# United Stat es Court of Appeals For the First C ircuit

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, 2004-2- SELYA, Circuit Judge . On December 11, 200 2, a f ederal grandjury superseded a single-count indictment handed up some four months earlier and charged defendant-appellant Peter McLaughlin, inter alios, with three counts involving drug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 himfor 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 de fenda nt's offense level may be reduced by two levels if "the defendant clearlydemonstrates 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 fo cuse s on a single ruling: the denial of a downward adjustment for acceptance of responsibility.1 The 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. Bufordv. United States , 532 U.S. 59, 64 (2001). There, however, the issue s ub j udice involved determining whether a specific defendant's prior convictions hadbeen 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 interpre tive question presented in this case. -3- An inquiry into whether a defendant has accepted responsibilityis typicallya fact-dominated enterprise, and we ordinarily review the sentencing court's determination of such an issue for clear error. UnitedStates v. Talladino , 38 F.3d 1255, 1263 (1st Cir. 1994); UnitedStates 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 a nd the n 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 date2 By"exogenous," we mean conduct not directly related to the

offense(s) charged in the pending federal case. -4- of sentencing; and that, accordingly, the lower court should have grantedhim a downward adjustment for acceptance of responsibility. In his view, the court erred in factoring hi s pri or 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

esse nce, 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 mayappropriately consider whe ther he has voluntarily ceased all par ticipation in criminal activity. See USSG §3E1.1, commen t . (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-5-

award a reduction for acceptance of responsibility on that ground alone." Id.

McLaughl in s eeks to carve out an exception to this pri nciple for exogenous pre-plea offenses. Rather t ha n 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.3d1021 (10th Ci r. 2000); United States v. Ngo , 132 F.3d 1231 (8th Cir. 1997); United States v. B yrd , 76 F .3d 194 (8th Cir. 1996); United States v. McDonald , 22 F.3d 139 (7th Cir. 1994); UnitedStates 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.2d344 (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 commit ted 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.2d3 Indeed, in one of the cases cited by McLaughlin, the Eleventh

Cir cuit, 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 beha vio r while on pretrial release before entering a guilty plea. See Scroggins , 880 F.2d at 1216. -6- at 34 8; 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.3d865 (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. Aclose 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 respons i bility [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 situati on, 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 Tilfordestablish es a per se temporal rule that4 Th e S ixth 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).

-7- 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 entit led 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 UnitedStates 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 Unite d States v. Bradley , 917 F.2d 601, 606 (1st Cir. 1990); see also USSG §3E1.1, comment. (n.3). The senten cing c ourt must still find that the defendant exhibits "candor and authentic re mor se" 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-8-

facto rs 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." Un ited S tates v. Hooton , 942 F.2d 878, 883 (5th Cir. 1991).

On policy grounds, the te mporal cut-off proposed by Mc Laug hlin makes very little sense. Timely acceptances of responsibilityalreadyare rewarded by a provision that allows for

an additional one-level re duct ion if the defendant "(1) timely provid[es] complete information to t he government concerning his

own involvement in the offense; or (2) timely noti f[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 wherebya defendant, released on bail, would be benefitted by waiting as long

as possible before accepting responsibility. Yet that is what-9-

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 counte d aga inst him in the acceptance-of-responsibility calculus. In other words, the longer the defendant postponedthe entering of a guilty plea, the less the exogenous criminal conduct that the sentencing court wouldbe 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.

W e note, too, that courts regularly consider a defendant's favorable pre-plea conduct in granting downward adjustments for acceptance of resp onsibility. 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 blameworthypre-plea conduct shouldnot.

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 exogenous5 Giv en the Tilfordcourt's wording of this rule, it i s

arguable that knowledge of a federal investigation may be enough to start the clock. For present purposes, we need not expl ore that possibility. -10- 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 premisedon two facts: (1) that he pleaded to an information that didnot exist until around the time of the plea agreement, and (2) that the e xogenous crimes he committed while on pretrial release

a ntedatedthe filing of the information. Building o n thi s 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 (3dCir. 1996); McDonald , 22 F.3d at 141. Normally, the lodgi ng 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-11-

to run n o 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 kne w f ull 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 ind ictment and for the lone count of the information that supersededit. 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 dependupon which charging document was in force when he entered his plea. Our conclusion that the district court properly interpretedsection 3E1.1(a) as ce ding 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.-12- It is uncontroverted that while on pr etrial release, McLaughlin drove under the influence of alcohol and possessed heroin. Pretrial release is far from automatic in federal drugtrafficking cases, andby 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 impugn ed t he district court's authority. Thus, it was not clearly erroneous for the court to conclude that the commission of these new crimes beliedthe 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 professedremorse); United States v. Kirkland , 28 F.3d 4 9, 50-51 (7th Cir . 199 4) (similar); United States v. Kidd , 12 F.3d 30, 34 (4th Cir. 1993) (similar).

To say more on this point woul d 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 fe ll short. Indeed, this case is a paradigmatic examp le of th e tenet that a sentencing court properly may deny a reduction for acceptan ce o f responsibility if a defendant engages in further cri min al conduct while on pretrial release. See Carrington , 96 F.3dat 9; see also United States v. O'Neil , 936 F.2d 599, 600 (1st-13-

Cir. 1991); see generallyUSSG §3E1.1, comment. (n.1(b)) (noting that appropriate co nsi derations in making the acceptance of responsibilitydetermination include a defendant's "voluntary termination or withdrawal from criminal conduct").

We need go no fu rth er. 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 i s handedup 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 th at M cLaughlin engaged in continuedcriminal conduct bespeaking a lack of sincere contrition. Consequently, we upholdthe court's refusal to reduce McLaughlin's sentence for acceptance of responsibility.

Affirmed .