Remorse Not Requried for Acceptance of Responsibility, But Lack of Remorse a Valid Basis for Upward Variance

United States v. Douglas, No. 07-11007 (5th Cir. May 29, 2009) (O'Connor,* Wiener, Stewart)

Can a defendant receive an acceptance-of-responsibility adjustment under guideline §3E1.1, even if he is not remorseful for having committed the offense? Yes. That's the good news in Douglas. The bad? A district court may impose an above-Guidelines sentence based on that lack of remorse.

Our facts:

Chuck Lavon Douglas pled guilty . . . to a single count of possession of ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The charge arose after a minor who was at Douglas’s home at the time accidentally shot himself in the hand with a loaded handgun that Douglas had handed to him. After the child was taken to the hospital, police obtained a search warrant and searched Douglas’s residence. Douglas cooperated in the search and led police to the handgun and several rounds of ammunition. Although these events took place in late August 2003, Douglas was not charged until February 27, 2007, in part because he had been living in Mexico in an attempt to avoid arrest on other state charges.

Douglas's Guidelines range worked out to 18 to 24 months, which included the full 3-level adjustment for acceptance of responsibility. When asked by the district court at sentencing if he had learned anything from his offense, Douglas said that he "should have stayed in Mexico" with his wife and child. Pressed by the court as to whether he was remorseful, Douglas responded that the minor had shot himself. Ultimately, "[t]he district court determined that a non-Guidelines sentence [of 36 months' imprisonment] was appropriate based on the Guidelines range and the § 3553(a) factors, citing Douglas’s lack of remorse, that a child was injured as a result of his offense, and that he had repeatedly indicated that he should have stayed in Mexico."

On appeal, "Douglas argue[d] that the district court committed procedural error when it did not first consider [his] lack of remorse in calculating the applicable Guidelines range before using that factor to justify a higher, non-Guidelines sentence[,] . . . contend[ing] that 'lack of remorse' is essentially the same basis on which [the court] contrarily granted him a three-point reduction from his offense level pursuant U.S.S.G. § 3E1.1 for 'acceptance of responsibility.'" He relied primarily on the Fifth Circuit's 2004 decision in United States v. Andrews, which held that the "district court committed reversible error by granting the defendant an offense level reduction for acceptance of responsibility, but then finding his lack of acceptance of responsibility to justify an upward departure from the Guidelines."

Apples and oranges, the court replied:

We hold that “lack of remorse” and “acceptance of responsibility” can be separate factors and that a district court may consider each independently of the other. The district court in Andrews used contrary findings on the very same factor to grant a downward enhancement and then upwardly depart, while here the court based its upward variance on “lack of remorse,” an independent factor. Because lack of remorse is a different consideration from finding acceptance of responsibility pursuant to § 3E1.1, it need not be addressed during the Guidelines calculation. . . . Acceptance of responsibility accounts for the defendant’s guilty plea, which relieves the government of the burden of being put to its proof. See § 3E1.1(b), cmt. 2, 3. It is not inconsistent for the district court to have determined that Douglas accepted and admitted his culpability for the crime but at the same time demonstrated a lack of remorse for his conduct.

Moreover, "[u]nder the advisory Sentencing Guidelines, the district court . . . is free to give more or less weight to factors already accounted for in that advisory range."

A couple of other things to note:

1) Preservation of claimed procedural error. Unlike in many recent cases, the court found that Douglas had properly preserved the issue below. Here's how:

In response to a question from defense counsel, the district court stated that the sentence was “a non-Guidelines sentence.” Defense counsel then objected to the court’s non-Guidelines sentence based on the minor’s injury. The district court clarified that the reasons for the upward departure were Douglas’s lack of remorse and his statements that he should not have returned from Mexico, not the injury to the minor. It further explained that a twenty-four month sentence was not adequate to address the § 3553(a) concerns of promoting respect for the law and just punishment. Defense counsel maintained the objection to the upward departure, on grounds that it deprived Douglas of his credit for acceptance of responsibility and that lack of remorse was not taken into account by the court in determining the Guidelines range.

Whether this much objecting is necessary the opinion doesn't say. But it does illustrate what would be sufficient to avoid plain error review on this particular issue.

2) The Fifth Circuit continues to draw a distinction between Guidelines and non-Guidelines sentences for purposes of reasonableness review.

This court’s post-Booker case law recognizes three types of sentences: (1) one within a properly calculated Guideline range; (2) one that is an upward or downward departure as allowed by the Guidelines, which is also a Guideline sentence; or (3) a non-Guideline sentence which is either higher or lower than the relevant Guideline sentence. United States v. Tzep-Mejia, 461 F.3d 522, 525 (5th Cir. 2006).

This ostensibly matters because only Guidelines sentences get a presumption of reasonableness on appeal. But it may be little more than a formal distinction, given the Fives' deferential approach to substantive reasonable review.

*Yes, that's retired Supreme Court Justice Sandra Day O'Connor, sitting by designation.