In the

United States Court of Appeals

For the Seventh Circuit

Nos. 00-2464, 00-2591

United States of America,

Plaintiff-Appellee, Cross-Appellant,

v.

Edmund J. Lopinski, Jr.,

Defendant-Appellant, Cross-Appellee.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 97 CR 165-1--James B. Zagel, Judge.

Argued December 12, 2000--Decided January 8, 2001

 Before Bauer, Posner, and Kanne, Circuit Judges.

 Posner, Circuit Judge. After pleading guilty to

wire fraud, 18 U.S.C. sec. 1343, the defendant

was sentenced to 48 months in prison and ordered

to pay restitution of $718,000 to the victims of

his fraud. Given the scale and sophistication of

the fraud, which involved Lopinski’s looting

millions of dollars from a multi-hundred-milliondollar corporation that he controlled, the only

ground of his appeal--that the district judge

violated Fed. R. Crim. P. 11(c)(1) by failing to

inform him at the guilty-plea hearing that the

government would have to prove that the fraud was

intentional--borders on the comic. Although there

was no written plea agreement, an "Acknowledgment

of Rights and Voluntary Plea" that Lopinski

helped prepare in collaboration with his lawyers

not only states that he understands the elements

of the offenses with which he was charged, but

recites facts that demonstrate the intentional

character of the fraud beyond any doubt. In

moving to withdraw his plea, he argued that his

lawyers had failed to dispel a misconception

created in his mind by the fact that the words

"intent to defraud" do not appear in the

Acknowledgment. The judge held a hearing at which

the lawyers testified that they had made clear to

Lopinski that if he had not intended the fraud,

he should not plead guilty. The judge believed

the lawyers and denied the motion to withdraw the
guilty plea.

 Though Lopinski by his motion to withdraw his

plea and by his false testimony in support of it

(and his further false denials of intent to

defraud made at his sentencing hearing) had shown

himself unrepentant, the judge granted him a

sentencing discount for acceptance of

responsibility. U.S.S.G. sec. 3E1.1. The

government, cross-appealing the sentence, argues

that the judge committed a clear error in finding

that Lopinski had accepted responsibility for his

misconduct.

 Lopinski did plead guilty, and that normally is

a necessary condition for the acceptance of

responsibility discount; but it is not

sufficient. sec. 3E1.1 Application Note 3; United

States v. Ewing, 129 F.3d 430, 435-36 (7th Cir.

1997). The purpose of the discount is not merely

to induce guilty pleas, sparing the government

the expense of a trial and the risk of acquittal,

valid benefits that can justify the quid pro quo

of a reduced sentence, United States v. Bonanno,

146 F.3d 502, 512-13 (7th Cir. 1998); United

States v. Beserra, 967 F.2d 254, 256 (7th Cir.

1992); it is also to reflect the reduced risk of

recidivism of a defendant who by facing up to the

wrongfulness of his conduct takes the first step

to better behavior in the future. United States

v. Stewart, 198 F.3d 984, 987 (7th Cir. 1999);

United States v. Bomski, 125 F.3d 1115, 1119 (7th

Cir. 1997); United States v. Mogel, 956 F.2d

1555, 1560 (11th Cir. 1992). The cases indicate

that both purposes must be present for the

discount to be proper. United States v. Grimm,

170 F.3d 760, 766 (7th Cir. 1999); United States

v. Pryor, 32 F.3d 1192, 1195 (7th Cir. 1994). The

merely strategic guilty plea, which may reflect

nothing more edifying than a certainty of

conviction if the defendant invokes his right to

a trial, does not augur well for his future

behavior. Against this it can be argued that an

inquest on the sincerity of a defendant’s

repentance neither is feasible, nor should be

necessary to earn the discount. Most guilty pleas

are strategic, as are most decisions to turn

state’s evidence. Why rule out the possibility of

rewarding such a decision? A guilty plea confers

benefits on prosecutors (and thus on society) by

freeing up time that they can use to bring

additional prosecutions. It relieves pressure on

the courts as well. And the defendant trades

higher certainty of punishment for a lower level

of punishment. If district judges must insist on

sincerity--a real change of heart--strategic

pleas will be no good to defendants, who then

will go to trial.

 But these ruminations cannot help Lopinski, who
forfeits his acceptance of responsibility discount

not because of the state of his heart but because

he tried to have things both ways--to have a chance

at acquittal plus the discount for foregoing that

chance, and because he used up a lot of

prosecutorial time by the motion to withdraw the

plea (surely as complex as many a trial) and his

appeal.

 Mr. Lopinski, to put it as charitably as

possible, is in the condition that psychologists

call "denial"; he is also a liar. Far from

acknowledging his violation of the wire-fraud

statute, he has denied, beginning with his motion

to vacate his guilty plea and continuing at his

sentencing hearing after the motion was denied,

that he intended to defraud anyone; and without

such intent he cannot be guilty. Given the nature

of his conduct, the denial is unbelievable, and

he further lied about what his lawyers told him

when he decided to plead guilty. The judge gave

him a sentencing bonus for obstruction of justice

by repeatedly perjuring himself at the post-plea

hearings, and Lopinski does not challenge the

ruling. He not only is not repentant, which we

have suggested should perhaps not be a condition

precedent for the grant of the acceptance of

responsibility (despite the language of the

cases); he is brazen or deluded.

 So how could the judge have thought him

deserving of an acceptance of responsibility

discount? Because the judge believed that

"ultimately, somewhere in his [Lopinski’s] psyche

he has the appropriate mental state," namely the

acceptance of "some form of moral responsibility"

(emphasis added). What the judge seems to have

meant by these unelaborated remarks, in light of

Lopinski’s own plea for mercy that preceded them,

is that Lopinski, while refusing to acknowledge

that he had intended to defraud anybody,

expressed what the judge considered genuine

regret for the harm that he had done, that is,

the losses he had caused by his conduct. And it

is true if paradoxical that people can feel

morally responsible for conduct that is (or that

they think is) blameless in the sense of being

wholly innocent in intent, as in the case of

Oedipus, who not only did not know, but had no

reason to know, that he had killed his father and

married his mother. So the judge may have been

correct in his conclusion, indeed insightful into

the complex character of moral responsibility,

given his premises. But we do not think that the

Sentencing Commission intended acceptance of

responsibility in this sense, cf. United States

v. Beserra, supra, 967 F.2d at 256; United States

v. Mohrbacher, 182 F.3d 1041, 1052 (9th Cir.

1999), and so we conclude that the district

judge’s error was one of law rather than one of
application of law to fact. Acceptance of

responsibility is not regret for the consequences

of innocent mistakes, but recognition that one

has violated the law. If Lopinski does not

realize that he committed fraud, he is quite

likely to repeat his fraudulent activity when he

is released from prison, although he may endeavor

to minimize the harm to others, for example by

preying entirely on banks and other large

institutions rather than on particularly

vulnerable individuals. But the more important

point is that, as we have already suggested, the

law cannot tolerate a situation in which a

criminal defendant plays heads I win tails you

lose by combining a perjurious attack on his

guilty plea with an appeal for mercy if the

attack fails. See United States v. Stewart,

supra, 198 F.3d at 987; United States v.

Martinez, 169 F.3d 1049, 1056 (7th Cir. 1999);

United States v. Champion, No. 00-2031, 2000 WL

1800260, at *4 (2d Cir. Dec. 8, 2000) (per

curiam); United States v. Patron-Montano, 223

F.3d 1184, 1191 (10th Cir. 2000).

 The judgment is vacated insofar as the sentence

reflects an adjustment for acceptance of

responsibility, and the case is remanded with

instructions to resentence the defendant without

that adjustment. In all other respects the

judgment is affirmed.

Affirmed in Part, Vacated in Part, 

and Remanded with Instructions.