United States v. Haney

                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            FEB 11 2004
                                     TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 00-1421
          v.                                            (D. Colorado)
 ROBERT HANEY,                                     (D.C. No. 98-CR-224-D)

               Defendant-Appellant.


                            ORDER AND JUDGMENT           *




Before HENRY, Circuit Judge, BRORBY , Senior Circuit Judge, and         ROGERS ,
Senior District Judge. **


      This appeal comes to us on remand from the en banc court. See United

States v. Haney, 318 F.3d 1161 (10th Cir. 2003) (en banc). Robert Haney was

convicted after a jury trial of possession of escape paraphernalia in prison (in

violation of 18 U.S.C. § 1791(a)(2)), and he appealed his conviction and sentence

to this court. In a prior opinion, this panel vacated his conviction on the grounds



      *
       This order and judgment is not binding precedent, except under the
doctrines of res judicata, collateral estoppel, and law of the case. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10 TH C IR . R. 36.3.
      **
        The Honorable Richard D. Rogers, United States Senior District Judge for
the District of Kansas, sitting by designation.
that the district court had erred in failing to instruct the jury on Mr. Haney’s

duress defense. See United States v. Haney, 287 F.3d 1266 (10th Cir. 2002).

However, the en banc court concluded that Mr. Haney had not raised the duress

defense as to the escape paraphernalia charge and that failure to so instruct the

jury did not constitute plain error. See Haney, 318 F.3d at 1166-67. The en banc

court therefore affirmed Mr. Haney’s conviction and remanded the case to this

panel for disposition of a sentencing issue—whether the district court erred in

failing to grant him a reduction in offense level for acceptance of responsibility,

pursuant to § 3E1.1 of the United States Sentencing Guidelines. 1

      Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §

3742(a), we conclude that the district court did not err in applying USSG § 3E1.1.

We therefore affirm Mr. Haney’s sentence.



                                I. BACKGROUND

      Because the underlying facts are set forth in the prior panel opinion, see

Haney, 287 F.3d at 1267-69, we need not summarize them here. In addition to the

facts set forth there, we note that at sentencing, Mr. Haney sought an acceptance-

of-responsibility reduction pursuant to USSG § 3E1.1. The district court denied



      1
         Because this panel had vacated Mr. Haney’s conviction, we did not reach
the sentencing issue in our initial opinion.

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Mr. Haney the adjustment, referring to its denial of the same adjustment requested

by Mr. Haney’s co-defendant, Mr. Francis. The court stated that “[i]f the Court is

unwilling to grant acceptance of responsibility for [Mr.] Francis, then I don’t

think I can do it for [Mr.] Haney, particularly since there really wasn’t a duress

defense or any defense that the Court allowed the jury to consider as to [Mr.]

Haney.” Rec., no. 00-1429, (United States v. Francis), vol XIX, at 23 (Tr. of Oct.

11, 2000 Sentencing Hr’g).



                                  II. DISCUSSION

      Mr. Haney argues that the district court misapplied United States

Sentencing Guideline § 3E1.1(a), which provides for a two-level decrease in

offense level where the defendant “clearly demonstrates acceptance of

responsibility.” Mr. Haney maintains that the district court: (1) failed to realize

that it maintained discretion to grant a § 3E1.1(a) reduction even though he had

declined to plead guilty to the charge of possession of escape paraphernalia; and

(2) erred in concluding that the circumstances of Mr. Haney’s case did not

warrant the two-level increase under § 3E1.1

      Mr. Haney’s first argument challenges the district court’s legal

interpretation of the Guidelines, and we therefore engage in de novo review. See

United States v. Holbert, 285 F.3d 1257, 1259 (10th Cir. 2002). However, as to


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his second argument, “[d]etermination of acceptance of responsibility is a

question of fact reviewed under a clearly erroneous standard.” United States v.

Saffo, 227 F.3d 1260, 1271 (10th Cir. 2000) (internal quotation marks omitted).

Moreover, “[t]he sentencing judge is in a unique position to evaluate a

defendant’s acceptance of responsibility, [and] [f]or this reason the determination

of the sentencing judge is entitled to great deference on review.” USSG § 3E1.1,

cmt. n.5.

      Section 3E1.1(a) directs the sentencing court to “decrease the offense level

by two levels” if “the defendant clearly demonstrates acceptance of responsibility

for his offense.” Application Note 2 to § 3E1.1 explains:

             This adjustment is not intended to apply to a defendant
             who puts the government to its burden of proof at trial by
             denying the essential factual elements of guilt, is
             convicted, and only then admits guilt and expresses
             remorse.      Conviction by trial, however, does not
             automatically preclude a defendant from consideration for
             such a reduction. In rare situations a defendant may
             clearly demonstrate an acceptance of responsibility for his
             criminal conduct even though he exercises his
             constitutional right to a trial. This may occur, for
             example, where a defendant goes to trial to assert and
             preserve issues that do not relate to factual guilt (e.g. to
             make a constitutional challenge to a statute or a challenge
             to the applicability of a statute to his conduct). In each
             such instance, however, a determination that a defendant
             has accepted responsibility will be based primarily upon
             pre-trial statements and conduct.


USSG § 3E1.1 cmt. n.2.

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      Here, Mr. Haney did put the government to its burden of proof by declining

to plead guilty and proceeding to trial. However, as the Guideline Commentary

makes clear, Mr. Haney remained eligible, at the discretion of the district court,

for the § 3E1.1(a) reduction.

      We conclude that the record adequately demonstrates the district court’s

awareness of this discretion. At the sentencing hearing, Mr. Haney’s counsel read

from the Commentary to § 3E1.1(a): “‘Conviction by trial . . . does not

automatically preclude a defendant from consideration for such a reduction.’”

Rec., no. 00-1429, vol. XIX, at 19 (quoting U.S.S.G. § 3E1.1 cmt. n.2). The court

clearly understood, itself reiterating: “‘In rare situations, a defendant may clearly

demonstrate acceptance of responsibility for his criminal conduct even though he

exercises his constitutional right to a trial.’” Id. at 22. The court specifically

noted: “[T]his application [note, USSG. § 3E1.1 cmt. n.2] doesn’t limit the

availability of acceptance of responsibility to only someone who’s challenging the

constitutionality [of the statute charged].” Id. at 14-15. The district court

proceeded to question counsel regarding application of the reduction, particularly

inquiring as to pretrial statements and conduct. See, e.g., id. at 15-22. The

district court concluded: “So I believe on this record that allowing acceptance of

responsibility would be inconsistent with the spirit, purpose and intent of Section

3E1.1.” Id. at 23-24. Accordingly, the record provides ample evidence that the


                                          -5-
district court understood its discretion to grant the acceptance of responsibility

adjustment if the circumstances warranted it.

      As to the district court’s factual finding that the downward adjustment was

not warranted, Mr. Haney argues that he accepted responsibility by admitting to

the collection of escape paraphernalia charge during his trial testimony. Although

Mr. Haney’s admission at trial is a factor that the district court could consider, we

discern no clear error in the district court’s conclusion that the downward

adjustment was still not warranted. As noted above, in these circumstances “[a]

determination that a defendant has accepted responsibility will be based primarily

on pre-trial statements and conduct.” USSG § 3E1.1 cmt.n.2. Mr. Haney points

to no such pretrial statements and conduct evincing an acceptance of

responsibility. See Rec. vol. XIX, at 20 (prosecutor’s statement at sentencing

noting the lack of acceptance of responsibility prior to trial). The record thus

indicates that the district court weighed the appropriate factors and concluded in

the proper exercise of the its discretion that Mr. Haney was not entitled to the

acceptance of responsibility reduction. Cf. United States v. Garcia, 182 F.3d

1165, 1173 (10th Cir. 1999) (stating that the fact that raising an entrapment

defense does not preclude application of the acceptance of responsibility

adjustment “does not mean that the simple assertion of the entrapment defense

coupled with acknowledgment of the underlying criminal activity automatically


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entitles a defendant to a two-point acceptance of responsibility reduction”);

United States v. Ivy, 83 F.3d 1266, 1294 (10th Cir. 1996) (“[B]oth U.S.S.G. §

3E1.1(a) and application note 2, make it clear a defendant is entitled to a

reduction in offense level for acceptance of responsibility only if he clearly

demonstrates acceptance of responsibility for his offense. It is disingenuous to

maintain that an individual clearly demonstrates acceptance of responsibility by

simply declining to controvert the government’s evidence at trial. Instead, this

language contemplates that the defendant will perform some affirmative act,

rather than standing idly by while the government proves its case.”) (internal

quotation marks omitted); United States v. Portillo-Valenzuela, 20 F.3d 393,

394-95 (10th Cir. 1994) (“Pleading not guilty and requiring the government to

prove guilt at trial demonstrate denial of responsibility, regardless of how easily

the government can prove guilt.”).



                                  CONCLUSION

      For the reasons set forth above, we AFFIRM Mr. Haney’s sentence.



                                               Entered for the Court,



                                               Robert H. Henry
                                               Circuit Judge

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