BLOG BULLETS:

• Defendants can get credit for acceptance of responsibility even when they go to trial.
• Such credit is especially justifiable when the defense is an affirmative defense that admits the conduct, like entrapment or duress.
• And remember Booker; does it “promote respect for the law” or “provide just punishment” to sentence a defendant to more time just because he exercised his consititutional rights?

NOW THE BLOG:

In my posts over the last several weeks (see “Objecting to a Conditional Plea to Prejudice the Jury: Prosecutorial Bad Form (and Even Bad Faith)”, “They’re Doing You a Favor by Agreeing to a Conditional Plea? Wait a Minute!”, and “Why Do We Sign Plea Agreements? Or Who Needs the Government Anyway?” linked in the “Recent Posts” column on the right), I talked, at least in passing, about defendants getting credit under the acceptance of responsibility guideline even if they didn’t sign plea agreements and/or if they sat through a trial without doing anything only because the prosecutor wouldn’t agree to a conditional plea. There’s actually even more to talk about in this area, however. Defendants can get credit for acceptance of responsibility even when they really go to trial.

There’s both guidelines commentary and – perhaps more important – case law saying that. Indeed, a flat, per se rule that defendants can’t get credit for acceptance of responsibility if they go to trial might well be unconstitutional, in penalizing a defendant’s exercise of his constitutional rights. The Ninth Circuit implicitly recognized this way back at the beginning of the guidelines when it rejected a constitutional challenge to the acceptance of responsibility guideline only because the guideline, in the circuit’s words, “authorizes reductions in sentences of defendants who are tried as well as those who plead guilty.” United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir. 1990) (emphasis in original).

There are a number of reported Ninth Circuit cases out there that give force to this statement, moreover, by reversing denials of acceptance of responsibility credit where the denials were based simply on the fact that the defendant had gone to trial. In United States v. Johnson, 956 F.2d 894 (9th Cir. 1992), the Court acknowledged “the rule that a defendant may not be penalized for exercising a constitutional right.” Id. at 904. In United States v. Sitton, 968 F.2d 947 (9th Cir. 1992), the Court stated that a sentencing court “may not consider against the defendant any constitutionally protected conduct,” stated that the court “may not deny the reduction because of that choice,” and remanded for reconsideration because it appeared the district court might have violated these principles. Id. at 962. In United States v. McKinney, 15 F.3d 849 (9th Cir. 1994), the court stated: “Were a defendant required to plead guilty to be entitled to the reduction, the sentencing guidelines would penalize the exercise of a constitutional right.” Id. at 852 (emphasis in original). And while these cases are going on 20 years old, there’s also United States v. Cortes, 299 F.3d 1030 (9th Cir. 2002), in which the district court appeared to have believed that a defendant who went to trial was ineligible for the acceptance of responsibility reduction as a matter of law, and the Ninth Circuit held that “employing such a per se bar to the acceptance of responsibility reduction would have impermissibly penalized Cortes for exercising his constitutional rights.” Id. at 1039. See also United States v. Dhingra, 371 F.3d 557, 568 (9th Cir. 2004) (“It is well settled that a defendant who exercises his constitutional right to trial does not automatically forfeit the benefit of the adjustment for acceptance of responsibility.”).

There’s even cases saying a defendant can get credit when he or she testifies in support of an affirmative defense. In United States v. Ing, 70 F.3d 553 (9th Cir. 1995), the defendant testified in support of an entrapment defense, and the district court denied credit for acceptance of responsibility because, in the words of the presentence report which the district court adopted, “he denie[d] his criminal intent.” Id. at 556. The Ninth Circuit held that this was error, because “the defense of entrapment by its very nature entails an admission regarding the defendant’s participation in criminal activity.” Id. The court has similarly indicated that there may be acceptance of responsibility when the affirmative defense of duress is raised in a defendant’s testimony, see United States v. Gamboa-Cardenas, 508 F.3d 491, 505-06 (9th Cir. 2007), though it may need to be established by pretrial admissions or conduct, see id. (discussing and distinguishing United States v. Martinez-Martinez, 369 F.3d 1076 ,1089-90 (9th Cir. 2004)).

There’s also an interesting Booker argument to make outside the guidelines, based on the 18 U.S.C. § 3553(a) factors. Remember the § 3553(a) factors of “promot[ing] respect for the law,” 18 U.S.C. § 3553(a)(2)(A), and “provid[ing] just punishment,” id.? Does it promote respect for the law to give a defendant a higher sentence just because he exercised the constitutional rights that our founding fathers recognized in the Bill of Rights over two centuries ago? Is it just punishment to give a higher sentence for that? The arguably obvious answers to those questions (obvious to some of us, anyway) may justify an offset of the acceptance of responsibility differential in an appropriate case.

None of the foregoing is to say that these arguments are sure things, or even that they’ll work in a majority of cases. But it is to say that you shouldn’t give up on acceptance of responsibility just because your client went to trial. In some cases, moreover, with some judges and some clients, the nature of the defense and the humanization of your client at a trial may actually help in sentencing.