United States v. Richard Aichele

KOZINSKI, Circuit Judge,

dissenting in part:

In pressing a legal doctrine to the limits of its logic, we sometimes reach a wholly incongruous result. When that incongruity amounts to a constitutional infirmity, we must reexamine the doctrine, or, at the very least, limit its reach so as to avoid the unconstitutional result.

I

After correctly disposing of Aichele’s substantive claims, the majority turns to his arguments that he was improperly sentenced. I have no quarrel with the majority’s decision that the offense involved 100 grams or more of methamphetamine. Majority op. at 766-67. I do have much difficulty, however, with the majority’s conclusion that defendant was not entitled to a two-level reduction for acceptance of responsibility. I cannot say that my colleagues’ reliance on United States v. Skillman, 922 F.2d 1370 (9th Cir.1991), is misplaced. Indeed, Skillman is only the last in a long line of cases consistently pointing in the same direction. Yet as applied to this defendant’s situation, the Skillman line of reasoning leads to a patently unconstitutional result. Absent controlling authority that clearly requires this result— and neither Skillman nor its precursors reach quite so far — I believe we can and should avoid unconstitutionality by holding that the power of logic stops where the barriers erected by the Constitution begin.

II

There is a hoary tradition in sentencing law that permits district judges to take into account a convicted defendant’s acceptance of responsibility in imposing sentence. Corbitt v. New Jersey, 439 U.S. 212, 223 , *768 99 S.Ct. 492, 499 , 58 L.Ed.2d 466 (1978) (“it is not forbidden to extend a proper degree of leniency in return for guilty pleas”); United States v. Chavez, 627 F.2d 953, 956 (9th Cir.1980) (following Corbitt). The sentencing guidelines have regularized this practice by authorizing a two-level reduction for acceptance of responsibility. U.S.S.G. § 3E1.1. How much contrition a defendant must show for his crime varies somewhat with the sensibilities of the sentencing judge, but there is an irreducible minimum that every acceptance of responsibility must contain: The defendant must admit his criminal culpability. Id. (“If the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct, reduce the offense level by 2 levels.”); Skillman, 922 F.2d at 1378 -79 & n. 11 (defendant who refuses to testify and after conviction refuses to accept responsibility for crime for which he was convicted has shown no contrition and may not be awarded two-level reduction); United States v. Oliveras, 905 F.2d 623, 629 (2d Cir.1990) (per curiam) (defendant “must accept responsibility for all facets of the crime to which he either pled guilty or of which he was convicted”).

This requirement puts defendants like Aichele in a really tight box. Aichele, it will be recalled, did not testify at his trial and has maintained his innocence all along. At the same time, he preserved for appeal several non-frivolous, substantive issues. While Aichele will learn today that his claims of error were to no avail, he was justified in harboring a more than ephemeral hope that his conviction would be reversed and that he would be acquitted after an error-free trial.

Life is not always fair, however, and a defendant must suffer his sentence before he can take an appeal, much less learn of its outcome. If a defendant like Aichele wants to be eligible for the two-level reduction for acceptance of responsibility, he must break his silence and tell the judge all about how he done the dirty deed and how sorry he is about it. A defendant is well advised to play his part in this mini-morality play, because a two-level reduction can mean a lot of time off his sentence: In this case we’re talking about more than six years.

By accepting responsibility, however, a defendant effectively waives his right to an appeal and a retrial for, having uttered the words incriminating himself, he can never take them back. Should he press on with his appeal and obtain a reversal, the prosecution would be entitled to retry the defendant, using as evidence his heart-felt confession and words of contrition. See United States v. Perez-Franco, 873 F.2d 455, 460-61 (1st Cir.1989); United States v. Piper, 918 F.2d 839, 840-41 (9th Cir.1990) (per curiam) (following Perez-Franco); Oliveras, 905 F.2d at 626 (defendant’s statements to probation officer in presen-tence proceedings admissible in subsequent criminal prosecutions unless immunized); United States v. Rogers, 899 F.2d 917, 924-25 (10th Cir.1990) (acceptance of responsibility is admissible in subsequent criminal proceedings); United States v. Gordon, 895 F.2d 932, 936 (4th Cir.1990) (admission to probation officer can be used against defendant after successful appeal). Why then bother with a retrial? Indeed, why bother with an appeal? For what jury would acquit a defendant who has uttered a confession with such fervor as to persuade a district judge that he accepted “personal responsibility for his criminal conduct”?

A defendant is thus put to a brutal choice between obtaining a shorter sentence and giving up his right to appeal, and preserving intact his right to appeal but giving up the opportunity to plead for a more lenient sentence. I realize that criminal trials are not for the faint of heart and that criminal defendants often must choose among unpalatable alternatives but this, it seems to me, goes too far.

Ill

Our cases have relied on two rationales in reconciling the tension between a defendant’s right not to incriminate himself and the legal system’s proclivity for rewarding those who fess up. The first is the notion *769 that reduction of a sentence for acceptance of responsibility is merely the granting of a benefit, not the denial of a right. See, e.g., United States v. Gonzales, 897 F.2d 1018, 1021 (9th Cir.1990); Skillman, 922 F.2d at 1379 n. 11. Presumably, a benefit may be denied pretty much for any reason, no matter how that denial might affect the exercise of the defendant’s constitutional rights.

There is not much one can really say about this line of reasoning, except that it will persuade only those who are already persuaded. As Judge Reinhardt has pointed out, whether a sentencing disparity is viewed as a burden or a benefit depends “upon whether the shorter sentence is compared to the longer or the longer to the shorter.” United States v. Carter, 804 F.2d 508, 517 (9th Cir.1986) (dissent). In any event, the limits of this rationale are surely reached where a defendant is required to give up the “benefit” of a shorter sentence in order to preserve his right to an effective appeal. See, e.g., Lefkowitz v. Turley, 414 U.S. 70 , 94 S.Ct. 316 , 38 L.Ed.2d 274 (1973) (state may not disqualify contractors from working for public agencies because they refuse to waive fifth amendment rights); Garrity v. New Jersey, 385 U.S. 493 , 87 S.Ct. 616 , 17 L.Ed.2d 562 (1967) (state may not threaten loss of public employment); Uniformed Sanitation Men Ass’n v. Commissioner of Sanitation, 392 U.S. 280 , 88 S.Ct. 1917 , 20 L.Ed.2d 1089 (1968) (same); Gardner v. Broderick, 392 U.S. 273 , 88 S.Ct. 1913 , 20 L.Ed.2d 1082 (1968) (same).

The second rationale employed by our cases in rejecting similar claims by criminal defendants might be characterized as the rough-and-tumble theory of justice: While “Section 3E.1.1 may add to the dilemmas facing criminal defendants, ... no good reason exists to believe that 3E.1.1 was intended to punish anyone for exercising rights.” Gonzales, 897 F.2d at 1021 (quoting United States v. Henry, 883 F.2d 1010, 1011 (11th Cir.1989)). In Gonzales , the defendant claimed that section 3E1.1 burdened his right to testify at trial because, once having proclaimed his innocence before the jury, it would be difficult to then turn around at sentencing and admit his guilt to the judge. Following the lead of the Eleventh Circuit in Henry , we rejected that argument: “The pursuit by a defendant of a trial strategy of denying culpability may lower his chances of obtaining the reduction under Section 3E1.1 but these consequences do not constitute an infringement of the fifth amendment privilege against self-incrimination.” Id.

Gonzales and Henry are perhaps best understood as cases where there was no more than a tension between the defendant’s right to testify at trial and his hope for a reduced sentence. Exercising the right to testify might lower a defendant’s chances of getting the reduction, but it would not render it absolutely impossible. Presumably a defendant could try to obtain an acquittal by protesting his innocence and then later come clean and bow and scrape before the district judge in seeking a reduced sentence. It would be tough but, one might maintain, it would not be impossible. The limit of this logic too seems to be reached where it becomes impossible to obtain the sentence reduction and preserve the right to an effective appeal.

Admittedly, we came very close in Skill-man to approving the result we reach today. Skillman, like Aichele, refused to testify at trial and persisted in maintaining his silence even after the jury found him guilty. Finding that “there was no indication of contrition on the part of Skillman before or after he was convicted,” we reversed the district court’s order granting a two-level reduction for acceptance of responsibility. 922 F.2d at 1379 . Skillman is factually indistinguishable from this case and I cannot blame my colleagues for relying on it.

Nevertheless, there is no indication that Skillman considered and rejected the argument Aichele makes today. Indeed, in a footnote, Skillman distinguished United States v. Watt, 910 F.2d 587, 592 (9th Cir.1990), where we held that “a sentencing court cannot consider against a defendant any constitutionally protected conduct — ” Skillman, 922 F.2d at 1379 n. 11. Had *770 Skillman articulated the argument that Ai-chele makes, the Skillman court would not have dismissed it so lightly. In any event, Skillman does not address the issue and I am reluctant to say that a significant constitutional argument will be deemed foreclosed by silence in an earlier case where it is not at all clear that the argument was even presented.

IY

There does remain the hard fact that defendant has never admitted his guilt and begged forgiveness, as the Guidelines require. I agree with my colleagues that we cannot simply give defendant the benefit of the two-level reduction without requiring that he subject himself to the self-flagella-tory ritual contemplated by the Guidelines; even then the district judge would have to exercise his discretion whether or not to grant the reduction. All of this, of course, is beyond our competence.

This is not an insuperable problem, however. Having once resolved Aichele’s appeal against him, there is now no impediment to his attempt to comply with the requirements of Guideline 3E1.1. I would therefore vacate his sentence and remand with instructions that the district court give defendant an opportunity to qualify for the two-level reduction for acceptance of responsibility. This, it seems to me, is a simple solution, one that reconciles all of the government’s legitimate interests and one that preserves the defendant’s constitutional rights. It’s not too much to ask for.