In re: Sealed Case

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 2003 Decided December 5, 2003

No. 02–3081

IN RE: SEALED CASE

Appeal from the United States District Court

for the District of Columbia

(No. 94cr00193–03)

Thomas G. Corcoran, Jr. argued the cause for the appel-

lant. Mary-Ellen Noone was on brief.

Suzanne Grealy Curt, Assistant United States Attorney,

argued the cause for the appellee. Roscoe C. Howard, Jr,

United States Attorney, and John R. Fisher, Thomas J.

Tourish, Jr and Martin D. Carpenter, Assistant United

States Attorneys, were on brief.

Before: GINSBURG, Chief Judge, and SENTELLE and

HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: After he was

convicted by a jury of conspiracy to distribute cocaine and of

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

unlawfully possessing with intent to distribute cocaine, the

appellant was sentenced to 210 months’ imprisonment pursu-

ant to the UNITED STATES SENTENCING COMMISSION GUIDELINES

MANUAL (Nov. 2001) (Guidelines) based on an offense level of

32 and a criminal history category of VI. He challenges his

sentence on appeal, alleging that the district court erred by

refusing to grant him a two-level downward adjustment for

acceptance of responsibility under Guideline § 3E1.1(a) and

by denying him an additional one-level reduction under

Guideline § 3E1.1(b)(1) for providing the government with

timely and complete information about his involvement in the

offenses. Having considered the multiple arguments the

appellant advances in support of his claims, we reject them.

I. BACKGROUND

The appellant participated in a conspiracy to transport via

overnight courier nearly 15 pounds of cocaine from Los

Angeles to two addresses in the Washington, D.C. metropoli-

tan area: one on Hartford Street in the District, the other on

Featherwood Drive in Silver Spring, Maryland. While the

appellant was the intended recipient of the package shipped

to the Hartford Street address, which contained approximate-

ly 3.9 kilograms of cocaine, a co-conspirator was supposed to

receive the package shipped to the Featherwood Drive ad-

dress, which contained approximately 2.9 kilograms of co-

caine. The Drug Enforcement Administration (DEA) inter-

cepted both packages en route after the courier notified it

that the packages appeared to contain narcotics. A DEA

agent, posing as the courier’s delivery person, ultimately

delivered the Hartford Street package to the appellant.

The appellant was indicted by a grand jury on one count of

conspiracy to distribute five kilograms or more of cocaine, in

violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(ii), and one

count of unlawfully possessing with intent to distribute five

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

§ 841(a)(1) and (b)(1)(A)(ii). The two counts of the indict-

ment were based on the total amount of cocaine (approxi-

mately 6.8 kilograms) contained in both the Hartford Street

3

and Featherwood Drive packages. Seeking a plea agreement

with the government, the appellant testified about his involve-

ment in the conspiracy before a grand jury. He later aban-

doned his effort to obtain a plea bargain and chose to proceed

to trial instead. On November 9, 1994, the jury convicted

him on both counts. Based on the total amount of cocaine

involved in the conspiracy, a criminal history category of VI

and an offense level of 37, the district court sentenced the

appellant on March 11, 1996 to 360 months’ imprisonment.

The appellant thereafter appealed his sentence; we vacated

the sentence because the record was inadequate to support

attributing both packages of cocaine to him and remanded to

the district court for re-sentencing based on further findings

as to the quantity of drugs for which the appellant was

responsible. In re Sealed Case, 108 F.3d 372, 374 (D.C. Cir.

1997). Finding that the evidence adduced at trial adequately

demonstrated the appellant’s knowledge of the Featherwood

Drive shipment and his active participation in the overall

conspiracy, the district court reinstated its original sentence.

Although the appellant appealed his sentence again, he and

the government later filed a consent motion seeking to re-

mand for re-sentencing without regard to the Featherwood

Drive package and for consideration of relief, if any, flowing

from the decision of the Supreme Court in Apprendi v. New

Jersey, 530 U.S. 466 (2000),1 or otherwise warranted. We

granted the consent motion on September 21, 2000.

The United States Probation Office (Probation Office) is-

sued a new Pre–Sentence Investigation Report (PIR) in

preparation for the appellant’s second re-sentencing. The

PIR found that the appellant was not eligible for an accep-

tance of responsibility adjustment because he ‘‘did not admit

his involvement in the instant offenses.’’ Record Material for

Appellant (Appellant’s Rec.), Tab 12 at 9. The Probation

Office eventually issued another memorandum in response to

1 In Apprendi, the Supreme Court held that ‘‘[o]ther than the

fact of a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted

to a jury, and proved beyond a reasonable doubt.’’ 530 U.S. at 490.

4

the district court’s request that it re-interview the appellant

regarding his acceptance of responsibility. The memorandum

explained that during the interview the appellant ‘‘described

in length his involvement with the Hartford Street shipment’’

but did not accept responsibility for the shipment to the

Featherwood Drive address. Appellant’s Rec., 14 at 2. In

aid of sentencing, the district court subsequently held an

evidentiary hearing on November 19, 2001.

On November 26, 2001, the district court denied the appel-

lant’s request for a downward adjustment to his offense level

under Guideline § 3E1.1(a) because it concluded that he had

not clearly demonstrated acceptance of responsibility for his

offenses. The court found that the appellant originally

claimed that he believed the drugs to be dishes and that he

did not accept responsibility for the role he played in the drug

conspiracy until after he became aware that it was relevant to

his sentencing. The court also found that prior to the

November 19, 2001 hearing the only evidence the appellant

offered of his acceptance of responsibility was his grand jury

testimony, which he repudiated by ‘‘voiding’’ his plea agree-

ment, and his counsel’s assertion that ‘‘counsel is hopeful that

at sentencing [the appellant] will accept responsibility for the

Hartford Street delivery.’’ Appellant’s Rec., Tab 21 at 9.

The court concluded that the appellant’s acceptance of re-

sponsibility came too late to obtain the two-level adjustment.

The appellant then moved for reconsideration. On July 16,

2002, the district court denied the appellant’s motion, finding

that the appellant’s decision to proceed to trial was inconsis-

tent with the clear acceptance of responsibility required by

Guideline § 3E1.1(a) and that his decision did not involve any

rare circumstance. Accordingly, on August 23, 2002, the

district court re-sentenced the appellant and, based on an

offense level of 32 and a criminal history category of VI,

imposed concurrent sentences of 210 months’ imprisonment

on each count of conviction. The appellant filed a timely

appeal of his sentence. His case is thus before us for a third

time.

5

II. ANALYSIS

We review the sentence imposed by the district court under

the ‘‘trichotomy’’ established by the Congress in 18 U.S.C.

§ 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 the facts.’’ United States v.

Kim, 23 F.3d 513, 517 (D.C. Cir. 1994). We affirm the

sentence because the district court did not err by denying the

appellant a downward adjustment for accepting responsibility

and for providing the government with information regarding

his participation in the offenses. Under our holding in Unit-

ed States v. Dozier, 162 F.3d 120, 127 (D.C. Cir. 1998), the

appellant’s decision to contest his guilt at trial was at odds

with the clear and full demonstration of acceptance of respon-

sibility required by Guideline § 3E1.1(a). U.S.S.G.

§ 3E1.1(a) (‘‘If the defendant clearly demonstrates accep-

tance of responsibility for his offenses, decrease the offense

level by 2 levels.’’).

A. ACCEPTANCE OF RESPONSIBILITY

The appellant contends that the district court erred by

failing to adjust his offense level downward three levels; two

levels for accepting responsibility for his offenses, plus an

additional level for ‘‘timely providing complete information to

the government concerning his own involvement’’ in the of-

fenses of conviction. Id. § 3E1.1(a)-(b)(1). The district court

found the appellant ineligible for these downward adjust-

ments because it concluded that his was not one of those

‘‘rare situations’’ in which a defendant who puts the govern-

ment to its burden of proof at trial may still receive a

reduction for acceptance of responsibility. (The district court

never reached the § 3E1.1(b)(1) issue because a defendant’s

acceptance of responsibility under § 3E1.1(a) is a condition

precedent to a one-level adjustment for providing complete

and timely information to the government regarding his

involvement in the offenses.) We have often recognized that

the district court is in a ‘‘unique position to evaluate a

defendant’s acceptance of responsibility,’’ Id. § 3E1.1 cmt.

6

n.5, and thus its determinations regarding this issue ‘‘are

entitled, at the least, to the benefit of the clearly erroneous

standard of review.’’ United States v. Taylor, 937 F.2d 676,

680 (D.C. Cir. 1991).

1. APPLICABILITY OF RARE SITUATION EXCEPTION

Guideline § 3E1.1 allows a sentencing court to reduce a

defendant’s offense level by two levels ‘‘if the defendant

clearly demonstrates acceptance of responsibility for his of-

fense.’’ U.S.S.G. § 3E1.1(a). According to note two of the

accompanying commentary, the 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.’’ Id. § 3E1.1 cmt. n.2. Cf. 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.’’), cert. denied, 510 U.S. 1065 (1994). The com-

mentary cautions, however, that ‘‘conviction by trial TTT does

not automatically preclude a defendant from consideration for

such a reduction.’’ U.S.S.G. § 3E1.1 cmt. n.2. In ‘‘rare

situations’’ a defendant who exercises his right to trial may

nonetheless ‘‘clearly demonstrate an acceptance of responsi-

bility for his criminal conduct.’’ Id. As an example, the

commentary offers the case of a defendant who ‘‘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).’’ Id.

The appellant first argues that the rare situation exception

does not apply to him. He relies on the opening sentence of

note two which states that a downward adjustment for accep-

tance of responsibility is not meant to apply to a defendant

who puts the government to its proof at trial and ‘‘only then

admits guilt and expresses remorse.’’ Id. (emphasis added).

Because he admitted guilt and expressed remorse before he

put the government to its burden of proof at trial, he con-

tends that he need not show that his situation is ‘‘rare’’ in

order to obtain the downward adjustment.

7

The district court rejected the argument, explaining that

the appellant’s claim is at odds with the commentary because

the latter provides that, if a defendant goes to trial, the

determination of whether he has accepted responsibility for

his crimes will be determined primarily by pretrial state-

ments and conduct. As the commentary makes clear, the

adjustment is generally unavailable to a defendant who goes

to trial because that decision reflects a state of mind—

innocence—fundamentally inconsistent with acceptance of re-

sponsibility. Id. § 3E1.1 cmt. n.2. The commentary also

provides that in the rare situation in which a defendant

clearly demonstrates remorse for his crime notwithstanding

his decision to go to trial, id., his acceptance of responsibility

will nevertheless be determined by his pretrial behavior.2

This makes sense because a post-conviction show of remorse

may likely be motivated by a self-serving purpose—leniency

at sentencing.

The appellant’s position is in fact inconsistent with our

decision in Dozier, 162 F.3d at 126–28, as well as the over-

whelming weight of authority from other circuits.3 In Dozier,

the court denied the rare situation exception to a defendant

2 Note two concludes with the following sentence: ‘‘In each

instance, however, a determination that a defendant has accepted

responsibility will be based primarily upon pre-trial statements and

conduct.’’ Id.

3 See United States v. Luciano–Mosquera, 63 F.3d 1142, 1157

(1st Cir. 1995) (no acceptance of responsibility adjustment under

rare situation exception where defendant offered to plead guilty but

went to trial), cert. denied sub nom. Pagan–San–Miguel v. United

States, 517 U.S. 1234 (1996); United States v. Portillo–Valenzuela,

20 F.3d 393, 394–95 (10th Cir.) (no adjustment under rare situation

exception where defendant cooperated and confessed but went to

trial), cert. denied, 513 U.S. 886 (1994); United States v. Garcia, 987

F.2d 1459, 1461–62 (10th Cir. 1993) (no adjustment under rare

situation exception where defendant gave statement and went to

trial to contest only one charge); United States v. Davila, 964 F.2d

778, 784 (8th Cir.) (no adjustment where defendant admitted in-

8

who twice offered to plead guilty to weapons charges—of

which he was subsequently convicted—but refused to plead to

drug charges—of which he was acquitted. Id. We held that

the defendant had not clearly accepted responsibility for his

offenses notwithstanding that he offered to plead guilty be-

fore going to trial. Id. at 126–28. Although the Dozier court

concentrated on the fact that the defendant had not accepted

responsibility after trial, it nonetheless considered the rare

situation exception to have been triggered by his decision to

go to trial in the first place since he had been originally

willing to plead to certain charges but ultimately contested

his guilt at trial on all of the charges he faced. Id. We

therefore concluded that Dozier had to fit the rare situation

exception to receive the acceptance of responsibility adjust-

ment notwithstanding his initial willingness to admit partial

guilt. Id. Similarly, we conclude that the appellant too must

fit within the rare situation exception.

2. APPELLANT IS NOT IN RARE SITUATION

The appellant next argues, as he must, that he deserves a

downward adjustment for acceptance of responsibility despite

volvement in offense and offered to cooperate but went to trial),

cert. denied, 506 U.S. 964 (1992); United States v. Garcia, 917 F.2d

1370, 1377–78 (5th Cir. 1990) (no adjustment where defendant

cooperated with authorities and offered to plead guilty but went to

trial); cf. United States v. McKinney, 15 F.3d 849, 852–55 (9th Cir.

1994) (adjustment under rare situation exception available to defen-

dant who confessed, assisted authorities and attempted to plead

guilty but was rebuffed by government), cert. denied, 516 U.S. 857

(1995); United States v. Rodriquez, 975 F.2d 999, 1008–09 (3d Cir.

1992) (adjustment available to defendants where government re-

voked plea agreements); United States v. Muldoon, 931 F.2d 282,

289 (4th Cir. 1991) (adjustment for acceptance of responsibility

under rare situation exception awarded defendant who offered to

plead guilty but was rebuffed by government because he condi-

tioned plea on preserving appeal of nonfactual issue).

9

having gone to trial to contest his guilt because his situation

is in fact rare. He offers two circumstances which he be-

lieves qualify him for the rare situation exception: (1) he was

willing to plead guilty to involvement in the Hartford Street

cocaine delivery but was prevented from doing so by the

government; and (2) he went to trial on the advice of counsel

who at the time was drug addicted to an extent that impaired

her judgment and rendered her interests adverse to his. We

believe that neither of these circumstances constitutes a rare

situation within the meaning of note two of the commentary

to Guideline § 3E1.1.

Initially, the district court concluded that the appellant

‘‘must first show that his situation is one of the ‘rare’ situa-

tions in which a decrease may be granted when the defendant

goes to trial. The defendant’s pursuit of trial must be in

order to preserve issues that do not relate to factual guilt.’’

Appellant’s Rec., Tab 21 at 7. The court found it unnecessary

to decide whether either of the circumstances raised by the

appellant constituted a rare situation, however, because it

concluded that he had not clearly demonstrated acceptance of

responsibility in any event. Subsequently, on the appellant’s

motion for reconsideration, the court considered his claim

that his situation was rare in that he was willing to plead

guilty based on his involvement with the Hartford Street

package but that the government balked. It held that his

situation was not rare because the government’s bargaining

position was not the sole reason he decided to go to trial.

Instead, the district court found that various reasons motivat-

ed the appellant, including his desire not to implicate his

supplier.

Although the district court did not clearly err in concluding

that the appellant’s situation does not qualify for the excep-

tion, Taylor, 937 F.2d at 680, we believe it incorrectly stated

the law in declaring that ‘‘a defendant’s pursuit of trial must

be in order to preserve issues’’ unrelated to factual guilt to fit

the rare situation exception. Appellant’s Rec., Tab 21 at 7

(emphasis added). The commentary describes simply as an

example of the exception a defendant who goes to trial to

10

mount a constitutional challenge. U.S.S.G. § 3E1.1 cmt. n.2.4

See, e.g., United States v. De Leon Ruiz, 47 F.3d 452, 456 (1st

Cir. 1995) (‘‘The example of a constitutional challenge, given

by the guideline commentary as an exception, does not pur-

port to be an exhaustive list of exceptions.’’ (citing United

States v. Bennett, 37 F.3d 687, 696–97 (1st Cir. 1994)));

McKinney, 15 F.3d at 853 (‘‘Although the application note

lists only this single example of a case where a defendant can

receive the reduction despite going to trial, the TTT example

was not intended to be exhaustive.’’).

Our decision in Dozier dooms the appellant’s claim that his

situation is rare because the government prevented him from

pleading guilty to the Hartford Street delivery only. 162

F.3d at 126–27. In Dozier the defendant maintained that his

situation was rare ‘‘because he twice offered to plead guilty to

the only charges on which the jury convicted him.’’ Id. at

126. According to the defendant, the government compelled

him to go to trial by refusing to accept his guilty plea on the

weapons charges—of which he was later found guilty—unless

he also pleaded guilty to drug charges—of which he was later

acquitted. Id. We rejected his argument because the gov-

ernment did not preclude him from contesting his guilt on the

drug charges at trial while admitting his guilt on the weapons

charges. Id. at 127. The government’s refusal to accept the

defendant’s offer to plead ‘‘neither forced [him] to contest his

guilt on the weapons charges nor forced his attorney to

suggest in closing argument that the witnesses who said the

gun was his were not telling the truth.’’ Id. The defendant’s

decision to do otherwise on the belief that failing to contest

the gun charges would have prejudiced his defense on the

drug charges was a strategic choice, we concluded, that

ultimately proved unsuccessful: ‘‘Our point is not to second-

guess [the defendant’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 downward adjustment in the

4 ‘‘This may occur, for example, where a defendant goes to trial

to assert and preserve issues that do not relate to factual guiltTTTT’’

Id. § 3E1.1 cmt. n.2 (emphasis added).

11

event of a conviction.’’ Id. We held that the defendant’s

decision to seek an acquittal on all charges against him was

not a rare circumstance, declaring that ‘‘[t]he fact that [the

defendant’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.’’ Id.

Similarly, the government did not prevent the appellant

from accepting responsibility for conspiring to distribute and

possessing with intent to distribute the 3.9 kilograms of

cocaine delivered to the Hartford Street address. Initially,

we note that the government’s offer only required the appel-

lant to plead guilty to conspiracy under 18 U.S.C. § 371 (‘‘If

two or more persons conspire TTT to commit any offense

against the United States TTT and do any act to effect the

object of the conspiracy, each shall be fined under this title or

imprisoned not more than five years, or both.’’). The govern-

ment’s offer carried a sentence less severe than the one he

would have received had the government required him to

plead guilty to conspiracy under 21 U.S.C. § 841, the statute

on which he had been indicted.5 Nevertheless, because the

parameters of the plea agreement have been obscured by the

5 Had the appellant pleaded guilty under 18 U.S.C. § 371—

which prescribes a five-year maximum sentence—the district court

would have been required to sentence him to 60 months’ imprison-

ment. U.S.S.G. § 5G1.1(a) (‘‘Where the statutorily authorized max-

imum sentence is less than the minimum of the applicable guideline

range, the statutorily authorized maximum sentence shall be the

guideline sentence.’’). Had the offer required the appellant to plead

guilty under 21 U.S.C. § 841, he would have received a much heftier

sentence, even with the § 3E1.1 adjustment. As a career offender,

the appellant would have received an initial base offense level of 32

and a criminal history category of VI. U.S.S.G. §§ 2D1.1(a)(3), (c),

4B1.1(C). If the full three-level adjustment under section 3E1.1

had been awarded, the appellant’s offense level would have been 29.

With an offense level of 29 and a criminal history category of VI,

12

passage of time,6 compare Appellant’s Rec., Tab 16 at 12–14,

with Appellant’s Rec., Tab 15 at 14–15, Tab 16 at 14, 24, we

will consider the appellant’s contention without reference to

the statute specified in the plea agreement.

The appellant was free at trial, however, to stipulate to his

role in the Hartford Street delivery and was equally free to

simply refrain from contesting the government’s evidence

regarding that delivery. This is not the path he chose;

instead he not only denied involvement with the 2.9 kilograms

of cocaine delivered to the Featherwood Drive address but

also denied knowing the Hartford Street package contained

drugs. Indeed the appellant denied participating in the

conspiracy at all. But the government’s refusal to allow the

appellant to plead guilty only to the Hartford Street offense

in no way required his trial counsel to submit in her opening

statement that the evidence would show that the appellant

was not involved in any conspiracy, that he wondered what

his co-conspirator had done when the authorities surrounded

the Hartford Street address and that he only became aware

that ‘‘something was afoot’’ when he inspected the package

containing the cocaine. Record Material for Appellee (Appel-

lee’s Rec.), Tab C at 128–29. The government also did not

compel the appellant’s counsel to allege that the government

was ‘‘pointing a finger at the wrong guy’’ who was swept into

a criminal conspiracy by mistakenly ‘‘doing someone a favor.’’

Appellee’s Rec., Tab C at 129–30. As in Dozier, the appel-

his sentencing range would have been 151–188 months. Id. ch. 5,

pt. A (Sentencing Table). Accordingly, had the appellant been able

to accept the deal he complains the government refused to offer, the

best he could have hoped for (barring a departure under Guideline

section 5K) was a sentence more than twice as long as the one the

government’s offer carried.

6 Apart from the recollections of the relevant players, the only

evidence of a plea agreement in the record is a draft agreement

sent to the appellant’s counsel on July 19, 1994.

13

lant was not put in a rare situation by the government;

rather, he made a strategic decision to roll the dice for an

acquittal on all charges and came up short. See 162 F.3d at

127. Accordingly, we conclude that the district court did not

clearly err in rejecting the appellant’s claim that the govern-

ment’s ‘‘forcing’’ him to trial made his situation ‘‘rare’’ so that

he remained eligible for an acceptance of responsibility ad-

justment.7 Id.

7 The appellant relies on an Eighth Circuit case, United States

v. Guerrero–Cortez, 110 F.3d 647 (8th Cir.), cert. denied sub nom.

Gonzalez v. United States, 522 U.S. 1017 (1997), in which the court

reversed the district court’s denial of the acceptance of responsibili-

ty adjustment, holding that it erred in ignoring evidence of the

defendant’s unsuccessful efforts to plead guilty based on his involve-

ment with the amount of drugs for which the court, at sentencing,

found him responsible. Id. at 654–56. The Guerrero–Cortez court

reasoned that the government thwarted the defendant’s attempt to

plead guilty:

[Defendant] was at all times ready to plead guilty to two

kilograms. The government, however, refused to accept his

plea unless he would admit to his involvement with five kilo-

grams. By refusing to accept [the defendant’s] guilty plea, the

government gave [him] no choice but to go to trial. Ultimately,

however, the district court found [the defendant] responsible

for only two kilograms.

Id. at 656. The court found the defendant to have been ‘‘forced’’ by

the government into a rare situation in which his decision to

proceed to trial did not preclude him from receiving credit for

acceptance of responsibility. Id. at 655–56. The court therefore

held that ‘‘it was clearly erroneous for the district court to conclude

that [defendant’s] acceptance of responsibility came at sentencing,

and not at the time of trial.’’ Id. at 656. The district court

distinguished Guerrero–Cortez primarily on the facts, explaining

that it bore only a superficial resemblance to the appellant’s case

because the defendant in Guerrero–Cortez went to trial solely

because the government would not allow him to plead guilty. In

contrast, the appellant offered several reasons to explain his deci-

sion to reject the plea agreement: his unwillingness to implicate

14

The appellant also maintains that, in finding that his situa-

tion was not rare, the district court improperly considered his

unwillingness to implicate8 his supplier by testifying against

him. His argument presents a question of first impression in

our Circuit: May a sentencing court consider a defendant’s

refusal to implicate a co-conspirator in denying him an accep-

tance of responsibility adjustment? Today we join those

circuits that have answered this question affirmatively.9 To

receive an adjustment under Guideline § 3E1.1(a), a defen-

others, including his supplier; his trial counsel’s (erroneous) advice

that his grand jury testimony could not be used against him if he

‘‘voided’’ the plea agreement and demanded a trial; and his trial

counsel’s belief that his opportunity to plead was dependent upon a

co-conspirator entering a plea agreement.

8 Although the appellant repeatedly identified the source of the

narcotics when testifying before the grand jury, he refused to

testify against the source once the latter was apprehended.

9 The circuits are split on the question whether a sentencing

court may consider evidence of the defendant’s refusal to implicate

co-conspirators to deny an adjustment under Guideline § 3E1.1.

Compare, e.g., United States v. Larkin, 171 F.3d 556, 558–59 (7th

Cir.) (holding that ‘‘it was clearly permissible for the district court

to condition the reduction for acceptance of responsibility on [the

defendant’s] willingness to provide’’ information identifying the

drug source), cert. denied, 528 U.S. 883 (1999); United States v.

Nunez–Rodriguez, 92 F.3d 14, 19–22 (1st Cir. 1996) (‘‘no sound

basis for a general rule barring a defendant’s voluntary cooperation

in truthfully identifying criminal associates from consideration by

the sentencing court in determining the genuineness of the defen-

dant’s remorse’’); United States v. Eberspacher, 936 F.2d 387, 389–

90 (8th Cir. 1991) (no error in relying on defendant’s refusal to

name source of drugs to deny acceptance of responsibility adjust-

ment); with, e.g., United States v. Leonard, 50 F.3d 1152, 1158–59

(2d Cir. 1995) (defendant need not assist authorities in incriminating

others to receive one-level reduction under § 3E1.1(b)(1)); United

States v. Vance, 62 F.3d 1152, 1158 (9th Cir. 1995) (error in relying

on defendant’s refusal to cooperate with authorities by revealing

and testifying against drug supplier to deny acceptance of responsi-

bility adjustment); McKinney, 15 F.3d at 854 (defendant remained

15

dant must ‘‘demonstrate[ ] acceptance of responsibility for his

offense’’ by ‘‘truthfully admitting the conduct comprising the

offense(s) of conviction, and truthfully admitting or not falsely

denying any additional relevant conduct for which the defen-

dant is accountable under § 1B1.3 (Relevant Conduct).’’

U.S.S.G. § 3E1.1(a) & cmt. n.1(a). Such an admission does

not require a defendant to ‘‘volunteer, or affirmatively admit,

relevant conduct beyond the offense of conviction.’’ Id. A

defendant ‘‘may remain silent in respect to relevant conduct

beyond the offense of conviction without affecting his ability

to obtain a reduction under this subsection.’’ Id. But ‘‘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.’’ Id.

Although the language of the Guideline and its commentary

does not specify all of the factors a district court may

consider in determining whether a defendant has ‘‘truthfully

admitt[ed] the conduct comprising the offense(s) of convic-

tion,’’ § 3E1.1(a) & cmt. n.1 (‘‘appropriate considerations in-

clude, but are not limited to’’); see Nunez–Rodriguez, 92 F.3d

at 20 (‘‘[P]ersonal responsibility may be manifested in various

ways and the acceptance of responsibility determination un-

der § 3E1.1 necessarily envisions a fact-specific inquiry in

each case.’’), the Guidelines vest a sentencing court with ‘‘the

latitude to consider all reliable, probative indicia tending to

demonstrate, or countervail, the genuineness of the particular

defendant’s remorse.’’ Id.

We conclude that under Guideline § 3E1.1 the sentencing

court may, in the exercise of its discretion, require a defen-

dant to satisfy his obligation to truthfully admit the ‘‘conduct

comprising the offense(s) of conviction’’ by disclosing relevant

information beyond the mere technical elements of the of-

fense(s), including information regarding other criminal par-

eligible for reduction to offense level for acceptance of responsibility

notwithstanding his refusal to incriminate co-conspirators).

16

ticipants. U.S.S.G. § 3E1.1(a) & cmt. n.1(a). In so holding,

we agree with the Seventh Circuit that a sentencing court

may require a defendant seeking an acceptance of responsibil-

ity adjustment to provide ‘‘a ‘candid and full unraveling’ of the

circumstances surrounding the offense of conviction, including

information about the methods used by the defendant to

commit his crime and the source of the contraband he pos-

sessed at the time of the arrest.’’ Larkin, 171 F.3d at 558

(quoting United States v. Hammick, 36 F.3d 594, 599–600

(7th Cir. 1994)). A defendant’s willingness to implicate others

may not in every case provide a ‘‘bona fide indicium,’’ Nunez–

Rodriguez, 92 F.3d at 20, of acceptance of responsibility and,

conversely, his unwillingness may not always signal a lack of

remorse. Vance, 62 F.3d at 1158 (‘‘A cunning but not contrite

defendant may buy his way out of trouble by providing

evidence against someone else, and an entirely contrite defen-

dant may out of fear, ignorance of information useful to the

prosecutors, or other reason, fail to provide assistance.’’);

Nunez–Rodriguez, 92 F.3d at 20. In the first instance,

however, it is up to the district court to assess the defendant’s

remorse, which may include probing the reasons the defen-

dant exposes, or refuses to expose, his associates. Nunez–

Rodriguez, 92 F.3d at 20.10 We think the district court here

10 Our holding should come as no surprise; we hinted at it in

United States v. Taylor, 937 F.2d 676, 680 (D.C. Cir. 1991). There

we held that the district court did not err in refusing to give an

acceptance of responsibility adjustment to defendants who had

pleaded guilty to violating 18 U.S.C. § 922(g)(1) (possession of

firearm by convicted felon) because they offered an ‘‘ ‘inherently

incredible’ ’’ explanation for cruising around in a pickup truck while

carrying loaded firearms and wearing bullet-proof vests. Id. at 680.

We explained that ‘‘the scope of the district court’s wide discretion

under section 3E1.1 is not restricted to an evaluation of the

defendant’s acceptance of responsibility for the narrow offense of

conviction and its essential elements’’ and we concluded that ‘‘the

district court properly interpreted the guideline to require a truth-

ful and complete explanation of, and a genuine acceptance of

responsibility for, all of the circumstances surrounding the defen-

dants’ firearm possession offense.’’ Id. (emphasis added).

17

correctly considered the appellant’s unwillingness to name his

source in concluding that he was not in a rare situation.

Finally, the appellant maintains that his situation is rare

because he relied on the advice of his drug-impaired trial

counsel. The appellant’s theory is that his lawyer encouraged

him to proceed to trial so she could earn additional compensa-

tion to support her addiction. His trial counsel ultimately

pleaded guilty to two counts of theft of government property

for false claims she submitted in connection with legal ser-

vices she never provided to clients she was appointed to

represent. The district court rejected the appellant’s argu-

ment, explaining that his allegation was more properly styled

as a Sixth Amendment ineffective assistance of counsel

claim.11 We conclude that the district court did not clearly

err in rejecting it at sentencing.12

B. LIMITED EXAMINATION OF TRIAL COUNSEL

The appellant challenges the district court’s limiting of his

examination of his trial counsel at the re-sentencing hearing.

The district court sustained the government’s objection to the

question the appellant’s then-counsel posed to his trial coun-

sel regarding ‘‘the nature of her problem in 1994,’’ apparently

referring to her false claims conviction. Appellant’s Rec.,

Tab 16 at 16. The court explained that ‘‘there’s no need to go

in to that’’ but nevertheless allowed defense counsel to proffer

11 Cf. United States v. Day, 285 F.3d 1167, 1172 (9th Cir. 2002)

(remanding defendant’s collateral appeal to determine whether

counsel’s incompetent advice precluding acceptance of responsibility

adjustment constituted prejudice under Strickland v. Washington,

466 U.S. 668 (1984)).

12 Because we conclude that the appellant was properly denied

a two-level downward adjustment to his offense level under

§ 3E1.1(a), we need not reach the merits of his claim to an

additional one-level reduction for ‘‘timely providing complete infor-

mation to the government concerning his own involvement in the

offense[.]’’ U.S.S.G. § 3E1.1(b)(1). A defendant must qualify for

an adjustment under § 3E1.1(a) before he is eligible for the addi-

tional one-level adjustment under § 3E1.1(b)(1). See id.

18

for the record that the appellant’s trial counsel had a ‘‘crimi-

nal difficulty.’’ Id. The appellant now maintains that had

the district court not foreclosed this avenue of inquiry, ‘‘there

was a substantial possibility’’ he would have been able to elicit

an admission from his trial counsel that she advised him to go

to trial (rather than use a strategy more consistent with

acceptance of responsibility) because she needed the money a

trial would bring in order to support her drug addiction or,

‘‘at least,’’ that she was less than conscientious in her repre-

sentation because her money problem ‘‘had occurred to her.’’

Br. for Appellant at 32. We conclude that the district court

did not abuse its discretion by circumscribing the appellant’s

effort to inquire further into the nature of his trial counsel’s

‘‘criminal difficulty.’’

Preliminarily, there is some reason to question whether the

district court in fact prevented the appellant from examining

his trial counsel in view of his then-counsel’s interpretation of

the district court’s ruling at the time. Although the court

sustained the government’s objection regarding the appel-

lant’s inquiry into his trial counsel’s ‘‘criminal difficulty,’’

shortly thereafter his then-counsel pursued questioning de-

signed to elicit the desired admission. The district court did

not interrupt counsel when he asked the appellant’s trial

counsel whether ‘‘it is fair to say that in the summer of 1994

you had a great need for money.’’ Appellant’s Rec., Tab 16 at

16. Upon his trial counsel’s answer to this question, however,

the appellant’s then-counsel abruptly retreated, explaining

that he ‘‘would just like to argue the exhibits rather than

have to ask her these questions.’’ Id. at 17 (emphasis added).

Defense counsel’s decision to argue from the exhibits thus

appeared to be a strategic maneuver—not one dictated by the

court.

A ruling regarding the admission of evidence during a

sentencing hearing is reviewed for abuse of discretion. See

FED. R. CRIM. P. 32; U.S.S.G. § 6A1.3 cmt.; United States v.

Small, 74 F.3d 1276, 1287 (D.C. Cir.) (‘‘[T]he sentencing court

TTT is to determine the appropriate procedure for gathering

evidenceTTTT’’), cert. denied, 517 U.S. 1229 (1996). We cannot

19

say that the district court abused its discretion here. It

allowed the appellant’s counsel to argue based on exhibits—

his trial counsel’s indictment and the government’s memoran-

dum in aid of her sentencing—that her drug addiction im-

paired her judgment and made her interests adverse to his

and that, as a consequence, she supplied him with self-serving

advice. Thus the appellant had an adequate opportunity to

present his theory to the district court and he in fact did so.

The appellant relies on United States v. Rodriguez, 975

F.2d 999, 1009 (3rd Cir. 1992), to argue that the court did not

adequately consider the role his trial counsel played in his

decision to proceed to trial. Br. for Appellant at 31–32. The

Rodriguez court held that the district court erred by ‘‘failing

to consider the reasons for which [the defendants] refused to

plead to the entire indictment, along with the apparent validi-

ty of those reasons.’’ 975 F.2d at 1009. Here, however, the

district court held an evidentiary hearing during which wit-

nesses offered different reasons why the appellant went to

trial. The appellant’s counsel was allowed to offer an expla-

nation for his decision to go to trial based on his trial

counsel’s testimony and exhibits. And the appellant himself

provided a reason that calls into question the claim that it was

his trial counsel’s compromised advice that drove him to trial.

Accordingly, we conclude that the district court did not abuse

its discretion in limiting examination of the appellant’s trial

counsel at the sentencing hearing.

III. CONCLUSION

For the foregoing reasons, the sentence imposed by the

district court is affirmed.

So ordered