NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 18-3445

_____________

UNITED STATES OF AMERICA

v.

PERLIE JOHNSON,

Appellant

_____________________________________

On Appeal from the United States District Court for the 

Middle District of Pennsylvania

(District Court No.: 4-16-cr-00231-004)

District Court Judge: Honorable Matthew W. Brann

_____________________________________

Submitted under Third Circuit L.A.R. 34.1(a)

on September 17, 2019

(Filed: October 10, 2019)

Before: KRAUSE, MATEY and RENDELL, Circuit Judges.
2

OPINIO N*

RENDELL, Circuit Judge:

Appellant Perlie Johnson pleaded guilty to one count of assault with a dangerous 

weapon in violation of 18 U.S.C. § 113(a)(3). The District Court sentenced Johnson to 

103 months’ imprisonment. Johnson now challenges his sentence. For the reasons 

discussed below, we will affirm the District Court’s judgment.

I.1

Perlie Johnson participated with three inmate coconspirators in an assault on 

another inmate at United States Penitentiary, Lewisburg. A grand jury indicted Johnson 

and his coconspirators for conspiracy to commit assault with a dangerous weapon in 

violation of 18 U.S.C. § 371, assault with a dangerous weapon in violation of 18 U.S.C. 

§ 113(a)(3), and possession of contraband in violation of 18 U.S.C. § 1791(a)(2). 

Johnson agreed to and eventually did plead guilty to assault with a dangerous weapon. 

As part of Johnson’s plea agreement, the Government agreed to drop the other two 

charges against Johnson and to recommend a two- or three-level reduction in Johnson’s 

offense level for acceptance of responsibility under United States Sentencing Guidelines 

(“U.S.S.G.”) § 3E1.1.

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.

1 Because we write for the parties, who are familiar with the facts and the procedural 

posture to date, we only include what is necessary to explain our decision.
3

Before Johnson’s sentencing, the United States Probation Office (“the Probation

Office”) prepared a presentence investigation report (“PSR”). The Probation Office

noted that the Bureau of Prisons had cited Johnson for disciplinary infractions eleven 

times since the assault that was the basis for his indictment. The Probation Office noted 

that Johnson had not withdrawn from criminal conduct and recommended that the 

District Court deny Johnson a reduction for acceptance of responsibility under U.S.S.G. 

§ 3E1.1. Johnson objected to the Probation Office’s recommendation.

In Johnson’s sentencing memorandum and at his sentencing hearing, Johnson 

again pressed his objection to the Probation Office’s recommendation that Johnson 

should not be awarded a reduction for acceptance of responsibility. The Government, in 

keeping with its agreement with Johnson, recommended a three-level reduction for 

acceptance of responsibility.

The District Court declined to award Johnson an offense-level reduction for 

acceptance of responsibility under U.S.S.G. § 3E1.1. The District Court heard argument 

from Johnson’s counsel about Johnson’s acceptance of responsibility and his post-offense 

misconduct; observed that Johnson’s eleven prison misconduct incidents included 

assaults, threats, and possession of dangerous weapons; and described U.S.S.G. § 3E1.1 

and Application Note One to U.S.S.G. § 3E1.1, including the factors that the District 

Court considered when determining whether to award Johnson an offense-level reduction 

for acceptance of responsibility. The District Court then stated, “[p]ursuant to [United 

States v. Ceccarani, 98 F.3d 126 (3d Cir. 1996)], I have consistently disallowed credit for 

acceptance of responsibility when defendants continue to engage in the same strain of 
4

post-offense conduct as in the instant offense.” App. 80-81. The District Court

sentenced Johnson to 103 months’ imprisonment, which was within the advisory 

Guideline range as calculated without any offense-level reduction for acceptance of

responsibility.

II.

A.

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have 

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). “A district court’s 

factual determination of whether the defendant is entitled to an acceptance of 

responsibility reduction in his sentence is reviewed on a clearly erroneous standard.” 

Ceccarani, 98 F.3d at 129. Because “[t]he sentencing judge is in a unique position to 

evaluate a defendant’s acceptance of responsibility . . . , the determination of the 

sentencing judge is entitled to great deference on review.” Id. (quoting U.S.S.G. § 3E1.1, 

cmt. n.5). “However, the question of whether the district court correctly interpreted 

U.S.S.G. § 3E1.1 is a legal question and subject to plenary review.” Id.

B.

Johnson argues that the District Court erred in declining to reduce his offense level 

for acceptance of responsibility. We disagree and will affirm the District Court’s 

judgment.

Under U.S.S.G. § 3E1.1, a district court may decrease a defendant’s offense level 

by two or three levels “[i]f the defendant clearly demonstrates acceptance of 

responsibility for his offense . . . .” U.S.S.G. § 3E1.1. Application Note One to U.S.S.G. 
5

§ 3E1.1 further instructs district courts to consider a non-exhaustive list of eight 

“appropriate considerations” when deciding whether to reduce a defendant’s offense level 

for acceptance of responsibility. U.S.S.G. § 3E1.1, cmt. n.1. The eight considerations

include the defendant’s “(A) truthfully admitting the conduct comprising the offense(s) of 

conviction . . . ; (B) voluntary termination or withdrawal from criminal conduct or 

associations; . . . and (H) . . . timeliness . . . in manifesting the acceptance of

responsibility.” Id. Although entry of a plea of guilty:

prior to the commencement of trial combined with truthfully admitting the 

conduct comprising the offense of conviction . . . will constitute significant 

evidence of acceptance of responsibility . . . [,] this evidence may be 

outweighed by conduct of the defendant that is inconsistent with such 

acceptance of responsibility. A defendant who enters a guilty plea is not 

entitled to an adjustment under this section as a matter of right. 

U.S.S.G. § 3E1.1, cmt. n.3.

Johnson argues that the District Court erred because the District Court declined to 

reduce his offense level based on its policy to deny the reduction when a defendant 

engages in post-incident misconduct without reference to or analysis of any other factors 

from Application Note One to U.S.S.G. § 3E1.1. See Appellant’s Br. at 13.

We agree with Johnson that a defendant should not be precluded from an 

acceptance of responsibility reduction solely because the defendant engaged in postindictment misconduct and agree that sentencing judges must conduct an individualized 

assessment of each defendant’s situation in light of the non-exhaustive factors from 

Application Note One to U.S.S.G. § 3E1.1.
6

In this case, the language used by the District Court—that it “consistently 

disallowed credit for acceptance of responsibility when defendants continue to engage in 

the same strain of post-offense conduct as in the instant offense,” App. 80–81—was 

unfortunate in that it could be read in isolation to reflect an impermissible “policy.” But 

in context, it is apparent that the District Court was merely making an observation about 

its historic practice and that it was conducting an individualized assessment of Johnson’s 

situation. Specifically, the District Court enumerated the factors from Application Note 

One to U.S.S.G. § 3E1.1 on the record and heard argument from Johnson’s counsel about 

Johnson’s eligibility for the reduction, including a detailed discussion of the factual 

record relating to Johnson’s post-offense misconduct. After considering the factors, the 

District Court found that Johnson was not eligible for any offense-level reduction for 

acceptance of responsibility. Because we do not find that the District Court automatically 

denied Johnson’s acceptance of responsibility reduction solely because of Johnson’s postoffense misconduct, we will not disturb the District Court’s judgment.

III.

For the foregoing reasons, the District Court did not err by declining to reduce

Johnson’s offense level for acceptance of responsibility. We affirm the District Court’s 

judgment.