Second Circuit Vacates Sentence that Erroneously Denied Acceptance of Responsibility Credit
In United States v. Delacruz, No. 15-4174, the Second Circuit (Kearse, Lohier, Droney) vacated a defendant’s sentence, holding that the district court’s findings supporting the defendant’s failure to accept responsibility were clearly erroneous. In an opinion by Judge Kearse, the Second Circuit emphasized its precedent that a Sentencing Guidelines reduction for acceptance of responsibility is appropriate where the defendant truthfully admits the conduct comprising the offense of conviction. It would violate the Fifth Amendment’s Due Process Clause to withhold an acceptance of responsibility adjustment because the defendant denied other conduct that was not proved beyond a reasonable doubt. Thus, a “good-faith objection to material [presentence report] statements . . does not provide a proper foundation for denial of the acceptance-of-responsibility credit.”
Delacruz was charged along with seven others after a government sting uncovered a planned drug robbery. Delacruz pleaded guilty pursuant to a plea agreement to one count of conspiring to commit a robbery, stating at his plea allocution that he was going to be the getaway driver. The probation department calculated Delacruz’s Guidelines range as 46 to 57 months, including a downward adjustment for accepting responsibility pursuant to U.S.S.G. § 3E1.1. Delacruz, however, objected to two findings in the presentence report: that he had sold drugs in the past, and that he said he would cause physical harm to the drug couriers who were the target of the robbery. The district court (Forrest, J.) sua sponte ordered a Fatico hearing to evaluate the evidence on these contested issues relevant to sentencing. See United States v. Fatico, 603 F.2d 1053 (2d Cir. 1979) (approving of the holding of an evidentiary hearing on issues relating to sentencing). Following the hearing, the district court found that Delacruz was not entitled to an acceptance of responsibility credit, and sentenced him to 63 months, the bottom of the resulting Guidelines range of 63 to 78 months (which was higher than his stipulated Guidelines range in his plea agreement).
Judge Kearse began with a discussion of Guidelines section 3E1.1 and whether it barred credit for acceptance of responsibility when a defendant denied facts related to sentencing. The Court explained that the “paramount” factor in determining whether to grant an offense level reduction is “whether the defendant truthfully admits the conduct comprising the offense or offenses of conviction.” (Emphasis in original). The Guidelines also explain that “a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility.” (Quoting § 3E1.1). Balancing these two principles, the Court concluded that a mere good-faith objection to facts in the presentence report is not a basis for denying credit for acceptance of responsibility.
The Second Circuit took issue with two of the district court’s factual findings that formed the basis for denying the acceptance of responsibility credit. The district court found that Delacruz told the probation office he would be “just a lookout.” This allegedly quoted language, central to the district court’s analysis, was nowhere to be found in the presentence report. Nor could the district court rely on something seen at Delacruz’s plea allocution, since she referred that proceeding to a magistrate judge. In fact, the Second Circuit agreed that there was “every indication in the record that Delacruz was not to be just a lookout but was to be the getaway driver” who would drive away with the stolen narcotics, and that he admitted as much to the government. Contrary to the district court, it found no evidence in the record that Delacruz had minimized his role in conversations with the probation office.
The district court also found that Delacruz said he would inflict harm on the robbery targets based on a recorded conversation in which Delacruz said that the drug courier would “cry like a sissy.” The Second Circuit disagreed with the finding, noting that nothing in the record indicated that Delacruz himself would be the one to cause harm. Even the government’s cooperating witness did not support such a finding.
The Court briefly disposed of two other issues raised by Delacruz. First, it held that Delacruz’s due process rights were not violated by the district court’s consideration of facts unrelated to the offense conduct, or by its decision to hold a Fatico hearing to inquire about such facts in order to make sure that the defendant was sentenced based on true information. Second, the Court rejected Delacruz’s argument that the testimony from the government’s cooperating witness about Delacruz’s prior drug sales was incredible as a matter of law. Though the Court described the testimony as containing “inconsistencies and equivocations”—and suggested that it would have preferred a more careful explanation of credibility findings by the district court—ultimately there was sufficient evidence in the record to support the district court’s finding.
The main takeaway from Delacruz is the discussion of when a district court may deny credit for acceptance of responsibility. Judge Kearse explained that when a defendant denies facts in the presentence report, he is exercising his right under the Due Process Clause, and that this action alone does not deprive him of the right to credit for acceptance of responsibility. Something more than that is required. For example, the case likely would have come out differently if the defendant had testified falsely in the Fatico hearing; then there would have been a basis to say that the defendant did not accept responsibility, and indeed attempted to obstruct justice. Recognizing the importance to the defendant of being sentenced on true facts, the Circuit has encouraged defendants to object to the presentence report without fear that this—standing alone—will lead the defendant to lose the credit for acceptance of responsibility that he earned by virtue of his timely guilty plea and (in this case, the benefit of his plea agreement).
-By Stephanie Teplin and Harry Sandick