By Stephanie Teplin and Harry Sandick on July 6, 2017, edited by David Zapp & Johanna Zapp
In United States v. Delacruz the Second Circuit the Second Circuit emphasized it previous ruling 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.”
Defendant pleaded guilty pursuant to a plea agreement stating at his plea allocution that he was the getaway driver in a robbery. Defendant, 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.) on her own, ordered a hearing to evaluate the evidence on these contested issues, and agreeing with the presentence findings relevant to sentencing found that Defendant was not entitled to an acceptance of responsibility credit.
The Court of Appeals disagreed. 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 Court concluded that a mere good-faith objection to other facts in the presentence report is not a basis for denying credit for “acceptance of responsibility. “
But “good faith” are the operative words. A defendant cannot hope to win on a “good faith” basis when the evidence contradicting his claim is overwhelming, and thus it is not surprising that the court spent significant time discussing why the evidence offered at the hear-ing and elsewhere did not overcome the claim. The case likely would have come out entirely differently if the defen-dant had testified falsely at the hearing.
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).