to § 3E1.1 sets forth a non-exhaustive list of factors for a court to consider in determining whether to grant a reduction for acceptance of responsibility.
Here, the district court denied Cooper acceptance of responsibility “[b]ased on [Cooper’s] criminal conduct while incarcerated at CoreCivic-Leavenworth Detention Center.” PSR at 5. Under our precedent, the court was entitled to rely on such criminal conduct in denying acceptance of responsibility. The question, however, is whether that criminal conduct had to occur subsequent to the entry of Cooper’s guilty plea for the district court to have properly considered it.
Cooper argues that the plain language of § 3E1.1 bars a sentencing court’s consideration of any pre-plea conduct in detеrmining whether a defendant has accepted responsibility. “Most of the acceptance-of-responsibility inquiry focuses on the defendant’s conduct through the time he pleads guilty.” United States v. Stapleton, 316 F.3d 754, 757 (8th Cir. 2003). However, “nothing in section 3E1.1 prohibits [a court from] taking . . . into account” “conduct [that] occurred before [the defendant] pleaded guilty.” United States v. Cort, 45 F.3d 434, 1994 WL 718488, at *1 (8th Cir. 1994) (per curiam); see also United States v. Harris, 38 F.3d 95, 99 (2d Cir. 1994) (“There is no basis in law or logic for a sentencing judge to limit the evidence only to what defendant did after his plea of guilty. All his conduct before the plea may be relevant to a defendant’s acceptance of responsibility.”). Moreover, “[t]here is nothing in [§ 3E1.1’s] application note or elsewhere in the guidelines to suggest a temporal limit on” “whether the defendant voluntarily has terminated or withdrawn from criminal conduct or associations.” United States v. McLaughlin, 378 F.3d 35, 40 (1st Cir. 2004) (quotation omitted). In addition, “the non-exclusivity оf the list [of factors to consider in determining whether to apply the reduction] suggests that the sentencing court should look to all relevant data to reach a just result.” Id. Indeed, “[w]e have previously upheld the denial of section 3E1.1 reductions based on pre-indictment factors.” United States v. Black Bull, 14 F. App’x 730, 731 (8th Cir. 2001) (per curiam).
Consistent with these legal principles, a review of our precedent shows that we have upheld district courts’ denials of aсceptance of responsibility based on defendants’ pre-plea conduct. See, e.g., United States v. Winters, 411 F.3d 967, 972–74 (8th Cir. 2005) (denying acceptance-of-responsibility reduction based upon defendant’s pretrial disciplinary problems and a letter the defendant wrote from jail threatening others); Black Bull, 14 F. App’x at 731 (rejecting defendant’s argument that “the [district] court clearly
Accordingly, we hold that the district court did not err in denying Cooper a reduction for acceptance of respоnsibility under U.S.S.G. § 3E1.1 based on his pre-plea criminal conduct while incarcerated at CoreCivic-Leavenworth Detention Center.
III. Conclusion
We affirm the judgment of the district court.
United States of America v. Delwin T. Cooper
No. 20-1183
United States Court of Appeals For the Eighth Circuit
KELLY, Circuit Judge, concurring.
I agree that this court has not recognized a temporal limitation to USSG § 3E1.1, and we have upheld the denial of a reduction for acceptance of responsibility based on conduct a defendant engaged in before pleading guilty. See, e.g., United States v. Keester, 70 F.3d 1026, 1027–28 (8th Cir. 1995). In light of our precedеnt, Cooper’s argument to the contrary is unavailing. But I write separately to highlight that courts must conduct a fact-intensive and defendant-specific inquiry to determine whether the conduct forming the basis of a denial of a § 3E1.1 reduction is “inconsistent with” acceptance of responsibility, USSG § 3E1.1 comment. (n.3). See, e.g., United States v. Ponec, 163 F.3d 486, 490 (8th Cir. 1998) (explaining the decision to deny a reduction for acceptance of responsibility “is highly fact-intensive, and addresses itself to the sound discretion of the District Court”). Such conduct must also outweigh any “significant evidence” of acceptance, such as the “[e]ntry of a plea of guilty prior to . . . trial combined with truthfully admitting the conduct comprising the offense of conviction.” USSG § 3E1.1 comment. (n.3); see also United States v. Hollis, 823 F.3d 1045, 1047 (6th Cir. 2016) (applying a “two-step inquiry”—“[h]as [the defendant] demonstrated significant evidence of acceрtance of responsibility, and if so, is that evidence outweighed by conduct inconsistent with such acceptance?”—to determine whether a defendant qualifies for a reduction under § 3E1.1).
Not every incident of wrongful conduct, whether pre- or post-guilty plea, is a reflection of an individual’s failure to demonstrate acceptance of responsibility as that term is defined in § 3E1.1. See, e.g., United States v. Nguyen, 212 F. Supp. 2d 1008, 1016 n.5 (N.D. Iowa 2002) (finding that
Ultimately, because the Guidelinеs act as “the sentencing court’s starting point and initial benchmark,” Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016), the decision on whether to grant a reduction in a defendant’s offense level for acceptance of responsibility can make a considerable difference in the advisory Guidelines range the defendant faces at sentencing. In many cases, this reduction is one of the only discernible benefits a defendant can earn in еxchange for giving up the right to a jury trial and pleading guilty. If a sentencing court declines to grant the reduction because it concludes that certain wrongful conduct outweighs “significant evidence” of a defendant’s acceptance of responsibility, that finding must be supported by facts specific to the defendant’s case and circumstances and, like any adjustment under the Guidelines, be sufficiently explained on the record.