United States Court of Appeals

For the Eighth Circuit

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No. 16-2687

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Sheehan R. Grant

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri - Joplin

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 Submitted: February 10, 2017

 Filed: May 26, 2017

[Unpublished] 

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Before SMITH, GRUENDER, and BENTON, Circuit Judges.

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PER CURIAM.

Sheehan Grant was charged with interstate travel with intent to engage in illicit

sexual acts, in violation of 18 U.S.C. § 2423(b). Two days before trial, Grant waived

The Honorable Lavenski R. Smith became Chief Judge of the United States 1

Court of Appeals for the Eighth Circuit on March 11, 2017.
his right to a jury trial. On the morning of trial, Grant withdrew his not-guilty plea

and entered a plea of nolo contendere. Grant’s presentence investigation report

recommended that he not receive credit for acceptance of responsibility, noting that

Grant continued to deny that he committed the offense at his change-of-plea hearing.

At sentencing, the district court denied Grant credit for acceptance of responsibility,

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recalling the events leading up to the entry of the nolo contendere plea. The court

then imposed a mid-Guidelines range sentence of 156 months’ imprisonment,

followed by 10 years’ supervised release. Grant argues that the district court erred in

declining to grant an offense-level reduction for acceptance ofresponsibility. For the

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reasons explained below, we affirm.

Grant claims that he was entitled to the reduction because he waived his right

to a jury, admitted that the government could adduce sufficient evidence to prove him

guilty, and changed his plea from not guilty to nolo contendere. But,

The Honorable M. Douglas Harpool, United States District Judge for the

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Western District of Missouri. 

Grant also argues that his nolo contendere plea was not voluntary because the

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plea was in his best interest only if he were afforded a reduction for acceptance of

responsibility, which he did not receive. However, this argument is not properly

before us because Grant did not move to withdraw his plea in the district court. See

United States v. Foy, 617 F.3d 1029, 1033–34 (8th Cir. 2010). 

Further, Grant argues that the district court violated Federal Rule of Criminal

Procedure 11 by failing to establish a factual basis for Grant’s nolo contendere plea

and failing to consider the “public interest in the administration of justice.” See Fed.

R. Crim. P. 11(a)(3). However, Rule 11’s factual-basis requirement does not apply

to pleas of nolo contendere. See Fed. R. Crim. P. 11(b)(3) (“Before entering judgment

on a guilty plea, the court must determine that there is a factual basis for the plea.”

(emphasis added)). And to the extent that the court failed to consider the public

interest in accepting Grant’s plea, such error was harmless because it did not affect

Grant’s substantial rights. See Fed. R. Crim. P. 52(a).

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“[d]eterminations as to acceptance of responsibility . . . are factual findings that we

review only for clear error.” United States v. Jones, 539 F.3d 895, 897 (8th Cir.

2008); see also United States v. Winters, 416 F.3d 856, 860 (8th Cir. 2005) (“A

district court’s factual determination on whether a defendant has demonstrated

acceptance of responsibility is entitled to great deference and should be reversed only

if it is so clearly erroneous as to be without foundation.”). “We do not substitute our

judgment for that of the district court because the district court is in a better position

to assess whether a defendant has accepted responsibility and to assessthe credibility

of witnesses.” Jones, 539 F.3d at 897; see also United States v. Quintana, 340 F.3d

700, 702 (8th Cir. 2003) (“It is . . . well established that in sentencing matters a

district court’s assessment of witness credibility is quintessentially a judgment call

and virtually unassailable on appeal.” (ellipsis in original) (quotations omitted)). 

In declining to grant a reduction for acceptance of responsibility, the district

court heard argument from both parties, considered the circumstances and timing of

Grant’s change of plea, and stated:

THE COURT: All right. Well, I want to do everything I can to

encourage people who are guilty of these crimes to admit them so that

victims don’t have to testify. In this case there was no actual victim so

the benefit of him pleading is somewhat less to a victim. Am I allowed

to give half credit? Is it two or nothing?

[Prosecutor]: I believe it’s two or nothing, Your Honor. I think in

imposing sentence you can consider his waiver of jury trial and things

along those lines but I think as a legal matter it’s two or nothing.

THE COURT: Well, I’m not inclined to do that anyway. I don’t

think he’s entitled to—I remember the plea hearing and I also know that

we were in the morning of trial. The Court is going to find—deny the

acceptance of responsibility credit. I’m going to find the correct offense

level is 151 to 188.

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In other words, the district court determined that Grant’s last-minute plea

change was inconsistent with finding that he had accepted responsibility for his

offense. Upon review of the transcript from the change-of-plea hearing, we note that

Grant never expressly accepted responsibility for the offense and indicated that his

mother could testify to his innocence. Thus, we find no clear error in the district

court’s denial of the reduction for acceptance of responsibility.

Accordingly, we affirm the judgment of the district court.

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