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KRAVITCH, Senior Circuit Judge, dissenting:

The majority holds that the district court based its refusal

to grant Wright a downward adjustment for acceptance of

responsibility upon a finding that Wright did not show remorse, and

the majority holds that, even if the district court denied the

downward adjustment because Wright asserted a legal challenge to

his conviction, the district court did not err. Based upon the

record, I cannot conclude that the district court denied Wright a

downward adjustment because of a consideration of permissible

factors such as his lack of remorse or insincerity, or even because

of consideration of those factors along with Wright's legal

challenges to the constitutionality of his indictment. Rather, I

interpret the record to show that the district court denied the

downward adjustment solely because it did not accept Wright’s

counsel’s purely legal argument, which was based upon facts that

Wright truthfully had admitted. Because I believe that the

majority has misinterpreted the record and, more importantly, has

misapplied the law, I respectfully dissent.

I.

Wright admitted immediately upon arrest that he possessed the

machineguns, then led the agents to the location of these weapons,

and subsequently consented to the search of his residence that

resulted in the discovery of an additional machinegun and the three
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pipe bombs. After filing a motion to dismiss the indictment on

constitutional grounds, Wright timely pleaded guilty to the

offenses charged. Wright thus truthfully admitted the conduct

comprising the offenses of conviction and did so at the time of his

arrest, when he pleaded guilty, and at the time of sentencing. He

also cooperated with law enforcement authorities and assured the

district court that he had not possessed any weapons since his

arrest. It is apparent from these facts that Wright presented

“significant evidence” of acceptance of responsibility. See

U.S.S.G. § 3E1.1, comment. (nn.1 & 3). 

It was within the authority of the district court to conclude

that this evidence was “outweighed by conduct of the defendant that

is inconsistent with such acceptance of responsibility.” See

U.S.S.G. § 3E1.1, comment. (n.3). In my view, however, the

district court in this case did not rely upon permissible

considerations in concluding that Wright’s conduct was inconsistent

with acceptance of responsibility. After listening to Wright

testify at the sentencing hearing, the district court stated:

This is a hard issue. I think within Mr. Wright’s

own frame of reference, he is sincere in a lot of

the things that he said, but I just do not think

Mr. Wright believes that he was a member of a

militia whose mission was to protect the citizens

of the State of Georgia against threats from the

outside. I think Mr. Wright believes that he was a

member of a group that was prepared to respond to

whatever they perceived to be a threat or a

problem. I’m not convinced by his testimony that

they believed that they were carrying out the law

as opposed to being ready to resist it. So, I will
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overrule the defendant’s objection on the point

regarding acceptance of responsibility. 

(R3:23). Unlike the majority, I read these remarks to indicate

that the district court denied Wright a downward adjustment solely

because it did not find his constitutional challenge meritorious.

The district court apparently (and correctly) understood the Second

Amendment to protect only the possession and use of firearms that

is reasonably related to an official state militia. The district

court further concluded that an official militia must be designed

to protect the citizens of Georgia from outside threats and to

carry out the law of Georgia and that Wright had made no showing

that he belonged to such a group. Wright, in contrast, believed

that the Second Amendment protected his conduct, and that belief

formed the basis of his constitutional challenge to his conviction.

Contrary to the majority’s suggestion, the district court made

no finding that the defendant testified untruthfully about his

militia involvement or that the defendant failed to show remorse.

Rather, before listening to Wright’s testimony at the sentencing

hearing, the district court stated: 

I think what really bothers me in this case is that Mr.

Wright has put forward through counsel an assertion that

he believed he was entitled to possess all of these

weapons, and apparently the pipe bombs as well because he

thought he was a member of a militia, and, therefore, he

thought he was constitutionally able to have these

things. And that assertion that he is making through

counsel to me is not credible, and that’s what bothers

me. . . . It appears to me that what has happened is

counsel has identified some of the publications that seem
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to be consistent with the idea of defending one’s

countrymen, and you [counsel] have attempted to assert an

argument building on his possession of those items. 

(R3:5-6). The district court thus believed that Wright’s legal

claim that his conduct was protected by the Second Amendment lacked

merit.

II.

Despite the multi-faceted nature of the acceptance of

responsibility determination, see U.S.S.G. § 3E1.1, comment. (n.1);

United States v. Calhoon, 97 F.3d 518, 531 (11th Cir. 1996), and the

wide latitude afforded sentencing courts under this section, there

are limits to a district court's discretion in deciding whether to

grant a downward adjustment for acceptance of responsibility.

Although, as we recently made clear, a “district court may consider

the nature of [the defendant's legal challenges to his conviction]

along with the other circumstances in the case when determining

whether a defendant should receive a sentence reduction for

acceptance of responsibility,” United States v. Smith, 127 F.3d

987, 989 (11th Cir. 1997) (en banc) (“Smith”), an otherwise

deserving defendant cannot be denied a reduction under § 3E1.1

solely because he asserts a legal challenge to his conviction that

is unrelated to factual guilt.

In Smith, we held that a panel of this court had gone “too

far” in concluding that “it is impermissible [for a district court]
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 The original panel had held that “[t]o the extent that

the court denied Smith a reduction for acceptance of

responsibility because Smith's counsel objected to the

presentence report on legal grounds, the court erred.” Smith I,

106 F.3d at 352.

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to consider [a] challenge to the legal propriety of a sentence” in

denying a reduction in offense level for acceptance of

responsibility. 127 F.3d at 989 (quoting United States v. Smith,

106 F.3d 350, 352 (11th Cir. 1997) (as amended) (“Smith I”)). The

original panel had erred, we concluded, in deciding that a district

court categorically may not consider a defendant's legal challenge

to a presentence report.1

 Because “frivolous legal challenges

could suggest to the district court that the defendant has not

accepted responsibility for his conduct” and because Smith's

challenges to the probation officer's initial presentence report

amounted to factual rather than legal contentions, Smith, 127 F.3d

at 989, we concluded that the district court had properly

considered Smith's challenges in determining whether he should

receive a sentence reduction pursuant to § 3E1.1, id. We did not

hold in Smith, nor has this circuit ever held, however, that a

district court may rely only upon a defendant's legal challenge,

such as a constitutional challenge to the statute defining the

criminal conduct or a challenge to the applicability of the statute

to his conduct, see U.S.S.G. § 3E1.1 comment. (n.2), in deciding

not to grant a downward adjustment for acceptance of

responsibility. Indeed, the defendant in Smith had challenged the
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factual predicate to his conviction, rather than its legal basis,

see Smith, 127 F.3d at 989 (“These objections were factual, not

legal, and amounted to a denial of factual guilt.”), and thus the

Smith court could not have held that a solely legal challenge by a

defendant to his conviction may serve as a valid basis upon which

to deny a downward adjustment for acceptance of responsibility. 

Indeed, because such a holding would create constitutional

infirmities in the Sentencing Guidelines, other circuits have

concluded that legal challenges alone cannot form the basis for a

denial of a downward adjustment for acceptance of responsibility.

See United States v. Purchess, 107 F.3d 1261, 1267 (7th Cir. 1997)

(concluding that “district court should not deny the reduction for

acceptance of responsibility because the defendant challenges a

legal conclusion drawn from the facts the defendant admits”);

United States v. Fells, 78 F.3d 168, 172 (5th Cir.) (holding that

district court erred in denying reduction for defendant who “freely

admitted all the facts but challenged their legal interpretation”),

cert. denied, 117 S. Ct. 134 (1996); United States v. Broussard,

987 F.2d 215, 224 (5th Cir. 1993) (holding that district court erred

in denying acceptance of responsibility adjustment when defendant

admitted ownership of guns found in home and went to trial only to

argue that statute did not apply to uncontested facts), overruled

on other grounds by J.E.B. v. Alabama, 114 S. Ct. 1419 (1994); see

also U.S.S.G. § 3E1.1, comment. (n.2) (stating that defendant who
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does not plead guilty may nevertheless clearly demonstrate

acceptance of responsibility if he goes to trial in order “to make

a constitutional challenge to a statute or a challenge to the

applicability of a statute to his conduct”); cf. United States v.

Perry, 977 F.2d 1230, 1234 (8th Cir. 1992) (affirming district

court's refusal to grant adjustment for acceptance of

responsibility because defendant contested factual guilt).

The other cases cited by the majority to support its

conclusion that the district court did not err in denying a

departure for acceptance of responsibility based upon Wright’s

“challenges to the constitutionality of his convictions” are

inapposite. In United States v. Henry, 883 F.2d 1010, 1011 (11th

Cir. 1989), the court held that the acceptance of responsibility

provision of the Sentencing Guidelines does not violate the Fifth

or Sixth Amendment, even though the provision may result in an

unpleasant choice for a criminal defendant between taking the stand

to assert his innocence and receiving a lesser sentence for

acceptance of responsibility. See United States v. McDonald, 935

F.2d 1212, 1222 (11th Cir. 1991) (describing the choice as “either

forcing [the defendant] to confess to his own perjury or to forego

taking the stand at trial to take advantage of [section 3E1.1]”).

The court’s conclusion that the very existence of the provision in

the Guidelines does not unconstitutionally “chill[] the right of a

defendant to defend himself” at trial, Henry, 883 F.2d at 1011,
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 United States v. McDonald, 935 F.2d 1212, 1222 (11th Cir.

1991), also cited by the majority to support its conclusion that

a district court may refuse to grant a downward departure based

solely upon the defendant’s legal challenges, merely followed

Henry in rejecting the defendant’s claim that “the sentencing

guidelines infringe[d] his right to appeal.”

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however, in no way suggests that a district court may refuse to

grant a reduction in sentence for acceptance of responsibility

solely because the defendant challenged the constitutionality of

his conviction.2

 The majority’s reliance upon United States v. Jones, 934 F.2d

1199 (11th Cir. 1991), likewise is misplaced. As the portion of the

opinion cited by the majority makes clear, the court in Jones ruled

that the district court properly refused to grant a departure for

acceptance of responsibility where the defendants challenged the

factual basis of their guilt. See Jones, 934 F.2d at 1200

(referring to the district court’s consideration of “the

defendants’ denial of culpability at trial”) (emphasis added).

Indeed, in Jones, in sharp contrast to the case before us, the

defendants “ceased their criminal activity only after they were

arrested[,] . . . maintained that they were innocent[,] . . .

challenged the credibility of the Government’s witnesses [at

trial,] and urged the jury to find them not guilty.” Id. The

portion of the opinion cited by the majority merely demonstrates

that the Jones court followed Henry in concluding that section

3E1.1 “does not impermissibly punish the defendant for exercising
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his constitutional right to stand trial.” Jones, 934 F.2d at 1200

(citing Henry, 883 F.2d at 1012). Moreover, unlike the majority

opinion in the case before us, the court in Jones was careful to

limit the authority of the district court to refuse to grant

downward departures for acceptance of responsibility. See Jones,

934 F.2d at 1200 (“[A] district court may not refuse to grant a

reduction under section 3E1.1 solely because a defendant has chosen

to proceed to trial . . . .”).

III.

Because the asserted legal argument did not relate to Wright’s

factual guilt, see Smith, 127 F.3d at 989, and because, based upon

the sentencing colloquy, the district court does not seem to have

relied upon any basis other than Wright's legal challenges to the

constitutionality of his indictment, I would conclude that the

district court erred in denying Wright a downward adjustment for

acceptance of responsibility. I therefore would remand the case to

the district court for reconsideration of this issue.

Accordingly, I respectfully DISSENT.