*1 987 1196, 1206 Nix, Cherry, independent the that It true Cir.1985). inevitably would concluded the Court search was discovery of the evidence have led to applied properly the in- illegal police conduct. during the underway discovery denying evitable doctrine Lar- majority opinion as the The dissent described suppress, though motion to even the sen’s ap- discovery exception holding inevitable the investigation inevitably that would have led inevitably have would plies when evidence discovery began of the evidence after the “by independent line of an been discovered illegal conduct. pursued investigation being that was constitutional violation occurred.” when the denying The order of the district court (Brennan, J., dissenting). We at Id. suppress motion to is AFFIRMED. Larsen’s Owens, noted the quoted language in room search motel unconstitutional police investigation that only the
“tainted ongoing.”
was
Nix nor our cases limit the inevitable discov- that
ery exception investigation to lines of only They already underway. require
were inevitably would investigation that
that UNITED STATES of independent of have be led to evidence Nix, violation. 467 U.S. the constitutional 443, 2508; Griffin, F.3d at S.Ct. Owens, although quoted we Harry SMITH, III, Defendant- majority’s characterization dissent’s Nix, holding rejected government’s No. 95-8120. cleaning by the motel argument that routine have inevitably would disclosed staff United States search, police drugs illegal in an found Eleventh Circuit. yet cleaning because the routine was discovery report- underway but because Oct. drugs by specula- ing of the the staff too be inevitable. investigation was The fact that another
already underway vio when a constitutional strong proof it was
lation occurred is
independent illegal investigation, However, it is
Nix illustrate. and Griffin after
possible begins an independent illegal to be See, e.g., United
investigation.
Kennedy, 61 F.3d 499-500 Thomas,
1995); (4th Cir.1992); Cir.1987).
Boatwright, Circuit, which in Broo
Even the Fifth held must independent investigation
kins that the conduct, ongoing illegal at the time of
be discovery ex recognized
later the inevitable when, example,
ception may apply also comes hypothetical independent
“the source being only
into after the misconduct.” Unit- *2 Weil, Amy Langway,
Richard M. Asst. Atlanta, GA, Atty., Plaintiff-Appel- lee. HATCHETT,
Before Chief TJOFLAT, ANDERSON, EDMONDSON, COX, BLACK, BIRCH, DUBINA, CARNES *, Judges **, HILL Judge. Senior Circuit DUBINA, Judge: I.
Appellant Harry III, (“Smith”) by grand was indicted a federal jury in the Northern District of one-count indictment. The indictment running a cheek-kiting Smith § scheme in óf 18 U.S.C. 1344. Ini- tially, plea Smith entered a of plea the indictment but later changed his guilty. probation officer recommended (“PSR”) presentence report her initial receive three-level offense level for responsibility of pursuant to U.S.S.G. 3E1.1.1 After Smith objected paragraphs to several probation officer withdrew her recom- mendation for the reduction. sought still a reduction for expressly court found that Smith had not responsibility request. denied Smith’s Geckler, Mildred H. Federal Defender Atlanta, GA, Program, for Defendant-Appel- determined the base lant. offense level was 15 and sentenced Smith to *Judge appointed (a) prior operation Frank M. Hull was after this mined of subsection orally argued, case was but was an active greater, mem- is level 16 or and the defendant has ber of the at the lime the case was decided. assisted authorities in the or participate She has elected in the decision- prosecution taking his own misconduct process. al steps: following one or more ** partici- (1) Senior U.S. Circuit Hill elected to timely providing complete information to pate pursuant decision to 28 U.S.C. government concerning own involve- 46(c). offense; ment in the or (2) timely notifying Acceptance Responsibility authorities of his inten- 3E1.1. plea thereby guilty, permit- tion to enter (a) If the defendant ac- ting preparing offense, to avoid ceptance for his de- permitting trial the court allocate its crease the offense level 2 levels. (b) efficiently, qualifies resources the defendant for a decrease (a), under subsection the offense level deter- decrease the offense level 1 additional level. (cid:127) (1997); Scrog by five L.Ed.2d 1058 followed imprisonment, months govern- gins, release.2 years supervised the correct of- out that held that: pointed then
ment
requiring a sentence
fense level
may not be denied a re-
[A] defendant
*3
judge
range.
the 24-30 month
level for
[in
duction
offense
a two-level
granted
his error
admitted
solely
responsibility] under
3E1.1
for ex-
responsibility so
acceptance of
ercising
right
challenge
legal
to
increase the
not be forced to
that he would
propriety
punishment
of his
under
imposed 18 month sentence:
sentencing guide-
criminal code and/or
decrease for
grant
I’ll
him the two-level
impermissible
....
to consider
[I]t
lines
is
Because
responsibility....
challenge
legal propriety
to the
of a
sen-
already imposed the 18 months’
I’ve
sentence.
change it
go
I
to
back and
tence and hate
Smith,
language,
at 352.
this
With
reducing
increase it.
don’t mind
panel opinion
went too far. Our case law
it.
I hate to increase
but
permits
deny a
a
a district court to
defendant
(R3-27-28).
court’s decision
district
§ 3E1.1
on conduct
reduction under
based
finding
its
not based on reconsideration
responsibility,
inconsistent with
responsibility.
accept
that Smith failed
asser-
even when that conduct includes the
clearly
this
The record
right.
a
United
tion of
constitutional
See
on the court’s reluctance
award was based
(11th
Jones,
v.
934 F.2d
above the 18
increase Smith’s
Cir.1991);
Henry,
United
which the court
imprisonment
month term
addition,
In
friv-
Thus,
received
imposed.
had
legal challenges
suggest
olous
could
to the
that he did not deserve.
a two-level reduction
has not ac-
district court that the defendant
appealed.
Surprisingly, he
cepted responsibility for his conduct. There-
fore,
that a district court
consid-
hold
the case to
panel
A
of this court remanded
challenges along with
er the nature of such
that the dis
court. Concerned
the district
in the case when
the other circumstances
1.1(b)
deny
3E
trict court’s decision
a
should re-
determining whether
defendant
exercising
on Smith
reduction was based
acceptance of
a sentence reduction for
ceive
PSR,
in
object to the
right
wheth
court to consider
structed the district
one-
to an additional
er Smith was entitled
ease, although Smith
present
In the
responsibili
acceptance level reduction for
objections
to the PSR
referred to his
3El.l(b).
ty under U.S.S.G.
objections
legal arguments”
on
“legal
based
Cir.1997) (as
Smith,
These guilt. a of factual amounted to denial II. the ease to panel opinion remanded of whether a de The determination whether to determine the district accep adequately has fendant one-level entitled to an additional Smith was flexible, fact sensi tance of no need to remand States, We see reduction. inquiry. See Joiner resentencing. received Cir.), case cert. de - prejudice no suffered nied, -, windfall and 117 S.Ct. $269,049.40 imposed a pay the amount of lion in ordered that Smith restitu- 2. The court also court’s error.3 from the district
Accordingly, we affirm Smith’s sentence. UNITED STATES
AFFIRMED.
HILL, Judge, concurring Senior separately, in which WOODS, Gregory L. Defendant- joins: opinion prepared for the court Yet, No. 96-6545 is a fine one. it seems to Dubina Non-Argument that it has more in it than does the case.1 me Calendar. equally propositions Two seem to *4 United States Court of be in contest. Eleventh Circuit First, I if continue to believe that a defen- acts, guilt all dant admits omissions Nov. doings charged against or other him the may government, he not be denied whatever responsi- results from
benefit because,
bility merely his law-
yer government’s lawyer argues that the application guide-
mistaken as to the
lines to these admissions.
Second, hand, and on the other a defen- guilty plea
dant enter and admit all facts, alleged yet argue
that, indeed, he is not case,
offense. In this sentencing judge
may deny a benefit which would have fol-
lowed concerned,
Insofar as the law is I believe all in agreement. we are panel thought governed this case to be proposition, the first above. As read
I believe the full court holds that this case proposition.
invokes the second question
So be it. It ais to be ascertained
by reading Being the record. confident that
the full court can read better than one of its
panels, I concur. special $50.00 assessment. trict court did not sentence Smith within the guideline range.
3. We note from the record in this case that the
government
appeal.
did not
We assume that is
Or,
Logan
as better said
Chief Justice
E.
government,
because the
plea agreement
under the terms of the
'
Supreme
Bleckley
agreed
to recom-
Ford,
(1891):
Lukens v.
87 Ga