PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 06-4018

KEITH A. HARGROVE,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Henry E. Hudson, District Judge.

(CR-05-168)

Argued: October 27, 2006

Decided: February 23, 2007

Before WILKINS, Chief Judge, and WIDENER and

MOTZ, Circuit Judges.

Affirmed in part and vacated and remanded in part by published opinion. Judge Motz wrote the opinion, in which Judge Widener joined.

Chief Judge Wilkins wrote a separate opinion concurring in part and

dissenting in part. 

COUNSEL

ARGUED: Mary Elizabeth Maguire, Assistant Federal Public

Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. Michael S. Day, OFFICE OF THE

UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
ON BRIEF: Michael S. Nachmanoff, Acting Federal Public

Defender, Richmond, Virginia, for Appellant. Chuck Rosenberg,

United States Attorney, Peter S. Duffey, Assistant United States

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge: 

Keith Hargrove pleaded guilty to three drug counts and was then

tried and convicted of possession of a firearm in furtherance of drug

trafficking in violation of 18 U.S.C. § 924(c) (2000). In calculating

his guidelines sentence, the district court denied Hargrove a two-level

reduction in offense level for the drug counts for acceptance of

responsibility. Hargrove appeals, asserting that he was entitled to the

reduction.1 Although the guidelines are no longer mandatory, United

States v. Booker, 543 U.S. 220 (2005), sentencing courts must still

calculate the correct guidelines range in order to fashion a reasonable

sentence. See United States v. Moreland, 437 F.3d 424, 432 (4th Cir.

2006). When calculating the guidelines range in this case, the district

court erred in believing that it had no legal authority to grant the

reduction with respect to the drug offenses after Hargrove went to

trial on the 924(c) firearm charge. As explained within, although the

guidelines certainly do not require a court to grant Hargrove the

reduction, they do permit it. Accordingly, we vacate his sentence and

remand for resentencing consistent with this opinion. 

I.

On December 11, 2004, Richmond police officers Allen, Hewlett,

1Hargrove also challenges the sufficiency of the evidence supporting

his conviction for violation of 18 U.S.C. § 924(c) (2000). Given the

physical evidence and testimony presented at his trial, however, a rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. See United States v. Lomax, 293 F.3d 701,

705 (4th Cir. 2002). We therefore affirm the conviction. 

2 UNITED STATES v. HARGROVE
and Lambert, riding in a marked police car in a high-crime area,

observed Hargrove and another individual on the sidewalk, with their

backs to the police car. As the car got closer, Hargrove’s companion

began to run. The police turned on a spotlight, and Officer Allen

observed Hargrove pull a gun from his waistband and drop it on the

ground. Officer Lambert saw Hargrove grab an object, and Officer

Hewlett saw Hargrove’s hand in motion. The officers tackled Hargrove and watched him release a bag of crack cocaine. The officers

recovered two magazines for a pistol from Hargrove’s jacket, but no

bullets that would fit the .357 revolver were found on the ground. 

On April 11, 2005, Alcohol, Tobacco and Firearms (ATF) Agent

Oakley arrested Hargrove on the basis of a federal indictment charging him with the events of December 11, 2004. At the time of this

arrest, Hargrove possessed crack cocaine packaged for distribution,

but he did not have a firearm. Hargrove admitted to Agent Oakley

that he had possessed crack cocaine on December 11, 2004, but

denied knowledge of the .357 revolver that the police recovered from

the ground. When Agent Oakley told Hargrove that he believed his

fingerprints would be found on the revolver, Hargrove replied, "I’m

pretty sure my prints ain’t on it." In fact, none of Hargrove’s fingerprints were found on the revolver. 

A federal grand jury filed a seven count superseding indictment

against Hargrove charging him with: (1) possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841 (2000); (2) possession of cocaine base, in violation of 21 U.S.C. § 844 (2000); (3)

possession of a firearm in furtherance of a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(2000); (4) possession of a firearm and

ammunition by a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1)(2000); (5) possession of ammunition, in violation of 18

U.S.C. § 922(g)(1); (6) possession with intent to distribute cocaine

base, in violation of 21 U.S.C. § 841; and (7) possession of cocaine

base, in violation of 21 U.S.C. § 844. The first four counts arose from

the events of December 11, 2004; the last three from those on the date

of arrest, April 11, 2005. Hargrove entered pleas of guilty to counts

one, five, and six, and in exchange the Government agreed to dismiss

counts two, four, and seven. Hargrove went forward with a jury trial

on count three, possession of a firearm in furtherance of a drug trafUNITED STATES v. HARGROVE 3
ficking crime. After a one-day trial, the jury returned a verdict of

guilty. 

At sentencing, Hargrove requested that the district court grant him

a two-point reduction for acceptance of responsibility pursuant to

U.S.S.G. § 3E1.1 on the drug counts for which he had entered pleas

of guilty. In calculating the guidelines range, the district court held

that because Hargrove went to trial on the 924(c) gun count, the court

had no legal authority to grant the § 3E1.1 reduction for acceptance

of responsibility on the drug offenses. Accordingly, the district court

refused to consider a guidelines reduction for acceptance of responsibility and sentenced Hargrove to 175 months imprisonment and a

term of three years of supervised release on each of the counts to run

concurrently. Hargrove appeals. 

If the district court had recognized that it had the legal authority to

grant Hargrove the reduction and had, in exercising that authority,

denied the reduction, we would review its factual determination for

clear error. See, e.g., United States v. Kise, 369 F.3d 766, 771 (4th

Cir. 2004). Because, however, the court believed it had no legal

authority to grant Hargrove the reduction, we review this legal conclusion de novo. Cf. United States v. Hall, 977 F.2d 861, 863 (4th Cir.

1992) (holding, pre-Booker, that although a district court’s refusal to

grant a discretionary departure from the guidelines range was "not

reviewable on appeal," its "refusal to depart" because of a "perceived

lack of legal authority to do so" is subject to review de novo). 

II.

Hargrove argues that proceeding to trial on the 924(c) charge

should not automatically preclude him from obtaining the reduction

in his guidelines sentence for acceptance of responsibility, and further

contends that he is, in fact, entitled to the reduction. We consider

these claims in turn.

A.

In certain limited situations, for example when a statute requires a

consecutive minimum sentence for an offense, a district court cannot

4 UNITED STATES v. HARGROVE
reduce a defendant’s sentence for acceptance of responsibility. See,

e.g., United States v. Davis, 380 F.3d 183, 195 (4th Cir. 2004). However, even prior to Booker, we have repeatedly reiterated that in most

cases district courts are uniquely qualified to evaluate whether to

grant or deny a sentence reduction for acceptance of responsibility.

See, e.g., Elliott v. United States, 332 F.3d 753, 766 (4th Cir. 2003);

United States v. Castner, 50 F.3d 1267, 1279 (4th Cir. 1995). 

Our case law properly follows from the guidelines themselves. Section 3E1.1 of the guidelines provides that "[i]f the defendant clearly

demonstrates acceptance of responsibility for his offense, decrease the

offense level by 2 levels." U.S.S.G. § 3E1.1 (2005). Hargrove argues

that in his case, the "offense" to which § 3E1.1 applies consists of the

grouped drug counts to which he pleaded guilty, because the remaining charge — the 924(c) gun charge — carries a statutory minimum

sentence and is thus not a guidelines offense and can never provide

the basis for a § 3E1.1 reduction. Brief of Appellant at 15. He contends that he accepted responsibility for the drug offenses and so

should be considered for receipt of the benefit of § 3E1.1 in calculating the guidelines sentence for these counts. Hargrove’s argument

finds strong support in the guidelines. 

First, the commentary to § 3E1.1 carefully distinguishes between

the "offense of conviction" and "relevant conduct." An "appropriate

consideration[ ]" for the sentencing judge in evaluating a defendant’s

demonstration of acceptance of responsibility is his "truthfully admitting the conduct comprising the offense(s) of conviction, and truthfully admitting or not falsely denying any additional relevant conduct

for which the defendant is accountable under § 1B1.3 (Relevant Conduct)." U.S.S.G. § 3E1.1 cmt. n.1(a) (emphasis added). Elsewhere, the

commentary states that "[e]ntry of a plea of guilty prior to the commencement of trial combined with truthfully admitting the conduct

comprising the offense of conviction, and truthfully admitting or not

falsely denying any additional relevant conduct . . . will constitute

significant evidence of acceptance of responsibility . . . ." Id. at cmt.

n.3 (emphasis added). Thus, for the purposes of § 3E1.1, "offense" is

not synonymous with "relevant conduct."2

2U.S.S.G. § 1B1.1 cmt. n.1(H) (2005) defines "Offense" as "the

offense of conviction and all relevant conduct under §1B1.3 (Relevant

UNITED STATES v. HARGROVE 5
Moreover, the guidelines instruct sentencing courts initially to

group similar counts together into a single "offense." See U.S.S.G.

§ 3D1.1 introductory cmt. (2005). Counts with statutory minimum

sentences that are to be imposed consecutively — including those

under § 924(c) — are specifically "[e]xclude[d]" from grouping.

U.S.S.G. § 3D1.1 cmt. n.1. Pursuant to the procedure prescribed by

the guidelines, once a court groups appropriate counts and determines

the initial combined offense level for the grouped counts, it then

decides whether any adjustments to the offense level — including that

for acceptance of responsibility — should be made for the grouped

offense. U.S.S.G. § 3D1.1 cmt. background. It is only after that determination and the subsequent calculation of the sentence flowing from

the (possibly adjusted) offense level of the grouped counts that the

punishment for counts with a consecutively imposed statutory minimum is added to the sentence; a court cannot award an acceptance of

responsibility adjustment for such consecutive mandatory minimum

sentences. Chapter Five of the guidelines confirms this approach, providing that when a statute imposes a consecutive mandatory minimum

sentence, "the term of years to be imposed consecutively is the minimum required by the statute of conviction and is independent of the

guideline sentence on any other count." U.S.S.G. § 5G1.2 cmt. n.2(A)

(2005) (emphasis added). 

In sum, when § 3E1.1 instructs that "[i]f the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the

offense level by 2 levels," the "offense" to which it refers comprises

the counts that are grouped together and treated as "a single offense

for purposes of the guidelines." U.S.S.G. § 3D1.1 intro cmt. As a

result, under the terms of U.S.S.G. § 3E1.1, the defendant must only

accept responsibility for the grouped guidelines counts in order to be

eligible for the reduction in offense level for that particular "offense."3

(Text continued on page 8)

Conduct) unless a different meaning is specified or is otherwise clear

from the context." In this case, the commentary to § 3E1.1 specifies a

different meaning, one that is also clear from the context of how the

guideline is applied. 

3Relying on United States v. Ginn, 87 F.3d 367, 371 (9th Cir. 1996),

the dissent contends that the plural "offense(s) of conviction" in the commentary to § 3E1.1 indicates that to receive the reduction Hargrove must

6 UNITED STATES v. HARGROVE
accept responsibility for all of the crimes of which he has been convicted

— including the § 924 offense. Post at 16. But Ginn relies on the plural,

"offense[s]" of conviction, simply to explain its holding that a defendant

must accept responsibility for all guideline offenses of conviction, i.e. all

grouped offenses factored into his combined offense level, because otherwise the defendant "would receive a benefit on his offense level" for

all of those offenses "even though he accepted responsibility for only

one." Ginn, 87 F.3d at 371. Unlike Ginn, Hargrove did accept responsibility for all of his guideline offenses (those factored into his combined

offense level) and went to trial only on the 924(c) offense, which is not

factored into the combined offense guideline level. Because the mandatory minimum sentence for the 924(c) offense must be imposed consecutively after the calculation of the guideline sentence based on the

adjusted combined offense level, the acceptance of responsibility reduction has no effect on Hargrove’s sentence for the 924(c) count. In sum,

unlike Ginn, Hargrove could never receive a benefit for the count that he

factually contested. 

The dissent’s contention that the structure of the guidelines supports

its position is flawed for similar reasons. This structure does indicate that

all guidelines offenses be grouped before considering a § 3E1.1 reduction; but the structure does not even suggest this with respect to

the 924(c) offense. Indeed, given that the 924(c) count is never grouped

or factored into the combined offense level, the structure of the guidelines — consideration of a § 3E1.1 reduction after the calculation of the

combined offense level but before the addition of the mandatory consecutive minimum sentence for 924(c) counts — supports our holding, not

the dissent’s position. 

The dissent’s argument that our holding is contrary to the purposes of

§ 3E1.1 — to "sentenc[e] more leniently defendants who evidence contrition and cooperate with law enforcement authorities" — is equally

unpersuasive. See post at 17 (quoting United States v. Frazier, 971 F.2d

1076, 1084 (4th Cir. 1992)). Because Hargrove has indisputably evidenced contrition and cooperated with law enforcement authorities with

respect to his drug offenses, it is consistent with the purpose of § 3E1.1

that he could receive a more lenient sentence for these offenses. The dissent’s view that "a defendant who factually contests his guilt" as to

a 924(c) crime "has not accepted responsibility in the global sense

required by the guidelines," post at 18, may well be a view shared by the

sentencing court on remand, but it need not be so. And the guidelines

UNITED STATES v. HARGROVE 7
Hargrove has done that in this case. He has pleaded guilty and did

not go to trial on the narcotics counts grouped under the guidelines,

which together constitute the only "offense" for purposes of § 3E1.1.

Thus, Hargrove has accepted responsibility for his § 3E1.1 offense

and so is eligible for the reduction. To be sure, he did proceed to trial

on the 924(c) count,4 but that does not render him ineligible for the

reduction because it is not subject to grouping with the guidelines

offenses, is not factored into determining the guidelines offense level,

and cannot be the basis for an acceptance of responsibility reduction.

instruct that it is not an appellate judge but "[t]he sentencing judge" who

evaluates "a defendant’s acceptance of responsibility." See U.S.S.G.

§ 3E1.1 cmt. n.5. 

The dissent’s final argument — that our holding fails because we have

not "articulate[d]" the Commission’s possible purpose for creating the

scheme that it did, post at 19 — is even less persuasive. Given the clarity

of the language in the guidelines and commentary, fuller judicial exploration of the Commission’s purpose is unnecessary and perhaps problematic. Cf. United States v. Am. Trucking Ass’ns, 310 U.S. 534, 543 (1940)

("There is, of course, no more persuasive evidence of the purpose of a

statute than the words by which the legislature undertook to give expression to its wishes."). However, as we have noted in text, Hargrove posits

an entirely reasonable explanation for the different treatment of 924(c)-

type offenses. Consistent with the purpose of § 3E1.1 — to grant sentencing judges discretion to impose more lenient sentences on defendants

who have accepted responsibility for their conduct — the Commission

may have chosen to treat 924(c)-type offenses differently because they

carry consecutive mandatory minimum sentences for which a defendant

can never obtain a § 3E1.1 reduction. In other words, the Commission

may well have concluded that any other scheme would be unfair —

denying a defendant all possibility of a § 3E1.1 reduction, even though

prior to trial he fully accepted responsibility for his guidelines offenses,

simply because he refused to plead guilty to an offense for which acceptance of responsibility could never reduce his sentence. 

4Although at trial Hargrove contested the "possession" and "furtherance" elements of the 924(c) count, he did not deny drug activity and so

did not deny any factual elements of his guidelines "offense." Thus,

application note 2 to § 3E1.1, which applies to the "offense" under the

guidelines (here the drug counts), does not govern his case. U.S.S.G.

§ 3E1.1 cmt. n.2. It is for this reason that the long list of cases cited by

the dissent, post at 20, is inapposite here. 

8 UNITED STATES v. HARGROVE
Because Hargrove accepted responsibility for all of the drug counts

— the counts grouped together under the guidelines that constitute the

"offense" for the purposes of § 3E1.1 — he was eligible for the reduction. The district court thus erred in concluding that it did not have

the legal authority to grant Hargrove the reduction.

B.

Hargrove, however, further contends that he is "entitled" to award

of the reduction and that we must remand the case with "explicit

instructions" to the district court to grant the reduction. Brief of

Appellant at 16, 20. We cannot agree. Although Hargrove pleaded

guilty to the grouped drug "offense," he has not truthfully admitted

his relevant conduct, namely the 924(c) count, and so is certainly not

"entitled" to the reduction. 

"In determining whether a defendant qualifies" for an acceptance

of responsibility reduction in his guidelines sentence, an "appropriate

consideration[ ]" for the sentencing judge is whether the defendant

has "truthfully admitt[ed] or not falsely den[ied] any additional relevant conduct for which the defendant is accountable under § 1B1.3

(Relevant Conduct)." U.S.S.G. § 3E1.1 cmt. n.1. The commentary to

U.S.S.G. § 3E1.1 explains that "[a] defendant may remain silent in

respect to relevant conduct . . . without affecting his ability to obtain

a reduction under this subsection," but "a defendant who falsely

denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance

of responsibility." Id. at cmt. n.1(a). 

Section 1B1.3 defines as "[r]elevant [c]onduct" "all acts and omissions committed . . . by the defendant . . . that occurred during the

commission of the offense of conviction, in preparation for that

offense, or in the course of attempting to avoid detection or responsibility for that offense. . . ." U.S.S.G. § 1B1.3(a)(1) (2005). By convicting Hargrove on the 924(c) count, the jury found that Hargrove

possessed a gun "in furtherance" of a drug trafficking crime, and as

such, the 924(c) conviction constitutes "relevant conduct" for the purposes of § 3E1.1. Hargrove has contested his responsibility for the

relevant conduct, and so the sentencing judge could conclude that the

relevant conduct should "affect[ ]" Hargrove’s "ability to obtain a

UNITED STATES v. HARGROVE 9
reduction under this subsection." U.S.S.G. § 3E1.1 cmt. n.1(a). That

is, the court may well conclude that by going to trial on the 924(c)

count, Hargrove "has acted in a manner inconsistent with acceptance

of responsibility."5Id.

We note however that this is just one, albeit an important, "appropriate consideration[ ]" for the sentencing judge to consider in exercising his discretion to determine whether to grant the reduction.

Other "appropriate considerations" include voluntary termination or

withdrawal from criminal conduct, voluntary surrender to authorities

and assistance to authorities in recovery of the fruits and instrumentalities of the offense, and the timeliness of the defendant’s conduct in

manifesting the acceptance of responsibility. Id. at cmt. n.1(b), (d),

(e), (h). 

In sum, although the sentencing court has the legal authority to

grant Hargrove the reduction, the court is certainly not required to do

so. On remand, it should consider Hargrove’s relevant conduct and

other appropriate § 3E1.1 considerations in determining whether to

grant the reduction. 

III.

Our holding here — that in cases like those at hand, the sentencing

judge has the power to grant a reduction for acceptance of responsibility in determining the guidelines offense level, but that the defendant is not entitled to such a reduction — accords with our precedent

and that of our sister circuits that have considered this issue. 

The district court erred in believing that United States v. Gordon,

895 F.2d 932 (4th Cir. 1990), barred it from awarding any reduction

in this case. If Gordon had so held it would be contrary to, rather than

entirely consistent with, our well-established precedent, noted above,

5But the sentencing court need not necessarily so conclude. The guidelines commentary states that "[a] defendant may remain silent in respect

to relevant conduct . . . without affecting his ability to obtain a reduction

under this subsection." U.S.S.G. § 3E1.1 cmt. n.1(a). Although Hargrove

proceeded to trial on the 924(c) count, he did not testify at trial and so

has "remain[ed] silent" about his relevant conduct. 

10 UNITED STATES v. HARGROVE
that we defer to sentencing judges because they are in a particularly

appropriate position to evaluate whether to grant a reduction for

acceptance of responsibility. In fact, in Gordon itself, we carefully

explained why district courts are afforded this broad authority to

determine whether an acceptance of responsibility reduction is appropriate — because "[t]he sentencing judge is in a unique position to

carefully examine the particular circumstances of each case." Gordon,

895 F.2d at 937 (internal quotation marks omitted). 

As Hargrove notes, Gordon involved a very different situation than

that presented here. There the defendant attempted to gain the reduction by accepting responsibility for one offense — possession of

cocaine — while continuing to deny responsibility for another

grouped offense — possession of cocaine with intent to distribute.

895 F.2d at 934. Furthermore, in Gordon the defendant did not even

accept responsibility for the lesser included offense until after he had

gone to trial and been convicted of both offenses. These facts contrast

sharply with those at hand in which Hargrove seeks the reduction

because prior to trial he pleaded guilty and accepted responsibility for

the offenses grouped under the guidelines and only went to trial on

the 924(c) offense, which could not be grouped and for which a court

could not award him the reduction. In sum, while Hargrove accepted

responsibility for the grouped guidelines counts prior to any conviction, Gordon did not accept responsibility for any counts prior to conviction, and even after trial and conviction still refused to accept

responsibility for the more serious of the two counts. 

Moreover, even given these facts, the district court in Gordon did

not doubt that it had the power or legal authority to grant an acceptance of responsibility reduction. The court expressly recognized that

Gordon was not "automatically denied" a two-level reduction because

he went to trial, but concluded that Gordon had not demonstrated

acceptance of responsibility meriting the reduction in his case. Id. at

937 (quoting the district court). Similarly, although we agreed with

the district court "that Gordon had done nothing to indicate his acceptance of responsibility," we did not suggest that the district court

lacked the power to grant the reduction. Id. Rather, we affirmed

because "[t]he district court did not clearly err in denying" the reduction. Id.

UNITED STATES v. HARGROVE 11
In Gordon we recognized, as the district court had, that in limited

situations when a defendant does not seek to challenge issues that

relate to his factual guilt a sentencing court may grant the reduction

even if a defendant goes to trial on a guidelines offense. But we

rejected, id. at 936, the First Circuit’s view that a defendant need only

plead guilty to some of the counts to require that the district court

award the two-point reduction. See United States v. Perez-Franco,

873 F.2d 455, 458-459, 464 (1st Cir. 1989) (rejecting the district

court’s refusal to award the reduction when the defendant did not

plead guilty or accept responsibility for some counts and remanding

with the directive that defendant "shall be entitled to the two-point

reduction" if he accepted responsibility for the count to which he

pleaded guilty). 

Instead, we looked to cases from other circuits that had held that

appellate courts should be particularly deferential to the factual findings of sentencing judges as to whether defendants had accepted

responsibility. See United States v. Moskowitz, 888 F.2d 223, 227 (2d

Cir. 1989) (finding "no basis for disturbing the district court’s determination that [the defendant] was not entitled to a two level reduction" (internal quotation marks omitted)); United States v. Tellez, 882

F.2d 141, 143 (5th Cir. 1989) (stating that the "determination by the

sentencing judge is entitled to great deference"). Deferring to the district court’s factual determination in Gordon, we explained that "[w]e

believe the approach taken by the Second and Fifth Circuits is correct

and hold that in order for section 3E1.1 of the guidelines to apply,"

— that is, to ever entitle a defendant to a reduction — "a defendant

must first accept responsibility for all of his criminal conduct." Gordon, 895 F.2d at 936. Although the language of the guidelines has

changed since we issued Gordon in 1990,6 the rule in Gordon — that

6The guidelines then stated that the offense level should be reduced if

a defendant accepted responsibility "for his criminal conduct," U.S.S.G.

§ 3E1.1(a) (1990) (emphasis added), and the commentary provided that

"truthful admission of involvement in the offense and related conduct"

constituted significant evidence of acceptance of responsibility. Id. at

cmt. n.3 (emphasis added). However, under the current guidelines and

commentary, as explained earlier, it is clear that a defendant need not

affirmatively accept responsibility for all criminal conduct, but only the

guidelines offense of conviction, to be eligible for the reduction; failure

to accept responsibility for relevant conduct may weigh heavily against

award of the reduction but it does not render a defendant ineligible for

it. 

12 UNITED STATES v. HARGROVE
only if a defendant accepts responsibility "for all of his criminal conduct" (now his guidelines offense of conviction) could a defendant

ever be entitled to an acceptance of responsibility reduction —

remains the law. 

In sum, Gordon does not hold that a defendant must plead guilty

to all criminal conduct before a sentencing court may exercise its discretion to grant a reduction for acceptance of responsibility. Rather,

Gordon holds that we will defer to the factual determination of the

district court about whether a defendant has accepted responsibility.

Therefore, Gordon does not bar a sentencing court from awarding a

reduction in a case like that at issue here. 

Moreover, although none of our prior precedent involves a case

like Hargrove’s — in which the defendant pleaded guilty to the

offenses grouped under the guidelines, but went to trial just on a nongrouped charge specifically excluded from guidelines grouping for

which a court cannot grant the acceptance of responsibility reduction

— two of our sister circuits have recently considered similar cases.

Both have concluded, as we do, that the guidelines permit a sentencing court to grant a § 3E1.1 reduction in these circumstances. 

In United States v. Williams, 344 F.3d 365, 380 (3d Cir. 2003), the

Third Circuit reviewed a sentencing judge’s grant of the § 3E1.1

reduction to a defendant who pleaded guilty to bank robbery but went

to trial and was convicted of a 924(c) offense. Even more recently,

in United States v. Wattree, 431 F.3d 618, 622 (8th Cir. 2005), the

Eighth Circuit reviewed a sentencing judge’s grant of a § 3E1.1

reduction to a defendant who pleaded guilty to grouped narcotics

offenses but went to trial and was convicted of a related 924(c)

offense. In both cases, the Government advocated, as it does here, an

"‘all or nothing’ approach," i.e. that the defendant is eligible to "receive a reduction . . . only by pleading guilty to all offenses of which

the defendant is convicted." Wattree, 431 F.3d at 621-22; see also

Williams, 344 F.3d at 381. Both courts firmly rejected that view for

the same reason that we do — "[a]s a matter of law, the guidelines

do not mandate an ‘all or nothing’ approach." Wattree, 431 F.3d at

622.7 The Eighth Circuit then followed the Third in holding that

7

In contrast, as the Eighth Circuit recognized and numerous courts

have held, the guidelines do mandate this "all or nothing" approach when

UNITED STATES v. HARGROVE 13
"[w]here a defendant pleads guilty to all counts that are grouped for

sentencing, contesting guilt only on non-grouped offenses, the guidelines do permit a two-level acceptance-of-responsibility reduction,

based on the totality of the circumstances." Id. at 622-23. 

As our sister circuits have recognized, a sentencing court may, but

of course need not, grant the reduction in a case like Hargrove’s.8 It

should only do so if, based on all relevant § 3E1.1 considerations —

e.g., a defendant’s acceptance of responsibility for relevant conduct,

the timeliness of his plea to the guidelines offenses, his voluntary termination or withdrawal from criminal conduct, his assistance to

authorities — the defendant exhibits sufficient acceptance of responsibility. See United States v. Nale, 101 F.3d 1000, 1005 (4th Cir.

1996) (stating that to receive a reduction for acceptance of responsibility, "the defendant must prove by a preponderance of the evidence

that he has clearly recognized and affirmatively accepted personal

responsibility for his criminal conduct"). The Williams court concluded that the sentencing court had properly granted the reduction;

the Wattree court concluded that it had not. But in each case, the

appellate court unequivocally held, as we do, that the sentencing court

had the legal authority to grant the reduction. Because in this case the

sentencing court did not believe that it had this authority, we must

vacate Hargrove’s sentence and remand for resentencing.9

a defendant pleads guilty to only some of the grouped counts and goes

to trial on others. See Wattree, 431 F.3d at 622 (distinguishing, on this

basis, "[t]he cases cited by the government"). For in that situation, as we

have explained, the defendant will not have accepted responsibility for

all of the counts that constitute the "offense of conviction." See U.S.S.G.

§ 3E1.1 cmt. n.1(a). 

8Although it is not entirely clear, the Third Circuit view may be that

a district court will always be justified in granting a reduction if it

chooses to do so. Like the Eighth Circuit, we disagree with this

approach, which we do not believe the guidelines support. See Wattree,

431 F.3d at 622-23. As explained within, we also disagree with the Third

Circuit’s suggestion that a 924(c) offense may not constitute conduct

"relevant" to guidelines offenses. 

9The Government has not suggested that if we hold, as we have, that

the guidelines do not require that Hargrove be denied the reduction, we

14 UNITED STATES v. HARGROVE
IV.

For the foregoing reasons, we affirm Hargrove’s conviction, but

vacate his sentence and remand for resentencing consistent with this

opinion. 

AFFIRMED IN PART AND

VACATED AND REMANDED IN PART

WILKINS, Chief Judge, concurring in part and dissenting in part: 

I concur in the majority’s holding that the evidence was sufficient

to support Hargrove’s § 924(c) conviction. However, because I would

affirm the sentence imposed, I respectfully dissent in part. 

Hargrove’s only argument on appeal regarding his sentence is that

he was entitled to an acceptance of responsibility reduction in his

offense level. More specifically, he contends that the district court

erroneously concluded that, in determining whether to grant the

reduction, it could consider the fact that Hargrove proceeded to trial

and contested the facts underlying his § 924(c) offense. Because I

believe the district court properly considered this fact and based its

denial of the reduction on it, I would affirm. 

I.

In interpreting a guideline, ordinary rules of statutory construction

apply. See United States v. Stokes, 347 F.3d 103, 105 (4th Cir. 2003).

These rules require us to give the guideline its plain meaning, as

determined by examination of its "language, structure, and purpose."

United States v. Horton, 321 F.3d 476, 479 (4th Cir. 2003) (internal

should apply harmless error analysis. Even had the Government so

argued we could not agree. Because the sentencing judge must consider

the various § 3E1.1 appropriate considerations to determine whether Hargrove should receive the reduction, the Government at this point could

not possibly meet its burden of showing that the error in failing to consider Hargrove for the reduction did not affect his substantial rights. See

United States v. Rodriguez, 433 F.3d 411, 416 (4th Cir. 2006). 

UNITED STATES v. HARGROVE 15
quotation marks omitted). We must also examine the commentary

accompanying the guideline, which "is authoritative unless it violates

the Constitution or a federal statute, or is inconsistent with, or a

plainly erroneous reading of, that guideline." Stinson v. United States,

508 U.S. 36, 38 (1993).

The guidelines provide a two-level offense-level reduction "[i]f the

defendant clearly demonstrates acceptance of responsibility for his

offense." United States Sentencing Guidelines Manual § 3E1.1(a)

(2005). The commentary to § 3E1.1 lists a nonexhaustive set of factors for the district court to consider in deciding whether to grant a

reduction, the first of which is whether the defendant "truthfully

admitt[ed] the conduct comprising the offense(s) of conviction, and

truthfully admitt[ed] or [did] not falsely deny[ ] any additional relevant conduct for which the defendant [was] accountable." U.S.S.G.

§ 3E1.1, comment. (n.1(a)). The central question in this appeal is

whether "the offense(s) of conviction" encompasses an offense with

a statutory minimum sentence that must be imposed consecutively ("a

§ 924(c)-type offense"). I believe that this language does encompass

such an offense. 

First, the language of the guideline and commentary is plain. Simply stated, the § 924(c) offense was an offense of which Hargrove

was convicted and for which the district court was required to sentence him; it thus constituted an "offense of conviction" as those

words are ordinarily used. See United States v. Wilson, 896 F.2d 856,

858 n.3 (4th Cir. 1990) (interpreting undefined guideline term to have

its "ordinary meaning"). Had the Sentencing Commission intended

"offense(s) of conviction" to refer only to some offenses of conviction

and not to all, one would certainly expect that the Commission would

have said as much. See United States v. Ginn, 87 F.3d 367, 371 (9th

Cir. 1996) (explaining that the Commission’s use of the plural "offense(s)" "implies that a defendant must accept responsibility for all

crimes of which he or she is convicted before the defendant is eligible

for an adjustment under section 3E1.1"). 

Second, the structure of the guidelines is consistent with the plain

meaning of the language and commentary. Section 3E1.1 is found in

the guidelines following the instructions for arriving at a single

offense level by "grouping" related offenses. See U.S.S.G. § 1B1.1(d),

16 UNITED STATES v. HARGROVE
(e) (providing that an adjustment for acceptance of responsibility is

applied after grouping). This placement demonstrates that the Commission actually intended "the offense(s) of conviction" to refer to all

"offenses of conviction"—as one would expect from the language

employed—rather than a subset thereof. That is so because had the

Commission concluded that a defendant could receive a reduction for

accepting responsibility for some but not all of his offenses of conviction, it would have required that acceptance of responsibility be determined for each offense or group of offenses individually before a

single offense level for multiple offenses is calculated. Put another

way, considering that the Commission did not adopt the notion that

§ 3E1.1 determinations would be offense- or group-specific, as

obstruction of justice determinations are, for example, see U.S.S.G.

§ 1B1.1(c), (d) (providing that adjustments from Parts A, B, and C of

Chapter Three are applied prior to grouping); U.S.S.G. § 3C1.1 (providing for offense-level enhancement for obstruction of justice), there

is no reason why it would have excluded a defendant’s contest of the

facts underlying a § 924(c) offense from a § 3E1.1 determination. 

Third, the purposes of § 3E1.1 are also consistent with the plain

language of the guideline and commentary. A central purpose of

§ 3E1.1 is to encourage defendants to plead guilty, thereby saving the

government from having to expend valuable resources proving its

case. See United States v. Frazier, 971 F.2d 1076, 1084 (4th Cir.

1992) (holding that "[t]he acceptance of responsibility reduction

essentially codifies the judicial practice of sentencing more leniently

defendants who evidence contrition and cooperate with law enforcement authorities"). As the Eleventh Circuit has explained,

When a defendant indicted on multiple counts goes to trial

on any of those counts, the systemic costs of trial are not

obviated although they may be reduced to some extent. In

the same vein, a defendant who is unwilling to accept

responsibility for some of the charges against him has not

really "come clean" and faced up to the full measure of his

criminal culpability.

United States v. Thomas, 242 F.3d 1028, 1034 (11th Cir. 2001); see

U.S.S.G. § 3E1.1, comment. (n.2) ("Th[e § 3E1.1] adjustment is not

intended to apply to a defendant who puts the government to its burUNITED STATES v. HARGROVE 17
den of proof at trial by denying the essential factual elements of guilt,

is convicted, and only then admits guilt and expresses remorse.").

Similarly, a defendant who factually contests his guilt on some of his

offenses of conviction has not accepted responsibility in the global

sense required by the guidelines and therefore should not remain eligible to receive a § 3E1.1 reduction. 

A.

In contravention to the language, structure, and purpose of § 3E1.1,

its commentary, and the guidelines as a whole, the majority concludes

that the phrase "offense(s) of conviction" in the commentary to

§ 3E1.1 does not encompass § 924(c)-type offenses. The majority

bases its conclusion primarily on the fact that a determination regarding whether a defendant is entitled to an acceptance of responsibility

reduction is made before the guideline range is calculated and thus

before the sentence for the § 924(c)-type offense is added.1See ante,

at 6. This reasoning is misplaced, however. The sequence to which

the majority refers tells us only that conduct underlying non-§ 924(c)-

type offenses will not affect the length of the consecutive sentence

imposed for a § 924(c)-type offense. It bears not at all on the question

of whether the Commission intended that a defendant must accept

responsibility for all of his offenses of conviction to obtain a reduction or whether something less is required. 

As I have explained, the critical point we should draw from the

sequence of the acceptance of responsibility determination is that the

Commission determined that a reduction for acceptance of responsibility is not applied until the district court has determined a single

offense level for all offenses of conviction. The majority fails to satisfactorily explain why the Commission would exclude a defendant’s

contest of the facts underlying a § 924(c) offense from a § 3E1.1

determination when it eschewed the notion that § 3E1.1 determinations would be offense- or group-specific. Stated another way, the

1The majority also claims support from the "clarity" of the language

of the guidelines and commentary. Ante, at 6-8 n.3. But, as I have

explained, the notion that this language provides any support for the

majority’s interpretation—let alone, clear support—is plainly incorrect.

See supra, at 16-17. 

18 UNITED STATES v. HARGROVE
majority fails to persuasively articulate why the Commission would

decide that a defendant’s factual contest of one group of offenses disqualifies him from receiving a reduction regarding an unrelated group

of offenses, but that his factual contest of a § 924(c)-type offense

would not similarly disqualify him.2 The simple answer, in my view,

is that the Commission would not make that decision. Either it would

have made acceptance of responsibility offense- or group-specific, or

it would have required that a defendant demonstrate responsibility for

all of his offenses of conviction, as the guideline and commentary language indicates that it did. 

The majority apparently also concludes that because the guidelines

treat grouped offenses as a single "offense," groups of offenses are the

"offense(s)" referred to in the commentary to § 3E1.1. See ante, at 6.

I do not find this reasoning persuasive. Although the guideline commentary provides that groups of offenses "are treated as constituting

a single offense for purposes of the guidelines," U.S.S.G. Ch. 3, Pt.

D, intro. comment. (emphasis added), that certainly does not mean

that subsequent guidelines refer to these groups as "offenses." If the

commission had meant "groups" in § 3E1.1, instead of "offense(s),"

there is no reason it would not have said so. 

For all these reasons, I believe the district court properly considered Hargrove’s choice to proceed to trial and factually contest his

§ 924(c) charge in denying his request for an acceptance of responsibility reduction.3

2The majority suggests that the Commission may have concluded that

it would be "unfair" to deny a § 3E1.1 reduction for conduct underlying

an offense that carries with it a sentence that will not be affected by any

§ 3E1.1 reduction. Ante, at 6-8 n.3. But surely there is nothing "unfair"

about requiring a defendant to accept responsibility for the conduct

underlying all of his offenses of conviction before he can become eligible for a § 3E1.1 reduction. 

3The majority cites United States v. Wattree, 431 F.3d 618, 622 (8th

Cir. 2005), and United States v. Williams, 344 F.3d 365, 380 (3rd Cir.

2003), as supporting its holding that "offense(s) of conviction" in this

context does not include § 924(c)-type offenses. While the majority is

correct that these decisions adopt the same rule that it does, they provide

no more support for their interpretation than the majority does here. 

UNITED STATES v. HARGROVE 19
B.

I also believe that the district court properly concluded that pleading not guilty and factually contesting at least one of his offenses of

conviction at trial disqualified Hargrove from receiving the reduction.

See United States v. Sims, 428 F.3d 945, 961 (10th Cir. 2005) (holding that a defendant disqualifies himself from receiving an acceptance

of responsibility reduction by exercising his right to trial and contesting his factual guilt); United States v. Ragsdale, 426 F.3d 765, 781-

82 (5th Cir. 2005) (same); United States v. Gorsuch, 404 F.3d 543,

546 (1st Cir. 2005); United States v. Forrest, 402 F.3d 678, 688-89

(6th Cir. 2005) (same); United States v. Yirkovsky, 338 F.3d 936, 941

(8th Cir. 2003) (same); United States v. Hernandez, 330 F.3d 964,

984-85 (7th Cir. 2003) (same); United States v. Cox, 299 F.3d 143,

149 (2d Cir. 2002) (same); cf. United States v. Gordon, 895 F.2d 932,

936 (4th Cir. 1990) ("hold[ing] that in order for section 3E1.1 of the

guidelines to apply, a defendant must first accept responsibility for all

of his criminal conduct"). Although the guideline commentary lists

the truthful admission of the conduct comprising the offenses of conviction as only one factor to be considered in determining whether to

grant an acceptance of responsibility reduction, it also clearly states

that proceeding to trial and contesting factual guilt is inconsistent with

accepting responsibility for one’s offenses:

This adjustment is not intended to apply to a defendant who

puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and

only then admits guilt and expresses remorse. Conviction by

trial, however, does not automatically preclude a defendant

from consideration for such a reduction. In rare situations a

defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his

constitutional right to a trial. This may occur, for example,

where a defendant goes to trial to assert and preserve issues

that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance,

however, a determination that a defendant has accepted

responsibility will be based primarily upon pre-trial statements and conduct. 

20 UNITED STATES v. HARGROVE
U.S.S.G. § 3E1.1, comment. (n.2). Applying the interpretive maxim

expressio unius est exclusio alterius, I conclude that the example

given here, in which the defendant proceeds to trial to preserve issues

not relating to factual guilt, demonstrates that a defendant is not entitled to a reduction when he has proceeded to trial to contest factual

guilt. Thus, I would hold that the district court properly concluded

that Hargrove disqualified himself from receiving a § 3E1.1 reduction

by contesting the facts underlying his § 924(c) offense. Because the

majority holds otherwise, I respectfully dissent in part.

UNITED STATES v. HARGROVE 21