[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 95-8120

 

D. C. Docket No. 1:94-CR-149

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HARRY LEON SMITH, III,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Northern District of Georgia

 

(October 31, 1997)

Before HATCHETT, Chief Judge, TJOFLAT,

ANDERSON, EDMONDSON, COX, BIRCH, DUBINA,
2

BLACK, CARNES, BARKETT, Circuit Judges*, and

HILL**, Senior Circuit Judge.

DUBINA, Circuit Judge:

_____________________________

*Judge Frank M. Hull was appointed after this

case was orally argued, but was an active

member of the court at the time the case was

decided. She has elected not to participate

in the decisional process. 

**Senior U.S. Circuit Judge Hill elected to

participate in this decision pursuant to 28

U.S.C. §46(c). 
1 § 3E1.1. Acceptance of Responsibility

(a) If the defendant clearly

demonstrates acceptance of

responsibility for his offense,

decrease the offense level by 2

3

I.

Appellant Harry Leon Smith, III, (“Smith”)

was indicted by a federal grand jury in the

Northern District of Georgia in a one- count

indictment. The indictment charged Smith with

running a check-kiting scheme in violation of

18 U.S.C. § 1344. Initially, Smith entered a

plea of not guilty to the indictment but later

changed his plea to guilty. The probation

officer recommended in her initial presentence

report (“PSR”) that Smith receive a threelevel reduction in his offense level for

acceptance of responsibility pursuant to

U.S.S.G. § 3E1.1. 1

 After Smith objected to
levels.

(b) If the defendant qualifies

for a decrease under subsection

(a), the offense level

determined prior to the

operation of subsection (a) is

level 16 or greater, and the

defendant has assisted

authorities in the investigation

or prosecution of his own

misconduct by taking one or more

of the following steps:

(1) timely providing

complete information to

the government

concerning his own

involvement in the

offense; or

(2) timely notifying

authorities of his

intention to enter a

plea of guilty, thereby

permitting the

government to avoid

preparing for trial and

permitting the court to

allocate its resources

efficiently,

decrease the offense level by 1

additional level.

4
2 The court also ordered that Smith pay

restitution in the amount of $269,049.40 and

imposed a $50.00 special assessment.

5

several paragraphs of the PSR, the probation

officer withdrew her recommendation for the

reduction. However, at sentencing, Smith

still sought a reduction for acceptance of

responsibility. The district court expressly

found that Smith had not manifested acceptance

of responsibility and denied Smith’s request.

The district court determined that the

base offense level was 15 and sentenced Smith

to 18 months imprisonment, followed by five

years of supervised release.2

 The government

then pointed out that the correct offense

level was 17, requiring a sentence in the 24-

30 month range. The district judge admitted

his error and granted a two-level reduction
6

for acceptance of responsibility so that he

would not be forced to increase the previously

imposed 18 month sentence:

I’ll grant him the two-level decrease

for acceptance of responsibility ....

Because I’ve already imposed the 18

months’ sentence and I hate to go back

and change it and increase it. I don’t

mind reducing it, but I hate to

increase it.

(R3-27-28). The district court’s decision was

not based on reconsideration of its finding

that Smith failed to accept responsibility.

The record clearly demonstrates that this

award was based on the court’s reluctance to

increase Smith’s sentence above the 18 month

term of imprisonment which the court already

had imposed. Thus, Smith received a two-level

reduction that he did not deserve.

Surprisingly, he appealed.
7

A panel of this court remanded the case to

the district court. Concerned that the

district court’s decision to deny the §

3E1.1(b) reduction was based on Smith

exercising his right to object to the PSR, the

panel instructed the district court to

consider whether Smith was entitled to an

additional one-level reduction for acceptance

of responsibility under U.S.S.G. § 3E1.1(b).

United States v. Smith, 106 F.3d 350 (11th

Cir. 1997) (as amended). This court then

vacated that decision and ordered rehearing en

banc. United States v. Smith, 112 F.3d 473

(11th Cir. 1997).

II.

The determination of whether a defendant

has adequately manifested acceptance of

responsibility is a flexible, fact sensitive
8

inquiry. See Joiner v. United States, 103 F.3d

961, 963 (11th Cir.), cert. denied, 117 S. Ct.

1857 (1997); United States v. Scroggins , 880

F.2d 1204, 1215 (11th Cir. 1989). The panel

held that:

[A] defendant may not be denied a

reduction [in offense level for

acceptance of responsibility] under §

3E1.1 solely for exercising the right

to challenge the legal propriety of his

punishment under the criminal code

and/or sentencing guidelines.... [I]t

is impermissible to consider the

challenge to the legal propriety of a

sentence. 

Smith, 106 F.3d at 352. With this language,

the panel opinion went too far. Our case law

permits a district court to deny a defendant

a reduction under § 3E1.1 based on conduct

inconsistent with acceptance of

responsibility, even when that conduct

includes the assertion of a constitutional
9

right. See United States v. Jones, 934 F.2d

1199, 1200 (11th Cir. 1991); United States v.

Henry, 883 F.2d 1010, 1011 (11th Cir. 1989).

In addition, frivolous legal challenges could

suggest to the district court that the

defendant has not accepted responsibility for

his conduct. Therefore, we hold that a

district court may consider the nature of such

challenges along with the other circumstances

in the case when determining whether a

defendant should receive a sentence reduction

for acceptance of responsibility. 

In the present case, although Smith

referred to his objections to the PSR as

“legal objections based on legal arguments”

(R3-15), the record does not support this

characterization. In fact, Smith, in his

objections to the PSR, contended that he did
3 We note from the record in this case

that the government did not appeal. We assume

that is because the government, under the

terms of the plea agreement with Smith, agreed

to recommend a reduction for acceptance of

responsibility. If the government had taken

an appeal, however, we would vacate and remand

Smith’s sentence because, as previously

stated, the district court did not sentence

Smith within the correct guideline range.

10

not possess fraudulent intent with respect to

both offense conduct and relevant conduct.

These objections were factual, not legal, and

amounted to a denial of factual guilt. 

 The panel opinion remanded the case to

the district court to determine whether Smith

was entitled to an additional one-level

reduction. We see no need to remand this case

for resentencing. Smith received a windfall

and clearly suffered no prejudice from the

district court’s sentencing error. 3

Accordingly, we affirm Smith’s sentence.
11

AFFIRMED.