United States Court of Appeals

For the First Circuit

No. 03-2181

UNITED STATES OF AMERICA,

Appellee,

v.

PETER MCLAUGHLIN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

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

Before

 Selya, Circuit Judge,

Coffin and Cyr, Senior Circuit Judges.

Thomas F. Hallett on brief for appellant.

Paula D. Silsby, United States Attorney, and F. Mark Terison,

Senior Litigation Counsel, on brief for appellee.

August 6, 2004
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SELYA, Circuit Judge. On December 11, 2002, a federal

grand jury superseded a single-count indictment handed up some four

months earlier and charged defendant-appellant Peter McLaughlin,

inter alios, with three counts involving drug trafficking. See 21

U.S.C. §§ 841(a)(1), 846; 18 U.S.C. § 2. On March 10, 2003, while

McLaughlin was free on pretrial release, local authorities arrested

him for operating a motor vehicle under the influence of

intoxicating liquor. See Me. Rev. Stat. Ann. tit. 29, § 2411. The

next day, he was again arrested and taken into state custody, this

time for possession of heroin. See id. tit. 17-A, § 1107-a.

McLaughlin reached an agreement with the federal

prosecutor on April 4, 2003. As a result, he pleaded guilty on

that date to a single-count information that charged him with a

one-time violation of 21 U.S.C. § 841(a)(1). At the disposition

hearing, the district court, troubled by McLaughlin's misbehavior

while on pretrial release, refused to reduce his offense level for

acceptance of responsibility. See USSG §3E1.1(a) (providing that

a defendant's offense level may be reduced by two levels if "the

defendant clearly demonstrates acceptance of responsibility for his

offense"). The court then imposed a 35-month incarcerative

sentence and, pursuant to the plea agreement, dismissed the

superseding indictment vis-à-vis McLaughlin.

McLaughlin's appeal focuses on a single ruling: the

denial of a downward adjustment for acceptance of responsibility.
1The Supreme Court has stated that in cases in which the legal

question is a "minor, detailed, interstitial question of sentencing

law," due deference must be given to the district court's decision.

Buford v. United States, 532 U.S. 59, 64 (2001). There, however,

the issue sub judice involved determining whether a specific

defendant's prior convictions had been consolidated for sentencing.

Id. at 60. The fact-intensive nature of that inquiry dictated the

use of a deferential standard of review. Id. at 66. That

situation is easily distinguished from the interpretive question

presented in this case.

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An inquiry into whether a defendant has accepted responsibility is

typically a fact-dominated enterprise, and we ordinarily review the

sentencing court's determination of such an issue for clear error.

United States v. Talladino, 38 F.3d 1255, 1263 (1st Cir. 1994);

United States v. Royer, 895 F.2d 28, 29 (1st Cir. 1990). When the

question involves an interpretation of the sentencing guidelines,

however, we employ de novo review. See Talladino, 38 F.3d at 1263

("[Q]uestions of law — including interpretive questions concerning

the meaning and scope of the sentencing guidelines — engender de

novo review."). The issue on appeal has two dimensions. It

requires us first to determine how section 3E1.1(a) operates (a

matter that entails plenary review)1 and then to determine the

supportability of the district court's factfinding (a matter that

entails review only for clear error).

We begin with the law-dominated dimension of McLaughlin's

argument. He asseverates that he accepted responsibility on April

4, 2003 (when he tendered his guilty plea to a lesser charge); that

he was fully compliant with the law between that date and the date
2By "exogenous," we mean conduct not directly related to the

offense(s) charged in the pending federal case.

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of sentencing; and that, accordingly, the lower court should have

granted him a downward adjustment for acceptance of responsibility.

In his view, the court erred in factoring his prior arrests into

the acceptance-of-responsibility calculus because those arrests

occurred before he accepted responsibility (and, thus, had no

bearing on whether his professions of remorse were authentic). In

essence, then, he proposes an interpretation of section 3E1.1(a)

that would forbid a sentencing court, when applying the guideline,

from examining exogenous acts undertaken by a defendant before he

manifests an initial acceptance of responsibility (such as by

entering a guilty plea).2

This is a bold, but misguided, proposition. In gauging

whether a defendant has accepted responsibility, a sentencing court

may appropriately consider whether he has voluntarily ceased all

participation in criminal activity. See USSG §3E1.1, comment.

(n.1(b)). It follows that when a defendant commits new offenses

after having been charged and those offenses reflect adversely on

the sincerity of the defendant's avowed contrition, the sentencing

court may treat the commission of those offenses as an indication

that the defendant has not accepted responsibility for the original

crime. United States v. Carrington, 96 F.3d 1, 9 (1st Cir. 1996).

In such circumstances, a sentencing court lawfully may "decline to
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award a reduction for acceptance of responsibility on that ground

alone." Id.

McLaughlin seeks to carve out an exception to this

principle for exogenous pre-plea offenses. Rather than

acknowledging the radical nature of this exception, he strives to

portray it as a mainstream interpretation supported by a majority

of the courts of appeals. This portrayal does not withstand

scrutiny.

To be sure, McLaughlin marshals a long list of cases to

buttress his proposition. See, e.g., United States v. Prince, 204

F.3d 1021 (10th Cir. 2000); United States v. Ngo, 132 F.3d 1231

(8th Cir. 1997); United States v. Byrd, 76 F.3d 194 (8th Cir.

1996); United States v. McDonald, 22 F.3d 139 (7th Cir. 1994);

United States v. Pace, 17 F.3d 341 (11th Cir. 1994); United States

v. Woods, 927 F.2d 735 (2d Cir. 1991); United States v. Cooper, 912

F.2d 344 (9th Cir. 1990); United States v. Scroggins, 880 F.2d 1204

(11th Cir. 1989). Fairly read, these decisions do not help

McLaughlin; they merely stand for the inverse of his proposition.

In each of them, the defendant had accepted responsibility and then

committed a subsequent offense that the district court found

sufficient to undermine the sincerity of the professed acceptance

of responsibility. See, e.g., Prince, 204 F.3d at 1023-24; Ngo,

132 F.3d at 1233; Byrd, 76 F.3d at 196-97; McDonald, 22 F.3d at

144; Pace, 17 F.3d at 343; Woods, 927 F.2d at 736; Cooper, 912 F.2d
3Indeed, in one of the cases cited by McLaughlin, the Eleventh

Circuit, although not specifically holding that the sentencing

judge may look to the defendant's behavior before his acceptance of

responsibility, upheld a denial of a section 3E1.1(a) credit when

the defendant had engaged in illegal behavior while on pretrial

release before entering a guilty plea. See Scroggins, 880 F.2d at

1216.

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at 348; Scroggins, 880 F.2d at 1215-16. That reasoning tells us

nothing about whether (or to what extent) acts committed before a

defendant accepts responsibility should be taken into consideration

in constructing the acceptance-of-responsibility calculus.3

McLaughlin places especially heavy reliance on the

decision in United States v. Tilford, 224 F.3d 865 (6th Cir. 2000),

in which the Sixth Circuit, on de novo review, vacated a district

court's refusal to award an acceptance-of-responsibility reduction

based upon the defendant's post-indictment but pre-plea behavior.

A close reading of this decision reveals that the court of appeals

did not purpose to establish a per se rule anent the timing of an

offender's exogenous acts, but, rather, required that "there be

some conduct that the court can find is inconsistent with that

specific acceptance of responsibility [betokened by] the guilty

plea." Id. at 868 (quoting United States v. Jeter, 191 F.3d 637,

641 (6th Cir. 1999)) (emphasis in Tilford). After applying this

requirement to Tilford's situation, the Sixth Circuit determined

that the relevant time period in that case was the period between

the guilty plea and the disposition hearing. Id. To the extent

(if at all) that Tilford establishes a per se temporal rule that
4The Sixth Circuit seems to be divided on the correct

interpretation of Tilford. See United States v. Hakley, ___ Fed.

Appx. __ (6th Cir. 2004); id. at __ (Suhrheinrich, J., dissenting).

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debars a sentencing court from examining any pre-plea behavior in

the course of gauging the genuineness of an accused's acceptance of

responsibility, we deem it inconsistent with Carrington, 96 F.3d at

9, and decline to follow it.4

Having found McLaughlin's string of citations

unpersuasive, we take a fresh look at the issue that he raises. A

defendant is entitled to a two-level credit if he "clearly

demonstrates acceptance of responsibility for his offense." USSG

§3E1.1(a). The burden is on the defendant to show an entitlement

to the reduction. See United States v. Franky-Ortiz, 230 F.3d 405,

408 (1st Cir. 2000); Royer, 895 F.2d at 29-30. Although the entry

of a guilty plea prior to trial is impressive evidence of

acceptance of responsibility, it does not automatically entitle a

defendant to the credit. See United States v. Bradley, 917 F.2d

601, 606 (1st Cir. 1990); see also USSG §3E1.1, comment. (n.3).

The sentencing court must still find that the defendant exhibits

"candor and authentic remorse" as opposed to mouthing "a pat

recital of the vocabulary of contrition." Royer, 895 F.2d at 30.

The Sentencing Commission has provided guidance for

courts charged with determining whether heartfelt remorse exists.

See USSG §3E1.1, comment. (n.1) (limning a non-exclusive list of
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factors that courts may consider in that regard). One factor is

whether the defendant "voluntarily has terminated or withdrawn from

criminal conduct or associations." Id. (n.1(b)). There is nothing

in this application note or elsewhere in the guidelines to suggest

a temporal limit on this factor. Moreover, the non-exclusivity of

the list suggests that the sentencing court should look to all

relevant data to reach a just result. For these reasons, we agree

with the Fifth Circuit that the commentary to section 3E1.1 fairly

implies that "a defendant's failure to comply with conditions of a

bond [can] be highly relevant to assessing the sincerity of the

defendant's contrition." United States v. Hooton, 942 F.2d 878,

883 (5th Cir. 1991).

On policy grounds, the temporal cut-off proposed by

McLaughlin makes very little sense. Timely acceptances of

responsibility already are rewarded by a provision that allows for

an additional one-level reduction if the defendant "(1) timely

provid[es] complete information to the government concerning his

own involvement in the offense; or (2) timely notif[ies]

authorities of his intention to enter a plea of guilty, thereby

permitting the government to avoid preparing for trial and

permitting the court to allocate its resources efficiently." USSG

§3E1.1(b). It would be perverse to encourage a practice whereby a

defendant, released on bail, would be benefitted by waiting as long

as possible before accepting responsibility. Yet that is what
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would happen if McLaughlin's argument were to prevail. Deferring

a guilty plea would work to a defendant's advantage by shrinking

the universe of conduct that could be counted against him in the

acceptance-of-responsibility calculus. In other words, the longer

the defendant postponed the entering of a guilty plea, the less the

exogenous criminal conduct that the sentencing court would be able

to consider. And this would be so regardless of the heinousness of

the exogenous crimes or the lack of contrition that they might

betoken. The guidelines ought to be construed in a commonsense

manner, and we are not inclined to impute to the Sentencing

Commission so counter-intuitive a design.

We note, too, that courts regularly consider a

defendant's favorable pre-plea conduct in granting downward

adjustments for acceptance of responsibility. See, e.g., United

States v. Sklar, 920 F.2d 107, 115-16 (1st Cir. 1990); United

States v. Wilkes, 130 F. Supp. 2d 222, 240 (D. Mass. 2001). Most

streets run two ways, and McLaughlin has offered no sensible reason

why a defendant's praiseworthy pre-plea conduct should be figured

into the calculus but his blameworthy pre-plea conduct should not.

To sum up, we conclude that McLaughlin's cramped

interpretation of the acceptance-of-responsibility guideline is

incorrect. We reject that interpretation and hold that the

district court had the right to consider McLaughlin's exogenous
5Given the Tilford court's wording of this rule, it is

arguable that knowledge of a federal investigation may be enough to

start the clock. For present purposes, we need not explore that

possibility.

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pre-plea conduct in denying him an acceptance-of-responsibility

discount.

Anticipating the possibility of such a holding,

McLaughlin makes an alternative argument. This argument is

premised on two facts: (1) that he pleaded to an information that

did not exist until around the time of the plea agreement, and (2)

that the exogenous crimes he committed while on pretrial release

antedated the filing of the information. Building on this

foundation, he posits that those crimes could not be used to

justify the denial of an acceptance-of-responsibility adjustment.

His premise is accurate, but the conclusion that he draws from it

is not.

As a general matter, it is true that courts cannot go

back limitlessly in time in assessing acceptance of responsibility.

See United States v. Ceccarani, 98 F.3d 126, 130 (3d Cir. 1996);

McDonald, 22 F.3d at 141. Normally, the lodging of a federal

charge marks the commencement of the relevant time frame. Tilford,

224 F.3d 868 (explaining that a "defendant must be on notice that

the federal government has an interest in his or her affairs before

the acceptance-of-responsibility guideline comes into play").5 The

rationale for using this milestone is that the clock should start
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to run no later than the time that the defendant has been put on

notice, by the filing of a formal charge, that federal prosecutors

have taken an interest in his conduct.

McLaughlin's argument founders on these shoals. From and

after the date of the original indictment, McLaughlin knew full

well that the Justice Department had an interest in the conduct

underlying the count of conviction (i.e., his drug trafficking in

April of 2002). He nevertheless committed other crimes while on

pretrial release for the federal charge. Tellingly, the very same

conduct supplied the basis both for the charges contained in the

indictment and for the lone count of the information that

superseded it. Where, as here, the same conduct is the basis of

both an original and a superseding charge, distinguishing between

the two for acceptance-of-responsibility purposes would mindlessly

exalt form over substance. Under these circumstances, McLaughlin's

entitlement to an acceptance-of-responsibility discount should not

depend upon which charging document was in force when he entered

his plea.

Our conclusion that the district court properly

interpreted section 3E1.1(a) as ceding it discretion to consider

McLaughlin's exogenous pre-plea arrests brings us to the second

half of our bifurcated inquiry. This exercise need not occupy us

for long.
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It is uncontroverted that while on pretrial release,

McLaughlin drove under the influence of alcohol and possessed

heroin. Pretrial release is far from automatic in federal drugtrafficking cases, and by engaging in the conduct described above,

McLaughlin broke his promise to behave in a law-abiding manner

while free on bond. By like token, those actions impugned the

district court's authority. Thus, it was not clearly erroneous for

the court to conclude that the commission of these new crimes

belied the genuineness of any self-serving claim of remorse. See,

e.g., Ceccarani, 98 F.3d at 129-30 (holding that post-offense

conduct can shed a bright light on the sincerity of a defendant's

professed remorse); United States v. Kirkland, 28 F.3d 49, 50-51

(7th Cir. 1994) (similar); United States v. Kidd, 12 F.3d 30, 34

(4th Cir. 1993) (similar).

To say more on this point would be supererogatory.

Keeping in mind that the defendant must carry the devoir of

persuasion as to whether he deserves a downward adjustment for

acceptance of responsibility, Royer, 895 F.2d at 29-30, we find no

hint of error in the district court's determination that McLaughlin

fell short. Indeed, this case is a paradigmatic example of the

tenet that a sentencing court properly may deny a reduction for

acceptance of responsibility if a defendant engages in further

criminal conduct while on pretrial release. See Carrington, 96

F.3d at 9; see also United States v. O'Neil, 936 F.2d 599, 600 (1st
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Cir. 1991); see generally USSG §3E1.1, comment. (n.1(b)) (noting

that appropriate considerations in making the acceptance of

responsibility determination include a defendant's "voluntary

termination or withdrawal from criminal conduct").

We need go no further. After carefully reviewing the

sentencing guidelines, the commentary, the parties' briefs, and the

most analogous precedents, we conclude that a sentencing court has

the discretion, in an appropriate case, to consider a defendant's

conduct at any point after an indictment is handed up or an

information is filed. Here, the sentencing court appropriately

mulled, and sensibly acted upon, that type of evidence. The record

bears out the court's determination that McLaughlin engaged in

continued criminal conduct bespeaking a lack of sincere contrition.

Consequently, we uphold the court's refusal to reduce McLaughlin's

sentence for acceptance of responsibility.

Affirmed.