United States v. Dozier, Romulus

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 22, 1998 Decided December 11, 1998

No. 97-3060

United States of America,

Appellee,

v.

Romulus Dozier,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 96cr00430-01)

Jason A. Levine argued the cause for appellant. With him

on the briefs was Bruce A. Baird.

Danny Onorato, Assistant U.S. Attorney, argued the cause

for appellee. With him on the briefs were Mary Lou Leary,

U.S. Attorney at the time the brief was filed, John R. Fisher,

Elizabeth Trosman, M. Evan Corcoran and Timothy J. Hea-

phy, Assistant U.S. Attorneys.

Before: Edwards, Chief Judge, Sentelle and Garland,

Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: A jury convicted Romulus Dozier

of two weapons charges and acquitted him of three drug-

related charges. Dozier challenges his sentence under the

United States Sentencing Guidelines, arguing that the district

court erred by: (1) increasing his offense level for obstruction

of justice, and (2) failing to explain why it denied a decrease

for acceptance of responsibility. For the reasons stated

below, we affirm the sentence.

I

Based on information provided by an informant, investiga-

tors from an anti-drug-trafficking task force stopped Dozier

and a passenger, Carl Shipp, while they were driving in the

District of Columbia. The agents found a semi-automatic

pistol loaded with fifteen rounds of ammunition hidden near

the car's steering wheel, as well as a bag containing $4,037 in

cash. Although the agents did not find drugs either on

Dozier's person or in the car, they did find 33.9 grams of

cocaine base in Shipp's pockets.

On November 14, 1996, a grand jury issued a five-count

indictment against Dozier, charging him with: (1) conspiracy

to distribute, and to possess with intent to distribute, five

grams or more of cocaine base, in violation of 21 U.S.C.

s 846; (2) unlawful possession with intent to distribute five

grams or more of cocaine base, in violation of 21 U.S.C.

ss 841(a)(1), (b)(1)(B)(iii); (3) using and carrying a firearm

during and in relation to a drug trafficking offense, in viola-

tion of 18 U.S.C. s 924(c)(1); (4) unlawful possession of a

firearm by a convicted felon, in violation of 18 U.S.C.

s 922(g)(1); and (5) unlawful possession of ammunition by a

convicted felon, in violation of 18 U.S.C. s 922(g)(1). After

the district court denied Dozier's motions to suppress evi-

dence, Dozier twice offered to plead guilty to counts four and

five (the "weapons charges"), in exchange for the dismissal of

counts one through three (the "drug charges"). The govern-

ment rejected the plea offers and Dozier proceeded to trial in

February 1997.

At trial, Shipp testified that both the pistol and the drugs

belonged to Dozier. He said that when Dozier noticed the

police were following the car, Dozier handed Shipp two bags

of crack cocaine, saying: "Hold on to this because you cannot

get searched because you're the passenger of the car." Shipp

further testified that after their arrest, while both he and

Dozier were detained together in a cellblock, Dozier offered

to give him money or drugs to say the gun was his rather

than Dozier's: "He said that ... if I said the gun was mine,

that he would give me $5,000 or give me an eighth of a key"--

which, Shipp explained, referred to an eighth of a kilogram of

crack cocaine. Another witness testified that he had sold the

gun in question to Dozier. The jury convicted defendant on

the weapons charges but acquitted him on the drug charges.

Following the trial, the United States Probation Office

prepared a Presentence Investigation Report ("PSR") that

calculated defendant's sentencing range pursuant to the U.S.

Sentencing Commission Guidelines Manual (Nov. 1995). The

PSR determined that Dozier's base offense level was 20, and

that his prior convictions for gun and drug offenses generated

a criminal history category of V. This yielded a sentencing

range of 63-78 months of imprisonment. The PSR recom-

mended against a two-level decrease in the offense level (a

"downward adjustment") for acceptance of responsibility, pur-

suant to U.S.S.G. s 3E1.1. The PSR stated:

The defendant pleaded not guilty and exercised his right

to a jury trial. The defendant, through [h]is attorney,

said "the facts of the offense support the convictions."

Counsel noted that the defendant offered to plead guilty

to the firearm violations after the Suppression Motions

were denied, but the government rejected his offer.

The defendant explained that he bought the gun from a

friend "a few years ago." He added that he had forgot-

ten that he even had the gun, though he admitted that he

hid it because he knew possessing the gun was illegal.

Dozier said he only used the gun at a Forestville, Mary-

land firing range.

The PSR also recommended against a two-level increase in

the offense level (an "upward adjustment") for obstructing or

attempting to obstruct justice pursuant to U.S.S.G. s 3C1.1,

stating that the Probation Office had "no information at this

time" to suggest the defendant attempted to obstruct justice.

An addendum to the PSR noted that "the government ad-

vised us that it will provide additional information in its

sentencing memorandum" on the issue of obstruction, and

that if the court then concluded an adjustment were warrant-

ed, the total offense level would increase to 22. The result,

the addendum calculated, would be a sentencing range of 77-

96 months. Dozier filed a sentencing memorandum opposing

an offense-level increase for obstruction of justice, and argu-

ing in favor of a decrease for acceptance of responsibility

based on his attempts to negotiate a plea to the weapons

charges. The government filed a memorandum arguing in

favor of an increase for obstruction of justice, based on

Shipp's testimony that Dozier tried to bribe him to claim

ownership of the gun. It also opposed Dozier's requested

decrease for acceptance of responsibility.

At the sentencing hearing on May 13, 1997, Dozier's coun-

sel again opposed an increase for obstruction of justice,

arguing that Dozier's acquittal on the drug charges showed

that the jury did not find Shipp's testimony credible. The

district court, however, made the following finding: "I think

the government is right on that point.... [Dozier] offered to

pay Shipp several thousand dollars to tell the police that the

gun belonged to Shipp. If that is not obstruction of justice, I

don't know what is." In response to defense counsel's argu-

ment concerning Shipp's credibility, the court said: "I under-

stand you are saying ... the jury didn't believe Shipp on that

issue, but there is sufficient evidence here that that is what

happened."

Defense counsel also repeated his argument in favor of a

decrease for acceptance of responsibility. Although the court

did not respond directly, it concluded that with a two-level

increase for obstruction of justice, the resulting sentencing

range was 77-96 months. Both parties agree this indicated

that the court was denying Dozier's request for a decrease.

The court did not explain its reasons for denying the request,

and neither party objected to the lack of an explanation--

notwithstanding the court's closing query as to whether either

counsel had "anything else" prior to concluding the proceed-

ing. The court sentenced Dozier to 84 months in prison.

II

U.S. Sentencing Guideline s 3C1.1 requires a two-level

increase in a defendant's offense level if he willfully obstruct-

ed or attempted to obstruct justice during the investigation or

prosecution of the offense for which he was convicted. The

commentary to the Guideline provides examples of the type of

conduct to which it applies, including "unlawfully influencing

a codefendant [or] witness" and "suborning, or attempting to

suborn perjury." U.S.S.G. s 3C1.1, comment. (n.3(a), (b)).

Dozier challenges the district court's imposition of the in-

crease on three grounds. First, he contends that a finding of

obstruction of justice must be supported by "clear and con-

vincing evidence," not merely by a preponderance of the

evidence. Second, he asserts that the district court erred in

not making specific factual findings indicating why he found

Shipp's testimony credible. Finally, Dozier suggests that the

evidence was insufficient to support the factual finding of

obstruction. Because the jury acquitted him on the drug

charges, Dozier contends it must have found Shipp's testimo-

ny on that issue noncredible, and that therefore the court

should not have based an increase on Shipp's testimony that

Dozier tried to bribe him to lie about the gun.

We review Dozier's challenges to his sentence according to

the "trichotomy" established by Congress in 18 U.S.C.

s 3742(e). "[P]urely legal questions are reviewed de novo;

factual findings are to be affirmed unless 'clearly erroneous';

and we are to give 'due deference' to the district court's

application of the guidelines to facts." United States v. Kim,

23 F.3d 513, 517 (D.C. Cir. 1994). Dozier's contentions that

obstruction must be established by clear and convincing

evidence, and that increases for obstruction must be accompa-

nied by specific findings, are purely legal questions; we

therefore review them de novo. We review the court's factual

finding that Dozier attempted to obstruct justice under the

clearly erroneous standard. There is no dispute about the

application of the Guidelines to the facts in this case; Dozier

does not disagree that an attempt to buy false testimony

would constitute obstruction of justice.

We begin with Dozier's contention that obstruction must be

established by clear and convincing evidence. As defendant

concedes, the government's usual burden is to prove facts in

support of an upward adjustment by a preponderance of the

evidence. See United States v. Washington, 115 F.3d 1008,

1010 (D.C. Cir. 1997); United States v. Burke, 888 F.2d 862,

869 (D.C. Cir. 1989). Relying on our decision in United

States v. Montague, 40 F.3d 1251 (D.C. Cir. 1994), however,

Dozier contends that adjustments based on obstruction of

justice are subject to the higher standard of proof by clear

and convincing evidence.

But Montague did not require clear and convincing evi-

dence for all adjustments based on obstruction of justice. In

Montague, we held only "that the clear-and-convincing stan-

dard is the appropriate standard by which to evaluate defen-

dant testimony for section 3C1.1 perjury enhancements." 40

F.3d at 1254 (emphasis added); see also United States v.

Gaviria, 116 F.3d 1498, 1518 (D.C. Cir. 1997). Montague was

based on our reading of then-effective commentary to

s 3C1.1, which stated:

This provision is not intended to punish a defendant for

the exercise of a constitutional right. A defendant's

denial of guilt (other than a denial of guilt under oath

that constitutes perjury) ... is not a basis for application

of this provision. In applying this provision in respect to

alleged false testimony or statements by the defendant,

such testimony or statements should be evaluated in a

light most favorable to the defendant.

40 F.3d at 1253 (quoting U.S.S.G. s 3C1.1, comment. (n.1)

(1994)) (emphasis added). Montague read the commentary's

admonition, that "such testimony or statements should be

evaluated in a light most favorable to the defendant," as

requiring a standard higher than the usual preponderance

standard. Id.1 We noted that this requirement may have

reflected the Commission's concern that "in the absence of a

heightened standard of proof on perjury, defendants might be

leery about testifying in their own defense lest they face a

charge of perjury whenever convicted." Id. at 1254. We

made clear, however, that the commentary "singles out defen-

dant testimony; it directs courts to use this standard only 'in

respect to alleged false testimony or statements by the defen-

dant.' " Id. (quoting s 3C1.1, comment. (n.1)).

The obstructive conduct at issue here is of a different kind

than that in Montague. Dozier is alleged to have suborned

the perjury of another, not to have committed perjury him-

self. Hence, neither Montague's holding, nor its concern

about inhibiting the exercise of a defendant's right to testify

in his own defense, applies. Accord United States v. Garcia,

135 F.3d 667, 670 (9th Cir. 1998) ("Assuming without deciding

that Application Note 1 mandates a standard greater than a

preponderance of evidence for a sentence enhancement for a

defendant's own false testimony, it does not apply ... [where]

he suborned the perjured testimony of a witness...."). We

therefore reject defendant's first challenge to the district

court's decision to increase his offense level for obstruction of

justice.

Dozier's second contention is that the district court was

required, but failed, to make specific factual findings justify-

ing the conclusion that he obstructed justice. In support,

__________

1 Effective November 1, 1997, the Sentencing Commission deleted

the above-quoted phrase from the commentary to s 3C1.1. The

Commission made the deletion so that the Application Note "no

longer suggests the use of a heightened standard of proof."

U.S.S.G. App. C, amend. 566 (Nov. 1997) (citing conflict between

Montague and the Sixth Circuit's contrary view in United States v.

Zajac, 62 F.3d 145 (6th Cir. 1995)).

Dozier again cites our decision in Montague, this time for the

proposition that a district court's "finding of perjury under

section 3C1.1" must be based on "separate and clear" find-

ings. 40 F.3d at 1255-56. But that holding, too, was limited

to a finding of perjury by "a testifying defendant," id. at 1255,

and went "hand-in-hand with [the] higher standard of proof"

required for such an adjustment. Id. at 1256. Neither the

holding nor the considerations on which it was based extend

to the defendant's subornation of perjury by another person.2

It is true that the Sentencing Reform Act of 1984, 18

U.S.C. s 3553(c), requires that "the court, at the time of

sentencing, shall state in open court the reasons for its

imposition of the particular sentence."3 But that requirement

was met here. The district court stated that Dozier's sen-

tence was founded upon his base offense level, increased by

two levels for obstruction of justice. The court further

indicated that it made the two-level increase because Dozier

"offered to pay Shipp several thousand dollars to tell the

police that the gun belonged to Shipp," and that "[i]f that is

not obstruction of justice, I don't know what is." While the

__________

2 In Montague, we noted the Supreme Court's decision in United

States v. Dunnigan, which held that "if a defendant objects to a

sentence enhancement resulting from her trial testimony, a district

court must review the evidence and make independent findings

necessary to establish a willful impediment to or obstruction of

justice ... under the perjury definition...." 507 U.S. 87, 95

(1993); see Montague, 40 F.3d at 1255. Consistent with our view

here, we recognized that this holding was based on "the Court's

reasoning, that there may be instances in which a testifying defen-

dant is found guilty but did not commit perjury." Montague, 40

F.3d at 1255 (emphasis added).

3 Greater specificity is required for certain kinds of sentences not

at issue here. Subsection 3553(c)(1) requires an additional state-

ment of "the reason for imposing a sentence at a particular point

within the range," where the applicable sentencing range, and not

just the sentence itself, exceeds 24 months. See United States v.

Zine, 906 F.2d 776, 778-79 (D.C. Cir. 1990). Subsection 3553(c)(2)

requires the court to state its "specific reason" where it imposes a

sentence outside the range described by the Guidelines.

court acknowledged defendant's contention that it should not

credit Shipp's testimony, the court concluded that "there is

sufficient evidence here that that is what happened." Al-

though it did not go further and explain why it believed

Shipp, as defendant contends is required, there is little mys-

tery on that point: the court heard Shipp testify first-hand

and hence was able to judge his credibility directly.4

Dozier's final contention is that the evidence was insuffi-

cient to justify a finding of obstruction under any standard of

proof. Dozier contends that the court erred in crediting

Shipp's testimony regarding the attempted obstruction, since

the jury's acquittal of Dozier on the drug charges assertedly

demonstrated that it "rejected" Shipp's testimony that Dozier

handed him the drugs, and thus indicated that the jury did

not believe Shipp at all. The court, Dozier suggests, should

have drawn the same conclusion.

This argument is wrong for three reasons. First, as the

Supreme Court noted in United States v. Watts, 117 S. Ct.

633, 637 (1997), "it is impossible to know exactly why a jury

found a defendant not guilty on a certain charge.... [T]he

jury cannot be said to have 'necessarily rejected' any facts

when it returns a general verdict of not guilty." Second, a

jury may accept some parts of a witness' testimony and reject

others, see Parker v. United States, 801 F.2d 1382, 1385-86

(D.C. Cir. 1986); even if the jury disbelieved Shipp with

respect to ownership of the drugs, it may have believed him

with respect to the attempted subornation. Third, even if the

jury did not believe that Shipp's testimony established subor-

nation beyond a reasonable doubt (an issue never put to it,

since subornation was not one of the charges), " 'an acquittal

in a criminal case does not preclude the Government from

relitigating an issue when it is presented in a subsequent

action governed by a lower standard of proof.' " Watts, 117

__________

4 Even if the court had been required to make more specific

findings, Dozier failed to seek such findings or object to their

absence below. As we note in Part III, that failure would subject

this challenge to review for plain error, a standard Dozier cannot

meet.

S. Ct. at 637 (quoting Dowling v. United States, 493 U.S. 342,

349 (1990)). Accordingly, "a jury's verdict of acquittal does

not prevent the sentencing court from considering conduct

underlying the acquitted charge, so long as that conduct has

been proved by a preponderance of the evidence." Watts, 117

S. Ct. at 638; see United States v. Thomas, 114 F.3d 228, 261

(D.C. Cir. 1997).

Here, the district court found the evidence "still sufficient"

to establish the attempted obstruction, notwithstanding the

jury's acquittal on the drug charges. That finding was

plainly based on the court's first-hand appraisal of Shipp's

credibility. As we are charged to "give due regard to the

opportunity of the district court to judge the credibility of the

witnesses, and [to] accept the findings of fact of the district

court unless they are clearly erroneous," 18 U.S.C. s 3742(e),

we accept the court's finding and affirm the two-level increase

for obstruction of justice.

III

The Sentencing Guidelines provide for a two-level decrease

in a defendant's offense level if he "clearly demonstrates

acceptance of responsibility for his offense." U.S.S.G.

s 3E1.1(a). Dozier contends that the district court erred by

failing to explain why it denied him the two-level adjustment.

Dozier, however, did not object to this failure below--at a

time when the trial judge could have remedied it by explain-

ing his rationale. For that reason, even if the failure to

explain were error, we would be able to correct it only if it

were "plain error." Fed. R. Crim. P. 52(b); see United

States v. Olano, 507 U.S. 725, 731-32 (1993).

Although the plain error standard has a number of require-

ments, see Olano, 507 U.S. at 732-36, most important for this

case is that it puts the burden on the defendant to establish

prejudice. See id. at 734; United States v. Forte, 81 F.3d

215, 217 (D.C. Cir. 1996). This means that Dozier must

demonstrate a "reasonable likelihood" that "the court would

have reached a different result" had it not made the error

asserted. Forte, 81 F.3d at 219-20; see also United States v.

Saro, 24 F.3d 283, 288 (D.C. Cir. 1994). And since the error

asserted here is the court's failure to explain its decision, the

defendant must show a reasonable likelihood that the court

would have granted his requested decrease if it had ad-

dressed the issue directly and explained its reasoning. Cf.

United States v. Childress, 58 F.3d 693, 724 (D.C. Cir. 1995)

(holding that where the error is a failure to make requisite

findings, plain error requires a showing that it is "reasonably

likely the district court would have assigned [defendant] a ...

lower base offense level if it had made the requisite find-

ings"). Dozier faces three hurdles to meeting that require-

ment, which on the facts of this case are insuperable.5

First, the commentary to the Guideline states that the

adjustment for acceptance of responsibility "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," except in "rare situations" such as "where a defendant

goes to trial to assert and preserve issues that do not relate

to factual guilt." U.S.S.G. s 3E1.1, comment. (n.2); see

United States v. Jones, 997 F.2d 1475, 1478 (D.C. Cir. 1993)

(en banc) ("The Guidelines explicitly tell judges that they

normally should deny the two-point reduction to a defendant

who does not plead guilty."). Here, Dozier went to trial and

__________

5 As noted, defendant's argument is that the court erred in failing

to explain its reasons for denying the decrease; he does not directly

allege that the denial itself was error. Were he to make such an

argument, we would review it on a harmless, rather than plain error

standard, because defendant did seek a decrease at the sentencing

hearing and did object to the PSR's recommendation against one.

See Fed. R. Crim. P. 52(a); cf. United States v. Patel, 131 F.3d

1195, 1201 (7th Cir.1997) (holding that defendant who consistently

disputed Guidelines issue did not waive right to appeal by failing to

object again after court issued findings). But for essentially the

same reasons that we conclude defendant was not prejudiced by the

court's failure to explain its reasoning, we would also conclude that

the court did not err in refusing to grant the requested decrease in

the first place. At bottom, because defendant never "clearly dem-

onstrate[d] acceptance of responsibility for his offense," he cannot

satisfy the essential prerequisite for the decrease. U.S.S.G.

s 3E1.1(a).

his counsel contested "the essential factual elements of guilt,"

both on the charges for which he was acquitted (the drug

charges) and on those for which he was convicted (the weap-

ons charges). He did not do so to "preserve issues that do

not relate to factual guilt," such as "making a constitutional

challenge ... to the applicability of a statute to his conduct."

U.S.S.G. s 3E1.1, comment. (n.2). This further sharpens the

nature of defendant's burden in establishing plain error: He

must demonstrate that it is " 'reasonably likely' that [his] case

is one of the 'rare situations' in which a defendant who

proceeds through trial is entitled to a reduction for accep-

tance of responsibility." United States v. Mitchell, 49 F.3d

769, 784 (D.C. Cir. 1995).

Defendant contends that his is one of those rare situations

because he twice offered to plead guilty to the only charges

on which the jury convicted him. The government "forced"

him "to submit all charges to a trial by jury," Dozier con-

tends, because it refused to accept a plea on the weapons

charges unless he also agreed to plead guilty to the drug

charges. Moreover, to deny him a decrease, Dozier argues,

would be to transgress the Guidelines' instruction that "a

defendant is not required to volunteer, or affirmatively admit,

relevant conduct beyond the offense of conviction in order to

obtain a reduction." U.S.S.G. s 3E1.1, comment. (n.1); see

United States v. Fields, 39 F.3d 439, 446 (3d Cir. 1994)

(remanding where it appeared district court may have consid-

ered defendant's refusal to admit conduct not part of the

offense of conviction).

But while the government's refusal to accept his plea offer

may have precluded a negotiated resolution of the case, it

neither forced Dozier to contest his guilt on the weapons

charges nor forced his attorney to suggest in closing argu-

ment that the witnesses who said the gun was his were not

telling the truth. Tr. at 50-56 (Feb. 26, 1997). Nor would

denying Dozier a decrease effectively punish him for refusing

to admit conduct beyond the weapons charges of which he

was convicted. Nothing prevented Dozier from going to trial

to contest his guilt on the drug charges, while admitting his

ownership of the gun and ammunition. Had he done so, he

would not now be ineligible for the downward adjustment he

seeks.

Dozier, however, contends that this was not a real option.

He had to contest his factual guilt on the weapons charges, he

asserts, because failure to do so would have prejudiced his

defense to the drug charges. But that was not necessarily so.

To the contrary, Dozier might have improved his credibility

with the jury by admitting the crimes of which he was guilty

and contesting only those of which he claims innocence. Our

point is not to second-guess Dozier's strategy, but only to

note that it was a strategy--a calculation that contesting all

the charges would so increase the probability of an across-

the-board acquittal as to outweigh the risk of losing a down-

ward adjustment in the event of a conviction. But the

Guidelines affect many strategic decisions defendants must

make, and that impact is not itself enough to move a case into

the "rare" class contemplated by s 3E1.1. As the Supreme

Court said, in rejecting the contention that the Guidelines'

sentencing enhancement for perjury distorts a defendant's

decision whether to testify, "[o]ur authorities do not impose a

categorical ban on every governmental action affecting the

strategic decisions of an accused." United States v. Dunni-

gan, 507 U.S. 87, 96 (1993). The fact that Dozier's defense to

the drug charges might have been weakened by a truthful

admission to the weapons charges is not one of those rare

circumstances that would mitigate his decision to contest the

latter.

Even if Dozier had conceded his guilt on the weapons

charges, he would still face a second hurdle. Where, as here,

a district court has properly imposed an adjustment for

obstruction of justice, the Guidelines state that an adjust-

ment for acceptance of responsibility "ordinarily" is not avail-

able. U.S.S.G. s 3E1.1, comment. (n.4); see Gaviria, 116

F.3d at 1521 ("[I]n almost all cases, a defendant who denies

guilt and goes to trial, or who receives an obstruction of

justice increase under s 3C1.1, is not eligible for a downward

adjustment for acceptance of responsibility."). While the

commentary to the Guidelines recognizes that there may "be

extraordinary cases in which adjustments under both

ss 3C1.1 and 3E1.1 may apply," U.S.S.G. s 3E1.1, comment.

(n.4), Dozier has not demonstrated that his is one of those

cases. See United States v. Smaw, 993 F.2d 902, 905 n.2

(D.C. Cir. 1993); see also United States v. Gonzales, 12 F.3d

298, 300 (1st Cir. 1993) ("A defendant must carry the burden

of proving that his case is extraordinary and, thus, that it

comes within the narrow confines of the exception.").

Dozier does not point to anything "extraordinary" about his

case, other than to repeat that he twice unsuccessfully at-

tempted to plead guilty. But those attempts cannot do

double duty. At most, they might establish that his situation

is sufficiently "rare" to overcome the fact that he chose to go

to trial--an argument we rejected above. But even if we had

accepted it, Dozier would be no better off than if he had pled

guilty. To overcome the fact that he attempted to obstruct

justice, he still must show that his case is "extraordinary" in

some other way. He has not suggested anything that would

put it in that category.

Finally, even if Dozier had cleared the above two hurdles,

his quest for an adjustment for acceptance of responsibility

would falter because he cannot establish s 3E1.1(a)'s core

prerequisite: An adjustment is available only "[i]f the defen-

dant clearly demonstrates acceptance of responsibility for his

offense." U.S.S.G. s 3E1.1(a) (emphasis added); see United

States v. Reid, 997 F.2d 1576, 1580 (D.C. Cir. 1993). Even if

the government did "force" Dozier to go to trial, it did not

prevent him from clearly expressing contrition after his con-

viction. Yet, defendant never did.

Dozier did say, "[t]hrough his attorney," that " 'the facts of

the offense support the convictions.' " PSR p 15. But that

sounds more like an expression of nolo contendere than of

contrition. It is not enough to demonstrate acceptance of

responsibility. See United States v. Thomas, 97 F.3d 1499,

1501 (D.C. Cir. 1996) ("There is a difference between admit-

ting the acts and accepting responsibility for the crimes.");

United States v. Cutchin, 956 F.2d 1216, 1219 (D.C. Cir.

1992).

Equally deficient was Dozier's direct statement to the

author of the PSR:

The defendant explained that he bought the gun from a

friend "a few years ago." He added that he had forgot-

ten that he even had the gun, though he admitted that he

hid it because he knew possessing the gun was illegal.

PSR p 16. This statement is hardly "clear," let alone an

acceptance of responsibility. We read it as suggesting that

defendant lacked a requisite element of the offense--intent--

because he had forgotten that he had the gun. See United

States v. Kirkland, 104 F.3d 1403, 1405 (D.C. Cir. 1997)

(noting "that a defendant's challenge to the requisite intent is

just another form of disputing culpability" and is inconsistent

with acceptance of responsibility). Defendant's appellate

counsel contended at oral argument that there was another

possible reading--that Dozier's use of the past perfect tense,

"had forgotten," meant the statement could be read as indi-

cating defendant had forgotten about the gun at some earlier

time but had remembered it by the day of his arrest. But

even counsel conceded he was "not certain" which time period

Dozier was referring to when he said he "had" forgotten the

gun. That is simply insufficient to satisfy the requirement of

s 3E1.1. To qualify for an adjustment, a defendant must

"clearly" accept responsibility for his crime; it is not enough

that he arguably do so. See Reid, 997 F.2d at 1580; United

States v. McLean, 951 F.2d 1300, 1302 (D.C. Cir. 1991).

The district court gave Dozier a final opportunity to make a

statement at the sentencing hearing. That was Dozier's

chance to clarify what he had said to the Probation Office,

and to express any contrition he may have felt. See McLean,

951 F.2d at 1302. But Dozier declined to say anything. Tr.

at 4 (May 13, 1997). While the district court lacks the power

to force a defendant to express remorse he does not feel, it is

not required to reward a remorseless defendant with a de-

crease in his offense level. Because Dozier did not "clearly

demonstrate acceptance of responsibility for his offense," he

cannot establish that the court plainly erred in failing to

explain its denial of an adjustment.

Defendant draws our attention to a number of cases in

which reviewing courts vacated and remanded sentencing

determinations because trial courts failed to explain their

reasoning adequately. In those and other cases, however,

either there was a reasonable likelihood that the trial court

had based its decision on an impermissible factor (a possibili-

ty that could not be resolved without obtaining a fuller

statement of the court's reasons),6 or the reviewing court was

unable to discern a reason for the determination from the

existing record.7 We have neither problem here. To the

contrary, the underlying reasons for denying Dozier an ad-

justment for acceptance of responsibility are both permissible

and readily discernible.

IV

The sentence imposed by the district court is

Affirmed.

__________

6 See, e.g., United States v. Amato, 46 F.3d 1255, 1263 (2d Cir.

1995) ("It also appears likely that the enhancement was based on

information which [defendant] was entitled, under his [cooperation]

agreement, to have excluded from consideration."); United States v.

Hicks, 978 F.2d 722, 726 (D.C. Cir. 1993) (remanding because of

ambiguous reasoning by district court and possibility that court's

decision implicated a constitutional issue); United States v. Charg-

er, 928 F.2d 818, 820, 823 (8th Cir. 1991) (remanding because of

ambiguous and conflicting statements by trial court); United States

v. Carlisle, 907 F.2d 94, 96 n.3 (9th Cir. 1990) (noting that remand

would obviate need to decide whether presentence report had

"forced [defendant] to implicate himself in other crimes in violation

of the Fifth Amendment"); see also Saro, 24 F.3d at 288-89

("Without more, this lack of explicitness would not constitute plain

error, but there are substantial signs that [defendant's] pre-

sentence report was actively employing the wrong legal standard.").

7 See, e.g., United States v. Barry, 938 F.2d 1327, 1337 (D.C. Cir.

1991) (reviewing court was unable to discern, and district court did

not explain, how perjury in earlier investigation obstructed investi-

gation of offense for which defendant was convicted); United States

v. Anderson, 886 F.2d 215, 216-17 (8th Cir. 1989) (remanding

because district court failed to resolve factual dispute necessary to

determine whether adjustment was appropriate).