Acceptance, judge-found facts, and Bradley waivers...all this and a one line concurrence!

In United States v. Larico Smith, -- F.3d --, 2005 Fed.App. 050452p, (6th Cir. Nov. 23, 2005) (No. 04-5669), (opinion available here), a panel of the Sixth Circuit, (Gwin, D.J., (author), Moore, C.J., and Cook, C.J.), rejected the defendant's claim that he was entitled to the full three point reduction for acceptance of responsibility, while at the same time, remanded the case for re-sentencing under Booker because the district court had relied on judicially found facts when it applied a cross-reference.

Mr. Smith was convicted for possession of ammunition and a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the government refused to move for the third point reduction for acceptance of responsibility, primarily because Mr. Smith's plea came a mere two business days prior to trial. The government had already prepared for trial and specifically had secured the attendance of witnesses. Mr. Smith argued that: 1. the court should have granted him the extra point because he timely pled; 2. that the government waived its ability to not move for the reduction because it did not object to the PSR's recommendation that he receive the extra point; and 3. that the government breached an oral agreement during pleanegotiationss that the government would move for the extra point reduction. The district court rejected these arguments and found that Mr. Smith did not warrant the reduction. The panel affirmed, stating that "[g]iven the record before us, we conclude that it would not be improper for the district court to deny the Defendant's motion and grant only a two-level reduction."

The lesson here is to plead early and often if you want to get your third point for acceptance of responsibility...or at least plead earlier than two days before trial.

Additionally, the Sixth Circuit remanded the case for resentencing under Booker. The district court had enhanced Mr. Smith's sentence based on judge found facts that Mr. Smith used the gun in committing another offense, assault with intent to commit murder, and that the victim suffered life-threatening injuries. The Sixth Circuit held that Mr. Smith did not admit these facts either in the plea colloquyy or in the plea agreement. Consequently, the Sixth Circuit found that Mr. Smith's sentence "exceeds the range authorized by his plea agreement and the facts admitted during his plea colloquy" and "constitutes plain error." In making this conclusion, the panel primarily relied on United States v. Oliver, 397 F.3d 369 (6th Cir. 2005), which held that a sentence imposed on the basis of unconstitutional judicial fact-finding constitutes plain error.

Finally, the government argued in a letter brief that Mr. Smith's Booker claim was barred by United States v. Bradley, 400 F.3d 459 (6th Cir. 2005). The panel rejected this argument and distinguished Bradley on two issues. First, Bradley had explicitly waived his appeal. Second, Bradley's plea agreement "included an agreement that vaguely said the obvious: that the sentencing guidelines applied to Bradley's case."

Of interesting note is that two panel members, Judge Karen Nelson-Moore and District Court Judge James S. Gwin, (the author of the opinion), expressed their apparent disagreement with the holding in Bradley. In footnote 5, Judge Gwin wrote: "we note our misgivings regarding any suggestion that, in a pre-Booker plea, a non-specific acknowledgment that the guidelines apply is sufficient to waive Booker challenges." In Judge Deborah Cook's concurrence, she succinctly disagrees with this assertion. She wrote: "I join the majority opinion other than its footnote #5."