CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

I. PARTIES AND AMICI:

A. Names of parties Below and on Appeal

This appeal arises from a criminal proceeding involving the defendant-appellant, xxxxxxxxxx, and the plaintiff-appellee, the United States of America. As these are the only parties who appeared below, they are also the only ones on appeal. There are no amici.

II. RULINGS UNDER REVIEW:

This is an appeal from a judgment of the district court (Honorable Royce C. Lamberth), dated February 8, 1994, adjudging appellant guilty after his plea of guilty to a charge of possession with the intent to distribute five grams or more of cocaine base. In this appeal, appellant seeks review of the sentence, consisting of a term of imprisonment of 108 months, followed by a term of supervised release of 5 years, and a special assessment of $50.00, imposed on him by the district court (Lamberth, J.) on February 8, 1994. In arriving at this sentence, the district court denied appellant's request for a two-level reduction for acceptance of responsibility under U.S.S.G. з 3E1.1. This ruling has not been reported.

III. RELATED CASES:

There are no related cases and the instant case has not previously been before this Court.

TABLE OF CONTENTS

TABLE OF AUTHORITIES ii

ISSUE PRESENTED 1

STATUTES AND REGULATIONS 2

JURISDICTION 2

STATEMENT OF THE CASE 2

(i) Nature of the Case, Course of Proceedings, and Disposition in the Court Below. 2

(ii) Statement of Facts 3

A. Guilty Plea and Subsequent Flight 3

B. Sentencing 4

SUMMARY OF ARGUMENT 6

ARGUMENT

I. THE DISTRICT COURT ERRED IN DENYING A REDUCTION FOR ACCEPTANCE OF RESPONSIBILITY UNDER U.S.S.G. з 3E1.1 WITHOUT ADEQUATELY WEIGHING ALL PERTINENT FACTORS WHERE THE CIRCUMSTANCES OF THE CASE WERE EXTRAORDINARY, JUSTIFYING ADJUSTMENTS BOTH FOR ACCEPTANCE OF RESPONSIBILITY AND FOR OBSTRUCTION OF JUSTICE. 7

A. Standard of Review 8

B. The Extraordinary Circumstances of This Case Justify a Reduction for Acceptance of Responsibility. 8

C. The District Court Failed to Weigh All Relevant Factors. 12

CONCLUSION 14

CERTIFICATE OF LENGTH 14

CERTIFICATE OF SERVICE 15

ADDENDUM

TABLE OF AUTHORITIES

CASES

United States v. Amos,

984 F.2d 1067 (10th Cir. 1993) 10, 11

United States v. Hicks,

948 F.2d 877 (4th Cir. 1991) 9, 11

United States v. Kim,

23 F.3d 513 (D.c. Cir. 1994) 8

United States v. Khang,

36 F.3d 77 (9th Cir. 1994) 9, 10

United States v. Rodriguez,

928 F.2d 65 (2d Cir. 1991) 7

United States v. Tello,

9 F.3d 119 (5th Cir. 1993) 9, 10

United States v. Yeo,

936 F.2d 628 (1st Cir. 1991) 10

STATUTES AND GUIDELINES

18 U.S.C. з 3742(e) 8, 13

21 U.S.C. зз 841(a)(1) and 841(b)(1)(B)(iii) 2

U.S.S.G. з 3C1.1 3, 6, 8, 9

U.S.S.G. з 3E1.1 passim

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

______________________________________________

NO. xxxxxxxxxxxx

______________________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

xxxxxxxxxxxxxxxxxxxxxxxx,

Defendant-Appellant.

_______________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

________________________________________________

BRIEF FOR APPELLANT

________________________________________________

ISSUE PRESENTED

I. Whether the district court erred in denying a reduction for acceptance of responsibility under U.S.S.G. з 3E1.1 without adequately weighing all pertinent factors where the circumstances of the case were extraordinary, justifying adjustments both for acceptance of responsibility and obstruction of justice.

STATUTES AND REGULATIONS

The pertinent statutes and Sentencing Guidelines appear in the addendum to this brief.

JURISDICTION

This Court has jurisdiction over this direct appeal of a final judgment in a criminal case, pursuant to 28 U.S.C. з 1291. The district court had jurisdiction over the case under 18 U.S.C.з 3231.

STATEMENT OF THE CASE

(i) Nature of the Case, Course of Proceedings, and Disposition in the Court Below.

On June 4, 1991, Alexander xxxxxxxx was named in a two-count indictment charging him in Count One with unlawful possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. зз 841(a)(1) and 841(b)(1)(B)(iii), and in Count Two with unlawful maintenance of premises to manufacture, distribute, store, or use a controlled substance, in violation of 21 U.S.C. з 856(a). [A. 8]⁽¹⁾

On July 24, 1991, Mr. xxxxxxxx pled guilty to Count One, and pursuant to a plea agreement, the government dismissed Count Two. (7/24/91 Tr. 2-3). After entering his guilty plea, he was released to the District of Columbia Department of Corrections Work Release Program pending sentencing. Thereafter, on September 7, 1991, he failed to return from his place of employment to the halfway house and was placed on escape status. He remained in escape status until his arrest on August 30, 1993, for a traffic violation. (8/30/93 Tr. 2).

Mr. xxxxxxxx was sentenced on February 8, 1994, to 108 months imprisonment, based on an offense level of 30 and a criminal history category of II, to be followed by five years on supervised release, and a special assessment of fifty dollars. [A. 46]. The offense level calculation included a two-level increase for obstruction of justice pursuant to U.S.S.G. з 3C1.1 for his escape from the halfway house. In addition, the district court denied defendant's request for a two-level reduction for acceptance of responsibility under U.S.S.G. з 3E1.1. [A. 37]⁽²⁾

A timely notice of appeal was filed February 17, 1994, and this appeal ensued. [A. 50]

(ii) Statement of Facts

A. Guilty Plea and Subsequent Flight

The case arose from the execution of a search warrant at xxxxx Irving Street, N.W., Apartment 4, Washington, D.C., on May 17, 1991 (7/24/91 Tr. 6). During the search of the apartment, which was occupied by Mr. xxxxxxxx, Metropolitan Police officers recovered a quantity of cocaine base.

On July 24, 1991, Mr. xxxxxxxx pled guilty, pursuant to a sealed written plea agreement, to one count of possession with the intent to distribute five grams or more of cocaine base. The terms of the plea agreement stipulated that the prosecutor would move to dismiss the other count of the indictment at the time of sentencing. (7/24/91 Tr. 2-3, 10) In addition, Mr. xxxxxxxx agreed to provide assistance to the government by participating in controlled drug purchases from targeted individuals in exchange for a possible downward departure from his guideline range. [A. 33-34]

While on work release after his guilty plea, Mr. xxxxxxxx participated in $2,000 worth of controlled buys as part of his cooperation agreement with the government. [A. 18] In attempting to make further controlled buys, the target of the investigation became suspicious. Although Mr. xxxxxxxx informed the police that he was being threatened and wanted to be removed from the halfway house and put in protective custody, his police handlers instructed him to continue his contact with the target to consummate the deal. [A. 18]

After receiving a series of threats, Mr. xxxxxxxx fled the country. [A. 19-20] He went to xxxxxxx to care for his elderly grandfather who was suffering from tuberculosis. (PSR 3) Upon his return to the United States on June 10, 1992, Mr. xxxxxxxx lived in Maryland with his father. (PSR 3) He remained a fugitive until his arrest for a traffic violation on August 30, 1993.

(PSR 3)

B. Sentencing

On November 15, 1993, the presentence investigation report was prepared. The PSR calculated a base offense level of 28, a two-level adjustment for obstruction of justice, and recommended against a two-level reduction for acceptance of responsibility. (PSR 3-4) The final calculation was an offense level of 30 and a criminal history category of II. (PSR 4-5) Mr. xxxxxxxx filed timely objections to the PSR. (PSR 10-11)

On February 3, 1994, the district court held a presentencing hearing in which Mr. xxxxxxxx challenged, inter alia, the denial of a two-level reduction for acceptance of responsibility. In this regard, he argued that he had admitted his involvement in the instant offense by entering a timely guilty plea, thereby allowing the government to avoid preparation for trial. (PSR 10) He stated that he fled due to an "emotional crisis," (PSR 10), caused by the threats against him and his family. The PSR recommended against an adjustment for acceptance of responsibility because of the obstruction of justice enhancement. (PSR 4) The recommendation against an adjustment for acceptance was based upon Mr. xxxxxxxx's flight and failure to inform authorities upon his return from El Salvador. (PSR 10-11)

At the presentencing hearing, the court essentially adopted the findings of the PSR. Although the court found that Mr. xxxxxxxx had accepted responsibility when he entered the guilty plea, it denied the adjustment because he had "clearly obstructed justice by his flight and failure to return". [A.37] For the same reason, the court added two points for obstruction of justice. [A. 37]

At his sentencing on February 8, 1994, Mr. xxxxxxxx again told the court of the threats against him, pointed out that he had stayed out of trouble since his return from El Salvador, and expressed remorse for his conduct. [A. 43] Although the court acknowledged his law-abidingness since his return from El Salvador, it refused to grant him an adjustment for acceptance of responsibility and sentenced Mr. xxxxxxxx to a prison term of 108 months followed by 5 years of supervised release. [A. 44]

SUMMARY OF ARGUMENT

Although Mr. xxxxxxxx entered an early guilty plea and acknowledged responsibility for the charged offenses, the district denied a reduction for acceptance of responsibility. Under U.S.S.G. з 3E1.1, where extraordinary circumstances exist, a defendant may be entitled to a reduction for acceptance of responsibility even when s/he receives an enhancement for obstruction of justice under U.S.S.G. з 3C1.1. However, the sentencing court failed to weigh all of the factors pertinent to the acceptance of responsibility determination. Instead, the judge only considered Mr. xxxxxxxx's obstructive conduct -- his flight -- in denying the reduction for acceptance of responsibility. Thus, the court did not weigh adequately the considerations set forth in the Application Notes to з 3E1.1, which are relevant to a determination of whether the case is "extraordinary," thereby warranting adjustments for both obstruction and acceptance of responsibility. For these reasons, a remand for resentencing is necessary.

ARGUMENT

Mr. xxxxxxxx was punished harshly for his flight and failure to return voluntarily to court, which resulted in a two-level increase in his offense level for obstruction of justice and the denial of a two-level reduction for acceptance of responsibility. Notwithstanding his guilty plea and cooperation with the police, Mr. xxxxxxxx essentially received a four-level adjustment in his offense level due to his flight and failure to return to court. Given a Criminal History Category II, the range for offense level 30 (adjusting for obstruction of justice only) is 108-135 months; for offense level 28 (adjusting for both obstruction of justice and acceptance of responsibility), the range is 87-108 months. Thus, there is a significant difference between the applicable guideline ranges depending upon whether the acceptance of responsibility adjustment is applied.

Because of the great deference accorded the sentencing court in determining whether a defendant has accepted responsibility, see U.S.S.G. з 3E1.1, comment. (n.5), it must carefully weigh and articulate each of the factors relevant to its decision. United States v. Rodriguez, 928 F.2d 65, 68 (2d Cir. 1991) (remand where sentencing court failed to articulate factors relevant to acceptance of responsibility determination). In the instant case, the sentencing judge apparently weighed only Mr. xxxxxxxx's flight in denying a reduction under з 3E1.1. Thus, the court failed to consider adequately the threats to Mr. xxxxxxxx and his family, his termination from criminal activity, and his assistance to law enforcement authorities. As a result, the court's conclusion that this did not constitute an extraordinary case warranting adjustments under both

з 3C1.1 and з 3E1.1 was reached without weighing all of the factors relevant to that determination. Therefore, a remand for resentencing is necessary.

A. Standard of Review

The district court's denial of a reduction for acceptance of responsibility under U.S.S.G. з 3E1.1 is entitled to "due deference," a standard of review falling between de novo and clearly erroneous. United States v. Kim, 23 F.3d 513, 517 (D.C. Cir. 1994) (court of appeals shall give due deference to district court's application of guidelines to facts; citing 18 U.S.C.

з 3742(e)).

B. The Extraordinary Circumstances of This Case Justify a Reduction for Acceptance of Responsibility.

Under з 3E1.1, entry of a timely guilty plea combined with truthfully admitting the offense conduct, "constitute[s] significant evidence of acceptance of responsibility . . .." U.S.S.G. з 3E1.1, comment. (n.3). Prior to the 1989 amendment to that guideline, a defendant who received an adjustment for obstruction of justice was precluded from receiving a reduction for acceptance of responsibility. However, effective November 1, 1989, the Sentencing Commission amended the applicable Application Note (4) by deleting the previous note and inserting the following in its place:

Conduct resulting in an enhancement under з 3C1.1 (Willfully Obstructing or Impeding Proceedings) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases, in which adjustments under both зз 3C1.1 and 3E1.1 may apply. Appendix C, Amendment 258 (November 1, 1989). The Commission noted that the purpose of the amendment was "to provide for extraordinary cases in which adjustments under both з 3C1.1 and з 3E1.1 are appropriate . . .." Id.

Regrettably, in amending Application Note 4, the Sentencing Commission did not provide courts with any guidance in identifying those "extraordinary cases" in which з 3C1.1 and з 3E1.1 adjustments may apply. Not surprisingly, the decisions applying the amended guideline are somewhat inconsistent. Compare United States v. Khang, 36 F.3d 77, 80 (9th Cir. 1994) (obstructing justice by lying about motive to obtain downward sentencing departure does not preclude reduction for acceptance of responsibility); United States v. Tello, 9 F.3d 1119, 1123 (5th Cir. 1993) (obstructing justice by providing false information to probation officer conducting presentence investigation does not preclude reduction for acceptance of responsibility where defendant "early on" agreed to plead guilty and does not obstruct justice until post-plea stage of proceedings) and United States v. Hicks, 948 F.2d 877, 884-885 (4th Cir. 1991) (obstructing justice by flight from arrest that endangered police does not preclude reduction for acceptance of responsibility where defendant's cooperation after arrest resulted in recovery of drugs abandoned during flight) with United States v. Amos, 984 F.2d 1067, 1072-1073 (10th Cir. 1993) (obstructing justice by post-plea escape attempt justifies denial of reduction for acceptance of responsibility) and United States v. Yeo, 936 F.2d 628, 629 (1st Cir. 1991) (obstructing justice by post-plea flight justifies denial of reduction for acceptance of responsibility).

Although these decisions cannot be reconciled easily, a few guiding principles can be gleaned from them. First, the cases recognize that by amending 3E1.1, the Sentencing Commission contemplated that there would be cases where an upward adjustment for obstruction of justice and a downward one for acceptance of responsibility would be proper. Clearly, the term "extraordinary cases" in Application Note 4 allows for exceptions to the general rule that obstruction of justice disqualifies a defendant from an acceptance of responsibility adjustment. United States v. Khang, 36 F.3d at 80.

Next, the courts that have found cases to be "extraordinary" have weighed the timing and nature of both the obstructive conduct and the conduct evidencing acceptance of responsibility. For example, in United States v. Tello, 9 F.3d at 1123, the court noted that the defendant had demonstrated his acceptance of responsibility by agreeing to plead guilty in the early stages of the proceedings and had not obstructed justice until after his guilty plea when he provided false information to the presentence report writer. Similarly, in the instant case, Mr. xxxxxxxx entered a timely guilty plea and immediately thereafter began cooperating with law enforcement authorities. His obstructive conduct -- flight from the halfway house -- did not occur until less than three weeks before his sentencing date. Moreover, unlike the obstructive conduct that occurred in the cited cases, Mr. xxxxxxxx's flight was in response to what he perceived to be life-endangering threats. In that respect, the mitigating circumstances surrounding Mr. xxxxxxxx's obstruction of justice, juxtaposed with his early acceptance of responsibility and substantial assistance to authorities, are more "extraordinary" than the circumstances in the cited cases.

Finally, in determining whether a case is "extraordinary," courts weigh the considerations set forth in the Commentary to з 3E1.1. For example, in United States v. Hicks, 948 F.2d at 885, the court affirmed a reduction for acceptance of responsibility where the defendant's post-arrest cooperation resulted in the recovery of abandoned drugs. See U.S.S.G. з 3E1.1

comment. (n.1(e)). Similarly, in United States v. Amos, 984 F.2d at 1073, the court denied an acceptance of responsibility reduction where it found that the defendant's post-plea escape attempt was evidence that he had not withdrawn from criminal conduct. See U.S.S.G. з 3E1.1 comment. (n.1(b)). In contrast, in the instant case, Mr. xxxxxxxx truthfully admitted his offense conduct (n.1(a)), terminated his criminal conduct (n.1(b)), and provided assistance to authorities (n.1(e)). Given these circumstances, Mr. xxxxxxxx's acceptance of responsibility in this case clearly was more "extraordinary" than the acceptances of responsibility by the respective defendants in the cited cases in which з 3E1.1 reductions were granted.

C. The District Court Failed to Weigh All Relevant Factors.

In concluding that Mr. xxxxxxxx's flight and failure to return to court precluded a reduction for acceptance of responsibility, the court stated:

I find that the two points addition for obstruction of justice, due to the defendant's flight and failure to ever voluntarily return, and his absence for the two years, is an appropriate addition, and he should have two points added for obstruction of justice.

I also deny the defendant's request for a two-point reduction for acceptance of responsibility. I agree that he accepted responsibility at the time he entered his plea. However, he did not adhere to that when he fled, and even if I accept his version that he fled in response to some threats, the failure to ever return after a period of years, does not create the type of extraordinary circumstance that would allow the Court to award points for acceptance of responsibility when he has clearly obstructed justice by his flight and failure to return.

[A. 37]

Without considering other pertinent factors, such as, Mr. xxxxxxxx's early guilty plea, his assistance to authorities, and his withdrawal from criminal conduct, the court denied the acceptance of responsibility reduction for the same reason that it granted the obstruction of justice enhancement -- the flight and failure to return to court. This methodology renders meaningless the amended application note to з 3E1.1 that provides for exceptions to the general rule that obstruction of justice disqualifies a defendant from an acceptance of responsibility adjustment. If, in determining whether a reduction for acceptance of responsibility should apply together with an adjustment for obstruction of justice, the sentencing court only considers the obstructive conduct and not the circumstances surrounding the defendant's acceptance of responsibility, it will be precluded from ever finding that a case is "extraordinary" under the amended guideline. The amendment clearly was intended to give the sentencing judge discretion to weigh all of the relevant factors in determining when a case is sufficiently extraordinary to warrant adjustments for both obstruction of justice and acceptance of responsibility.

By denying Mr. xxxxxxxx a reduction for his acceptance of responsibility based solely upon a consideration of his obstructive conduct, the sentencing court failed to exercise this discretion. For this reason, its denial of the reduction under з 3E1.1 is not entitled to "great deference on review." U.S.S.G. з 3E1.1 comment. (n.5). Because the district court failed to weigh all of the relevant factors in concluding that this was not an extraordinary case warranting adjustments for both obstruction of justice and acceptance of responsibility, its sentence was imposed as a result of an incorrect application of з 3E1.1. Therefore, the case should be remanded for further sentencing proceedings with appropriate instructions. See 18 U.S.C. з 3742(f)(1).

CONCLUSION

For the foregoing reasons, Mr. xxxxxxxx's sentence should be set aside and his case remanded for resentencing.

Respectfully submitted,

A. J. Kramer

FEDERAL PUBLIC DEFENDER

NEIL H. JAFFEE

Assistant Federal Public Defender

Counsel for Appellant

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500

CERTIFICATE OF LENGTH

I hereby certify that the foregoing brief for appellant, Alexander xxxxxxxx, does not exceed the number of words permitted pursuant to D. C. Circuit Rule 28(d).

_____________________________________

NEIL H. JAFFEE

Assistant Federal Public Defender

CERTIFICATE OF SERVICE

I hereby certify that on December 21, 1994, I have served by hand two copies of the foregoing Brief for Appellant Alexander xxxxxxxx and one copy of the accompanying Appendix on John R. Fisher, Chief, Appellate Section, United States Attorney's Office, 555 4th Street, N.W., Washington, D.C. 20001.

___________________________________

NEIL H. JAFFEE

Assistant Federal Public Defender

1. " A." refers to the appendix filed with this brief. "PSR" refers to the presentence report filed under seal with this brief. "Tr." refers to certain portions of the transcript of the proceedings in the district court that are cited in this brief but are not included in the appendix (e.g., "7/24/91 Tr.___").

2. For the Court's convenience, the entire transcript of the presentencing hearing held on February 3, 1994, is set forth in the appendix at A. 10 - A. 39.