United States Court of Appeals

For the First Circuit

No. 08-1432

UNITED STATES OF AMERICA,

Appellee,

v.

JASON JORDAN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

 Lynch, Chief Judge,

Selya and Howard, Circuit Judges.

Joseph M. Wrobleski, Jr. on brief for appellant.

Paula D. Silsby, United States Attorney, and Renée M. Bunker,

Assistant United States Attorney, on brief for appellee.

December 5, 2008
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SELYA, Circuit Judge. This case requires us to consider

the circumstances under which a defendant's commission of criminal

acts while free on bail may justify the denial of an offense level

reduction for acceptance of responsibility. Discerning no clear

error in the district court's calibration of the sentencing

balance, we affirm.

The facts are straightforward. On January 10, 2007, a

federal grand jury indicted defendant-appellant Jason Jordan and

others on several counts related to alleged drug trafficking.

Eight days later, the authorities took Jordan into custody. On

January 24, a magistrate judge ordered his transfer to an inpatient

drug-treatment program. Following a period of therapy, the

magistrate judge released Jordan on personal recognizance. The

conditions of his release included prohibitions against

"commit[ting] any offense in violation of federal, state or local

law," "possessing a . . . dangerous weapon[]," and making "any . .

. use of alcohol."

Jordan reentered the community on March 8, 2007. In the

early morning hours of June 15 (while still out on bail), he was

stopped for speeding in Portland, Maine. He admitted that he had

been drinking, flunked a field sobriety test, and registered a

blood alcohol level of 0.10. A search of his car revealed a

double-edged knife tucked into the driver's side door pocket.

Local authorities charged him with operating a motor vehicle while
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under the influence of alcohol, see Me. Rev. Stat. Ann. tit. 29-A,

§ 2411, and carrying a concealed weapon, see Me. Rev. Stat. Ann.

tit. 25, § 2001-A.

Word of Jordan's travails soon filtered back to the

federal court. On July 9, the court revoked his bail. Ten weeks

later, Jordan pleaded guilty to the federal drug-trafficking

charges. 

The district court directed the probation office to

prepare a presentence investigation report (PSI Report). The PSI

Report calculated Jordan's total offense level at 28 and assigned

him to criminal history category I. This combination resulted in

a guideline sentencing range of 78-97 months. In constructing that

paradigm, the PSI Report declined to recommend an offense level

reduction for acceptance of responsibility. See USSG §3E1.1. The

Report stated: 

The defendant did . . . admit to the offense

of conviction; however, the defendant also

continued to engage in criminal behavior while

on bond and was arrested for two new criminal

offenses. Therefore, the defendant had not

completely withdrawn from criminal conduct and

the new conduct is related to the offense of

conviction as it is substance abuse (alcohol)

related.

Jordan objected to this portion of the PSI Report,

arguing that the June 15 incident was an aberration that should not

be allowed to overshadow his "serious efforts to resurrect his life

and to accept the consequences of his conduct." In support, he
 The charges arising out of the June 15 incident were still 1

pending when the district court sentenced Jordan.

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submitted a myriad of letters from friends and family attesting to

his transformation. He also explained to the court that on June

15, his companions had urged him to drink; he rebuffed their

exhortations for most of the night and, when he finally succumbed,

he downed only two drinks. 

Jordan attempted to minimize the dangerous weapon offense

as well. He stated that the knife was merely a tool to permit him

to open the console inside the automobile.

The district court devoted considerable time at

sentencing to Jordan's purported acceptance of responsibility. In

the end, the court found that Jordan had not carried the devoir of

persuasion and denied the sought-after adjustment. The court

explained that its ruling rested largely on Jordan's drunken

driving offense, and more specifically, Jordan's decision "to go 1

into a bar with a bunch of buddies who [were] drinking." By taking

that step, Jordan showed that he "didn't care" about the bail

conditions; rather, he "was willing to take his chances."

Relatedly, the court rejected Jordan's claim to have limited

himself to two drinks: the quantity of alcohol consumed was more

accurately evidenced, the court thought, by Jordan's blood alcohol

level (which betrayed a much greater degree of consumption).
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Finally, the court explained why it perceived a

connection between acceptance of responsibility for the drunken

driving offense and the offenses of conviction:

In my view a person who is entitled to

acceptance of responsibility fully understands

the course of criminal conduct they're

involved with and is telling the Court that I

am admitting my criminal conduct, and that

admission includes the fact that I will

continue to refrain from criminal conduct

while out on bail. That [did not] happen

here, and I'm not getting the inclination from

Mr. Jordan that during this period of time he

had made a reasoned determination that he was

going to change.

The court proceeded to impose a mid-range sentence of 80

months in prison. This timely appeal ensued. In it, Jordan

alleges that the district court gave undue weight to his drunken

driving offense in denying him a downward adjustment for acceptance

of responsibility. He argues that the court erred by considering

the drunken driving offense at all or, in the alternative, by

emphasizing that offense at the expense of other factors (such as

his willingness to plead guilty and his enthusiastic participation

in drug-treatment programs).

We review a district court's answers to abstract legal

questions, including its interpretation of the federal sentencing

guidelines, de novo. See United States v. Muñiz, 49 F.3d 36, 41

(1st Cir. 1995); United States v. St. Cyr, 977 F.2d 698, 701 (1st

Cir. 1992). The court's findings of fact, however, are reviewed

only for clear error. St. Cyr, 977 F.2d at 701. This clear-error
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standard applies to a sentencing court's factbound determination

that a defendant has not accepted responsibility. See United

States v. Deppe, 509 F.3d 54, 60 (1st Cir. 2007); United States v.

Royer, 895 F.2d 28, 29 (1st Cir. 1990).

Our focus here is on section 3E1.1 of the federal

sentencing guidelines. Subsection (a) of that section provides for

a two-level reduction in a defendant's offense level "[i]f the

defendant clearly demonstrates acceptance of responsibility for his

offense." Subsection (b) allows an additional level to be

subtracted if certain other conditions also are satisfied. Because

eligibility for the two-level adjustment under subsection (a) is a

prerequisite for receipt of the extra level under subsection (b),

we concentrate on the requirements of the former subsection.

On appeal, Jordan challenges only the district court's

factfinding, conceding that the court was "legally correct[] in its

interpretation of section 3E1.1." Appellant's Br. at 7. But that

concession is a bit misleading because Jordan’s factual arguments

implicate a question of law. Hence, we must address that question

before moving to the heart of his claim.

To support his factual argument that the district court

committed clear error by denying him a credit for acceptance of

responsibility due to his post-indictment criminal conduct, Jordan

asserts that cases upholding comparable rulings typically reflect

a nexus between the conduct underlying the offense of conviction
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and the post-indictment criminal conduct. It follows, his thesis

runs, that there must be a "significant connection" between the

indicted conduct and the post-indictment conduct, which requirement

can be satisfied only if the latter conduct is a "significant

continuation" of the former conduct. Appellant's Br. at 10-12. 

This gloss misreads the law in this area. In the first

place, the commentary to section 3E1.1 belies Jordan’s suggestion

that district courts are barred from considering post-indictment

criminal conduct absent a significant connection to the offense of

conviction. That commentary furnishes a non-exclusive compendium

of factors that sentencing courts may consider in assessing a

defendant's asserted acceptance of responsibility. This list

includes the defendant's "voluntary termination or withdrawal from

criminal conduct or associations." USSG §3E1.1 cmt. 1(b). The

plain meaning of this language extends to all criminal conduct, not

merely to criminal conduct that is of the same type as, or even

related to, the offense of conviction. 

In the second place, our case law reinforces this

interpretation. For example, in United States v. McLaughlin, 378

F.3d 35, 38 (1st Cir. 2004), we invited consideration of whether a

defendant had "voluntarily ceased all participation in criminal

activity" (emphasis supplied). So too United States v. O'Neil, 936

F.2d 599, 601 (1st Cir. 1991), in which then-Chief Judge Breyer

explained that a district court "could reasonably conclude that the
To be sure, the Sixth Circuit has articulated a narrower 2

rule. See United States v. Morrison, 983 F.2d 730, 735 (6th Cir.

1993). That court apparently allows consideration only of

"related" crimes in this context. This is a minority view, and we

do not adhere to it. Moreover, the criminal conduct in this case

— drunken driving — involves substance abuse. The district court

determined that substance abuse had played a part in Jordan's

involvement in narcotics trafficking. To that extent, then, the

post-indictment conduct was related to the offense of conviction.

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[defendant's] later conduct (such as his use of marijuana in

violation of bail conditions explicitly forbidding drug use) showed

that [he] lacked 'authentic remorse'" and, thus, bore upon his

acceptance of responsibility with respect to a charge of breaking

into a post office and stealing mail. 

The heavy weight of authority in other circuits is to the

same effect. In United States v. Mara, 523 F.3d 1036, 1038 (9th 2

Cir. 2008), the Ninth Circuit recently wrote, "[t]hat a defendant's

continuing criminal conduct is different in nature, character, or

degree from the offense of conviction does not undermine the fact

that it is inconsistent with acceptance of responsibility." See

also United States v. Prince, 204 F.3d 1021, 1023-24 (10th Cir.

2000) (defendant charged with bank robbery denied acceptance-ofresponsibility credit after stabbing fellow inmate during period of

presentencing detention); United States v. Ceccarani, 98 F.3d 126,

130-31 (3d Cir. 1996) (defendant charged with firearms offense

denied acceptance-of-responsibility credit after testing positive

for drug use); United States v. Pace, 17 F.3d 341, 343 (11th Cir.
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1994) (defendant charged with tax fraud denied acceptance-ofresponsibility credit after testing positive for drugs). 

That ends this aspect of the matter. Criminal conduct,

whatever its nature, is a powerful indicium of a lack of

contrition. Thus, we hold that a district court, in determining

the propriety vel non of an acceptance-of-responsibility credit,

may consider a defendant's commission of any post-indictment

criminal conduct, whether or not it bears a significant connection

to, or constitutes a significant continuation of, the offense of

conviction. In other words, no particular nexus is required.

We turn next to the purely factual question of whether

the district court clearly erred in refusing to allow Jordan a

discount for acceptance of responsibility. We think not. 

In this instance, the court concluded that Jordan's

drunken driving offense, coupled with his self-interested

prevarication about the extent of his imbibing, showed that he had

not accepted responsibility in any authentic sense. On the record

before us, that conclusion seems eminently reasonable. Jordan's

extravagant consumption of alcohol, as well as his cavalier

decision to drive while intoxicated, provided an adequate predicate

for a finding that he had not voluntarily ceased all criminal

activity and, thus, had not genuinely accepted responsibility. See

McLaughlin, 378 F.3d at 38. 
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Jordan's decision to consume intoxicants, troubling in

itself, has even more bite because he blamed his involvement in the

drug-trafficking conspiracy on an escalating addiction to alcohol

and drugs. By getting drunk, he displayed indifference to the root

cause of his original problem. We have recognized before, and

today reaffirm, that such a "high degree of insensitivity" calls

into legitimate question the sincerity of a defendant's professed

desire to mend his ways. United States v. Saxena, 229 F.3d 1, 10

(1st Cir. 2000). We hold, therefore, that it was not clearly

erroneous for the district court to deny a reduction for acceptance

of responsibility on that basis.

Equally unavailing is Jordan's argument that, even if the

sentencing court properly viewed the drunken driving offense as

part of the mix, it struck the wrong balance between that conduct

and Jordan's significant rehabilitative efforts. We acknowledge

both that recovery from an addiction can have its ups and downs and

that the sentencing court had discretion to discount a single

adverse incident in light of an otherwise steadfast commitment to

recovery. But this is a quintessential judgment call, and we

cannot say, under all the circumstances, that the court clearly

erred in striking the balance differently (and, thus, denying a

downward adjustment for acceptance of responsibility).
 Jordan has made a halfhearted argument that the district 3

court committed clear error by finding that his blood alcohol level

belied his claim of having had only two drinks on the night of the

drunken driving incident. Because that argument has not been

developed in any meaningful way, we deem it abandoned. See United

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

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We need go no further. For the reasons elucidated 3

above, we reject Jordan's claim of sentencing error.

Affirmed.