Impact on a Defendant's Refusal to Debrief on Federal Sentencing

Facts:

C.C. has pleaded guilty to a drug-related, Federal offense but has refused to discuss the circumstances surrounding his offense—including the source of the drugs involved in the offense—with the United States Attorney because he is afraid the government will not be able to protect him. Because he will not discuss the circumstances surrounding his offense with the United States Attorney, the government argues C.C. should not receive the three-point reduction section 3E1.1 of the Federal Sentencing Guidelines provides for acceptance of responsibility.

Issue:

Can the trial court refuse to reduce C.C.’s offense level for acceptance of responsibility because he refuses to reveal the source of the drugs involved in his offense out of fear that the government will not be able to protect him?

Short Answer:

Yes. If a defendant timely pleads guilty to his offense, truthfully admits to the circumstances surrounding his offense—including the source of the drugs involved in the offense, and admits to or, at least, does not falsely deny additional relevant conduct for which he is accountable under section 1B1.3 of the Federal Sentencing Guidelines, there is sufficient evidence to reduce the defendant’s offense level for acceptance of responsibility. C.C. has pleaded guilty and does not falsely deny any relevant conduct for which he is responsible. However, because he has not revealed the source of the drugs involved in his offense, C.C. has not truthfully admitted to the conduct comprising his offense. Therefore, C.C. will not receive a reduction in his offense level for accepting responsibility.

Discussion:

If a defendant who is guilty of a Federal crime accepts responsibility for his actions, the trial court may decrease his offense level up to three levels. U.S.S.G. § 3E1.1 (2006). Acceptance of responsibility is a question of fact, United States v. Medina-Anicacio, 325 F.3d 638, 647 (5th Cir. 2003) (citing United States v. Spires, 79 F.3d 464, 467 (5th Cir. 1996)), and the defendant bears the burden to prove he has accepted responsibility for his actions. Medina-Anicacio, 325 F.3d at 647 (citing United States v. Flucas, 99 F.3d 177, 180 (5th Cir. 1996)).

Accepting responsibility requires a defendant to do more than merely plead guilty to an offense. Spires, 79 F.3d at 648 (citing Flucas, 99 F3d at 180; U.S.S.G. § 3E1.1, comment n.3). In addition to pleading guilty, a defendant must “truthfully admit[] [the] conduct comprising the offense” and either “truthfully admit[] or not falsely deny[] any additional relevant conduct for which he is accountable under [U.S.S.G.] § 1B1.3. . . .” U.S.S.G. § 3E1.1, comment n.3. But the defendant does not need to volunteer additional information or “affirmatively admit relevant conduct” beyond the scope of the offense for which he is convicted to receive the reduction in his offense level for accepting responsibility. Salinas, 122 F.3d at 7. And if the defendant pleads guilty, admits the conduct comprising the offense, and admits or does not falsely deny relevant conduct for which he is accountable, there is sufficient evidence allowing a trial court to grant the defendant a reduction in his offense level. U.S.S.G. § 3E1.1, comment n.3; Medina-Anicacio, 325 F.3d at 648 (citing United States v. Salinas, 122 F.3d 5, 7 (5th Cir. 1997)). Nevertheless, the conduct comprising the offense of a defendant pleading guilty to a drug offense includes revealing the source of the drugs involved in the offense, and the refusal to reveal the source of drugs equates with a refusal to truthfully admit to the conduct comprising the offense. See United States v. Tellez, 882 F.2d 141, 143 (5th Cir. 1989); United States v. Becerra, 2007 WL 1202777 *1, *1 (5th Cir. April 24, 2007) (not designated for publication). In United States v. Tellez, Tellez attempted to enter the United States from Mexico with large quantities of marijuana hidden in his vehicle. 882 F.2d 141, 142 (5th Cir. 1989). Even though he pleaded guilty, Tellez refused to reveal the source of the marijuana he attempted to smuggle into the United States. Id. at 143. The court reasoned Tellez’s refusal to reveal the source of the marijuana was a failure to admit to the conduct comprising his offense. Id. Therefore, there was not sufficient evidence to hold Tellez had accepted responsibility for his offense. Id.

And just last April, the Fifth Circuit reaffirmed the need for a defendant to reveal the source of the drugs involved in his offense. In Unites States v. Becerra, Becerra pleaded guilty to possession of marijuana with the intent to distribute but refused to identify the source of the drugs involved in his offense. 2007 WL 1202777 at *1. Because he would not identify the source of the marijuana, the court held Becerra had “failed to truthfully admit all the conduct comprising his offense.” Id. (citing Tellez, 882 F.2d at 143).

Like Tellez and Becerra, C.C. has not revealed the source of the drugs involved in his offense. Because he has not revealed the source of the drugs, C.C. has not admitted to the conduct comprising his offense. Thus, there is not sufficient evidence to find C.C. has accepted responsibility for his offense because he has not admitted to the conduct comprising his offense.

Conclusion:

C.C. refuses to reveal the source of the drugs involved in his offense. Because C.C. has not revealed the source of the drugs, he has not truthfully admitted to the conduct comprising his offense and has not accepted responsibility. Therefore, C.C. will not receive the reduction in his offense level for accepting responsibility.

Additional Information:

Additional evidence may exist which rebuts the evidence that he has accepted responsibility for his actions even though he has pleaded guilty, “truthfully admit[ed] conduct comprising the offense” and either “truthfully admit[ed] or not falsely den[ied] any additional relevant conduct for which he is accountable under [U.S.S.G.] § 1B1.3. . . .” U.S.S.G. § 3E1.1, comment n.3. The Fifth Circuit requires a defendant to show sincere contrition before he receives a reduction in his offense level for acceptance of responsibility. Medina-Anicacio, 325 F.3d at 648 (citing United States v. Nguyen, 19 F.3d 656, 658 (5th Cir. 1999)). When it considers whether a defendant is truly contrite, a trial court may consider whether a defendant has discussed the circumstances surrounding his offense to the probation officer who prepares his pre-sentence report. Medina-Anicacio, 325 F.3d at 648 (citing United States v. Nevarez-Arreola, 885 F.2d 243, 244, 246 (5th Cir. 1989)). And if a defendant refuses to discuss the circumstances surrounding his offense, a trial court may find the defendant has not accepted responsibility for his actions because he is not sufficiently contrite. Id.

The Fifth Circuit has recently emphasized the need for a defendant to discuss the circumstances of his offense to the probation officer preparing his pre-sentence report to prove he has accepted his responsibility. See generally United States v. Medina-Anicacio, 325 F.3d 638 (5th Cir. 2003); United States v. Becerra, 2007 WL 1202777 *1 (5th Cir. April 24, 2007) (not designated for publication). In Medina-Ancacio, Medina refused to discuss the circumstances of his offense with the probation officer preparing his pre-sentence report even though he admitted to the police and pleaded guilty at trial to illegally entering the United States. 325 F.3d at 648. Because he did not discuss the circumstances of his offense with the probation officer, the court held Medina had not accepted responsibility for his actions. Id. And in Becerra, Becerra pleaded guilty to possession of drugs with the intent to distribute but refused to discuss the circumstances surrounding his offense with the probation officer preparing his pre-sentence report. 2007 WL 1202777 at *1. Because he refused to discuss the other circumstances surrounding his offense, the court ruled Becerra was not entitled to the reduction for acceptance of responsibility. Becerra, 2007 WL 1202777 at *1 (citing United States v. Nevarez-Arreola, 885 F.2d 243, 245-46 (5th Cir. 1989); United States v. Tellez, 882 F.2d 141, 143 (5th Cir. 1989)).