1The Honorable Linda R. Reade, United States District Judge for the Northern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-1896

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the Northern

* District of Iowa.

Wesley Eric Card, *

* 

Appellant. *

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Submitted: October 18, 2004

Filed: December 9, 2004

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Before MORRIS SHEPPARD ARNOLD, BOWMAN, and RILEY, Circuit Judges.

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RILEY, Circuit Judge.

A father’s obligation to support his child, when able, is fundamental.

Supporting one’s child is the essence of being a responsible adult. Wesley Eric Card

(Card) flunked this test and pled guilty to two counts of willful failure to pay child

support, in violation of 18 U.S.C. §§ 228(a)(3) and (c)(2). The district court1

sentenced Card to 21 months imprisonment. Card appeals, arguing the district court
2The Honorable John A. Jarvey, Chief Magistrate Judge, United States District

Court for the Northern District of Iowa.

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erred in denying him a sentence reduction for acceptance of responsibility. We

affirm.

I. BACKGROUND

On June 24, 1988, Card’s marriage to his wife, Lynn, was dissolved in a

Minnesota state court. The dissolution decree ordered Card to pay $348.48 per month

in child support. Card made child support payments for six months in 1988, but never

made another payment. As of April 14, 2004, Card owed Lynn unpaid child support

totaling $119,533.54. On December 10, 1996, an Iowa state court ordered Card to

pay child support to Janine Trostheim (Trostheim) for support of their daughter,

Jessica. This obligation ended on August 16, 2000, when Jessica turned eighteen

years old. As of April 14, 2004, Card owed Trostheim $18,622.00 in unpaid child

support.

Card was indicted on two counts of failure to pay support for a child who

resides in another state, in violation of 18 U.S.C. §§ 228(a)(3) and (c)(2). On

November 5, 2003, Card appeared before a United States magistrate judge2 to plead

guilty; however, the magistrate judge adjourned the hearing after concluding Card

had not said anything to suggest he accepted responsibility for his offenses or that he

was pleading guilty. On November 6, 2003, Card again appeared before the

magistrate judge to plead guilty. The government informed the court of the evidence

it would present if Card chose to go to trial, including information Card had the

ability and equipment to work, but “avoided obtaining any assistance or evaluation

in order to assist him in obtaining . . . employment.” When the court asked how much

of the government’s account was true, Card replied, “All of it,” and thereafter Card

pled guilty. The district court accepted Card’s guilty plea.
3The district court observed: 

One of the factors that the Court must consider under 3E1.1 is

voluntary termination or withdrawal from criminal conduct, voluntary

payment of restitution. The situation with this Defendant is there is

absolutely no medical evidence that I have come across that says that he

cannot work.

He was offered an opportunity to go through a vocational

assessment. He refused to do that. He’s not paid anything toward his

child support while this case has been pending. He hasn’t applied for

disability compensation, which he could use to apply to his obligations

to his children. And I think his conduct of just disregarding his

responsibilities to these children that he helped create continues. 

. . . .

There’s not a shred of evidence in the record that he has made any

attempt to make any payments on this support obligation, that he’s gone

out and looked for a job or that he has any restrictions on his abilities to

work or that anything that he relates as being wrong with him keeps him

from working.

. . . .

I believe that his–his conduct while this case has been pending

outweighs merely coming in and giving a plea of guilty. I don’t think

that he has changed his behavior at all. I believe he is not entitled to

acceptance of responsibility because he has not terminated his criminal

conduct, which–his conduct is the same as what brought him to this

Court, and that is willfully not paying his child support, so I’m not going

to give him acceptance.

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The United States Probation Office prepared a presentence investigation report

(PSR), which recommended denial of a two-level reduction to Card’s offense level

for acceptance of responsibility. Card objected to the recommendation, and the

government recommended the acceptance-of-responsibilityreduction. At sentencing,

the district court denied the acceptance-of-responsibility reduction, U.S.S.G.

§ 3E1.1(a), finding Card had willfully failed to pay child support, and had not

terminated this criminal conduct or otherwise changed his conduct at all.3 The court
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sentenced Card to two, concurrent 21-month prison terms. Card appeals, arguing he

is entitled to the reduction, because the evidence was insufficient to show his postindictment non-payment of child support was willful. 

II. DISCUSSION

“Whether a defendant qualifies for a role reduction is a question of fact,” which

“is reviewed under a clearly erroneous standard.” United States v. Speller, 356 F.3d

904, 906-07 (8th Cir. 2004) (citations omitted). “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.” United States v. Nguyen, 339 F.3d 688, 690 (8th Cir.

2003); see also U.S.S.G. § 3E1.1, cmt. n.5 (2003).

Card has the burden to demonstrate he should receive the reduction for

acceptance of responsibility. Nguyen, 339 F.3d at 690. The United States Sentencing

Guidelines provide for a reduction in a defendant’s offense level if he “clearly

demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a).

However, a guilty plea does not entitle a defendant to the adjustment as a matter of

right. Id. cmt. n.3. The pivotal issue is whether the defendant shows “a recognition

and affirmative responsibility for the offense and sincere remorse.” United States v.

Nguyen, 52 F.3d 192, 194 (8th Cir. 1995) (citation omitted). The purpose of the

reduction is to distinguish “a sincerely remorseful defendant from a defendant not

manifesting penitence.” United States v. Knight, 905 F.2d 189, 192 (8th Cir. 1990).

We find no clear error with the district court’s denial of a two-level reduction

for acceptance of responsibility. While a guilty plea combined with a truthful

admission of the conduct comprising the offense constitute sufficient evidence of

acceptance of responsibility, this evidence may be outweighed by conduct

inconsistent with accepting responsibility. U.S.S.G. § 3E1.1, cmt. n.3. At the guilty

plea hearing, Card admitted he was able to work. The district court observed Card
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had not attempted to make support payments, had not looked for a job, had not

presented a “shred” of evidence he could not work, and had not sought disability

compensation from which he could have paid child support. The court concluded

Card had not terminated his criminal conduct of willful failure to pay child support.

Further, Card provided no evidence he had changed his behavior after being indicted.

Because Card did not meet his burden to show he was entitled to a reduction for

acceptance of responsibility, the district court’s findings were not “so clearly

erroneous as to be without foundation.” See Nguyen, 339 F.3d at 690. In fact, the

district court’s findings and judgment are well founded.

III. CONCLUSION

Because the district court did not clearly err in denying Card a reduction for

acceptance of responsibility, we affirm the district court’s judgment.

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