Conduct After Finding of Guilt Can Negate Acceptance of Responsibility

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair 


A criminal defense attorney can protect his client from actions of the Government within the bounds of the law and ethics, but the attorney can do little to protect the client from himself. As a matter of practice, an attorney will generally caution a client about the need to keep his “nose clean” while incarcerated. A defendant’s jail behavior prior to sentencing is critically important because it can determine the severity of the sentence; and frequently his prison behavior can be a determinative factor in the post-sentencing process as to how long the defendant will spend in prison. Two recent cases out of the federal Second Circuit illustrate this point.


There is little dispute that Robert Chu was a “serious drug dealer” in the New York City area in 2010-2011. He sold powder and crack cocaine, heroin, marijuana, oxycodone, and clonazepam. In fact, he often boasted, as he did to a confidential informant (CI) working for the Drug Enforcement Administration (DEA), that his drug dealing kept him so busy he didn’t have time to package his heroin into “baggies” for his customers. He told the informant he should be considered a “chef” for the high quality way he cooked cocaine into crack cocaine.


The braggadocio would come back to bite Chu. In September 2011 he was arrested for agreeing to sell 20 grams of heroin to the CI. DEA agents nabbed Chu as he was en route to meet the CI. They not only discovered the heroin but a large quantity of drugs in his vehicle as well as an additional stash found during a subsequent search of his residence. In October 2011 he was indicted for conspiring to distribute 100 grams of heroin and 28 grams of crack cocaine. The indictment exposed him to a mandatory five-year minimum sentence. But in March 2012 Chu entered into a plea agreement with the Government: in exchange for a guilty plea, the Government reduced the quantity of heroin and crack cocaine to an amount that did not expose Chu to the mandatory minimum.


Once the agreement was reached, the Court ordered a Presentence Report (PSR) to determine the appropriate sentence to impose under the U.S. Sentencing Guidelines. The PSR, based on those guidelines, recommended a sentence in the range of 87 to 108 months. As in all sentencing cases, a federal judge considers the sentencing guidelines as “advisory” and may depart upward or downward from the sentence recommended by the Guidelines so long as he reasonably explains why he did so. One significant sentencing guideline, § 3E1.1, provides that the judge may reduce a defendant’s overall offense level by two or three levels based on clear acceptance of responsibility for his offense, including pleading guilty to avoid the time and resources required to conduct a criminal trial. This Guideline is known as “acceptance of responsibility.”


At a July 2012 sentencing hearing the judge elected not to reduce Chu’s overall offense level for acceptance of responsibility because of his repeated post-guilty plea attempts to smuggle drugs into the Metropolitan Detention Center where he was housed pending sentencing. On appeal to the Second Circuit Court of Appeals, Chu argued that the judge had erred by not giving him the “acceptance of responsibility” reduction because he had pled guilty in a timely manner and did not deny his criminal conduct. The appeals court rejected this broad interpretation of § 3E1.1 because a defendant is not “entitled” to the reduction as a matter of right under the Guideline. The court pointed out that longstanding federal jurisprudence places the burden on a defendant to demonstrate he qualifies for the reduction. The court rejected Chu’s argument that he was entitled to a § 3E1.1 reduction because his attempts to smuggle drugs into the penal facility were unsuccessful and were the result of drug withdrawal without medication.


The general consensus among the federal circuits is that either pre-sentence or post-sentence misbehavior can influence both the length of sentence and actual sentence service (here, here, and here). Thus, the district court was well within the borders of its discretion to deny Chu an “acceptance of responsibility” reduction.


Benjamin Figueroa learned a lesson similar to Chu’s. In February 2006, Figueroa, pursuant to a plea agreement with the Government, tendered a guilty plea in the Eastern District of New York to conspiring to possess with intent to distribute crack cocaine. As part of the plea agreement, Figueroa pled guilty to only the amount of crack cocaine sold to undercover agents. While the district court was not completely satisfied with this “grossly conservative estimate” of drug possession, the court nonetheless in February 2008 sentenced Figueroa within the sentencing guideline range to 150 months in prison which was “near the top of the Guideline range.”


In December 2011, Figueroa filed a U.S.C. § 3582(c) motion seeking a sentence reduction under the Fair Sentencing Act of 2010—an Act that reduced the base offense levels for crack cocaine offenses to eliminate the disparity of sentencing in crack and powder cocaine cases. The Act was implemented into the Sentencing Guidelines through Amendment 750. The District Court denied Figueroa’s motion, concluding that while he was eligible for a sentence reduction under the Act, any reduction of his sentence would offend U.S.S.G. § 1B1.10 because Figueroa’s “post-conviction conduct indicates that he is still a threat to the community.”


The court based its decision on the fact that while incarcerated Figueroa had received eight disciplinary reports—five of which occurred after he was convicted. These five disciplinary incidents were the most serious—two for possessing a weapon, two for possessing intoxicants, and the last for assaulting another inmate. The Second Circuit upheld the district court’s decision pointing out that even if a defendant is eligible for a § 1B1.10(b)(1) reduction, the court may reduce his sentence under § 3582 only after considering the sentencing factors spelled out in § 3553(a).


Defendants should be made aware of the fact that under § 1B1.10 a court considering re-sentencing may (and usually does) consider “post-sentencing conduct of the defendant that occurred after imposition of the term of imprisonment in determining … whether a reduction in the defendant’s term of imprisonment is warranted …” This position was supported by the U.S. Supreme Court in Dillon v. United States because “conduct’ figures into a § 1B1.10 calculation for re-sentencing.

Pre-arrest conduct determines the nature and extent of criminal charges to be filed against a defendant. Bad pre-sentencing conduct can, and most often does, result in a more severe sentence. And post-sentencing misbehavior can, and will more often than not, determine whether a defendant’s sentence will be reduced under § 3582 when the defendant is eligible for a reduction.


Thus, a defendant’s behavior matters. Good behavior generally results in positive rewards while misbehavior will almost always result in negative consequences. While a criminal defense attorney cannot turn a sinner into a saint, the attorney should take a little time to pass on to his client the “free advice” that behavior does matter.