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May 26, 2012

Should pre-sentencing jail misconduct result in denial of acceptance of responsibility reduction?

The question in the title of this post is prompted by this intriguing little federal sentencing story headlined "Maine man in prison longer for refusing black cellmate: Man refused to share a cell with a black man and flooded his cell while being held on federal drug and gun charges."  Here are the specifics:

A Bath man who refused to share a cell with a black man and flooded his cell at the Cumberland County Jail while being held on federal drug and gun charges was sentenced Thursday to nearly 11 years in prison.

John Byrd III, 23, pleaded guilty in February to conspiracy to possess with intent to distribute a controlled substance, use of a firearm during a drug trafficking crime and possession of a firearm by an individual subject to a protection order.

Because of Byrd's repeated violation of the jail's rules, U.S. District Judge George Singal did not impose the standard lesser sentence that applies when a defendant pleads guilty, Assistant U.S. Attorney Craig Wolff said Thursday.  Under the federal sentencing guidelines, Byrd would have faced two to 3 and 1/2 fewer years behind bars if the judge had not denied the defendant's acceptance of responsibility.

Wolff recommended that Singal deny Byrd the lesser sentence that is imposed in a majority of federal cases in which a defendant pleads guilty.  Attached to his sentencing memorandum, the federal prosecutor filed 20 pages of documents that outlined Byrd's refusals to cooperate with jail personnel.  The end result was that Byrd was moved from the medium to the maximum security section of the jail.

Byrd faced up to 10 years on the conspiracy and gun possession charges.  The using a firearm during a drug trafficking crime count carried a mandatory consecutive minimum of seven years to a maximum of life in prison.   Singal sentenced Byrd to three years and 10 months in prison on the drug charge and an additional seven years on the gun charge as it related to the drug conspiracy.

I am not troubled by the notion that post-plea, pre-sentencing misconduct in jail could justify imposing a longer federal sentence under the terms of 3553(a).  (Indeed, as one who has long thought that good post-plea, pre-sentencing good conduct should get some credit at sentencing under 3553(a), I bring the same philosophy to bear concerning the consideration of bad pre-sentencing conduct.)  But I find somewhat curious the notion that the right way to punish a defendant for this jail misconduct is through the denial of a downward guideline adjustment for accepting responsibility on the underlying offense.

May 26, 2012 at 10:33 AM | Permalink


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if you can't get 3.5 years for acting up in jail, why should it be any different if you happen to do it in the window between plea and sentencing? 3.5 years is a long time. jails have their own internal mechanisms to punish and deter bad behavior. good behavior credits can be revoked.

taking away someone's right to a reduction for a guilty plea is dishonest and will only result in fewer guilty pleas. if it is allowed to stand in this case, how many other cases and situations could the reduction be on the chopping block for? this should get overturned on appeal. judges need to follow the law, and not make things up as they go along. if the law does not provide for any sentencing enhancement for bad jail behavior, then the legislature can change the guidelines, or the courts can accept that jail behavior is a jail issue and not a sentencing issue unless it rises to the level of new crimes.

Posted by: lawguy | May 26, 2012 11:26:08 AM

Pre-sentencing behavior goes to risk, which is a changeable provocation. If the sentencing system were indeterminate, then this behavior should be considered. It tells us something about the probability that he will reoffend in the near future, but little about the long term. But here the system was determinate; it should not be considered.

Pre-sentencing conduct has nothing to do with the acceptance of responsibility for committing a criminal offense, which is a response to an absolute provocation.

This case illustrates why the system should distinguish between the kinds of provocations that are at issue, absolute or changeable.

Posted by: Tom McGee | May 26, 2012 3:20:39 PM

The judge clearly analyzed this misbehavior under the wrong rubric -- as Doug says, it relates to the statutory sentencing considerations, not the acceptance of responsibility guideline.

That said, it doesn't seem like a bad decision.

Lawguy needs to remember what the criminal defense bar constantly stresses: Anything (whether accounted for in the guidelines or not) can be a basis for changing the defendant's sentence under the 3553 factors. When a defendant has been behaving well on pretrial release or in prison, his lawyer will always bring it up as a reason for a lower sentence. (Any criminal law practitioner or judge is familiar with the practice of filing GED records, HVAC certificates, cellmate letters, etc. for sentencing -- all to show how well the criminal behaves in prison, in order to show his reformed character, his likelihood to not reoffend, etc etc.) If good behavior before sentencing is relevant to requests for a lower sentence, then bad behavior is relevant to requests for a higher sentence.

Posted by: Turnabout | May 26, 2012 4:38:25 PM

"Should pre-sentencing jail misconduct result in denial of acceptance of responsibility reduction?"

It should inform the decision whether to deny an acceptance reduction to the extent it shows that the defendant has not actually changed the way he thinks about his behavior. Otherwise, it is irrelevant for that particular purpose, as Turnabout explains.

The question, after all, is not simply whether the defendant has entered a guilty plea. Almost all of them do, since they're dead-to-rights on the evidence and they know it. Thus, while as an operational matter, the entry of such a plea is usually considered the sine qua non of getting the acceptance benefit, the central question remains: Has the defendant come to view his relationship to legitimate authority in a way better than when he committed his crime? The law should not, and does not, limit the court's access to evidence on that question.

Posted by: Bill Otis | May 26, 2012 5:43:48 PM

The sole purpose served by punishing a defendant more harshly for non-criminal pre-sentencing jail conduct is to make the lives of corrections personnel a little bit easier for a small window of time. When someone pleads guilty, they detrimentally rely on the fact that they will be entitled to a downward adjustment for doing so. Taking that downward adjustment away amounts to a bait-and-switch.

The sentencing should be reversed, and remanded with instructions to apply the downward adjustment, and re-sentence him. The whole point of due process is that you follow the rules, you don't say "well, the judge did something wrong, but I agree with the result". Bad facts make for bad law. A person should not receive a 50% increase in his sentence because facts unrelated to the conviction show that he is a racist.

And no, turnabout, there is a double standard in criminal sentencing for a reason: the judge is supposed to listen to a very broad range of reasons for mitigation, but should be limited in what he can consider for aggravation. The reason for this is that a higher sentence is a deprivation of liberty and due process must be ensured. In my experience, even though defense attorneys go on and on about all sorts of personal character stuff, that this ends up having a very limited impact of the ultimate sentence. Defense attorneys are just trying to do their jobs. A judge has a range he can sentence in, and if the judge wants to sentence in the high part of that range, it is very, very difficult for that to be reversed on appeal.

There is a chance that this judge would, on remand, choose a difference sentence. I think the defendant is entitled to that chance, and I think that taking away what amounts to the primary inducement to plea guilty sets a very dangerous precedent. It was foolish, selfish, and short sighted for the prosecution to make that argument.

Posted by: lawguy | May 27, 2012 2:00:06 AM

I think a case like this, where you have an unsympathetic racist with the law on his side, really shows the differences between people who actually care about the law and following it, versus people who think "as long as I feel comfortable with the result I don't care how they got there" crowd.

Trying to play games to punish people you don't like more harshly is very dangerous. It completely undermines the legitimacy and neutrality of the system. If you say "well, Im ok with punishing someone 50% more if they are racist" why can't someone else say "well, Im ok with punishing blacks 50% more because *I* am racist". That is what happens when you let personal bias enter into it: you aren't going to agree with all of the biases. Of course this is compounded when you have a dishonest means of reaching your result.

Posted by: lawguy | May 27, 2012 2:11:12 AM

The Guidelines can be written to say whatever the Sentencing Commission wants, but if we're going to be intellectually honest about the concept of a reduction for accepting responsibility for a specific offense, including relevant conduct, then post-conviction behavior should not affect the 3E1.1 calculus unless it relates to the offense of conviction. Certainly the judge is entitled to take into consideration any information relevant to the 3553(a) factors, but it's inappropriate to include it under the rubric of "acceptance of responsibility." Certainly, if the new offense is relevant to the charged offense--e.g., retaliating against witnesses, concealing relevant conduct, committing the same type of offense--then it would be appropriate to deny acceptance.

Even when we award the reduction for acceptance of responsibility, we don't require defendants to admit to and accept responsibility for all their criminal behavior, just the offense to which they plead guilty.

I find that I have to fight this fight with the Probation Office constantly, and more often than not, judges tend to sustain my objections. They generally feel that unrelated behavior is not relevant to the decision whether to award a reduction under 3E1.1. As pointed out already, if someone commits a new, unrelated crime, then they can be charged and punished for it.

I think it's especially dicey to deny the 3E1.1 reduction for behavior that occurs in jail. In my experience, it's next to impossible to determine real culpability. Jailors are not trained to conduct thorough and unbiased investigations, and I place little faith in their conclusions about what actually happened in an incident.

Posted by: C.E. | May 27, 2012 2:21:31 AM

C.E. --

Would you say, then, that the defendant's post-capture good behavior, inside prison or outside, but unrelated to the offense of conviction, also may not be considered by the court in deciding whether to give an AOR benefit?

I take it that you would, but I wanted to ask rather than assume.

Posted by: Bill Otis | May 27, 2012 8:40:07 AM

After Booker, especially, a judge can rely on pretty much anything that reasonably fits within the 3553(a) factors when sentencing a defendant, notwithstanding the Guidelines. I was talking only about the term of art "acceptance of responsibility" under USSG 3E1.1, which I believe should be limited to conduct related to the offense(s) of conviction. So, I doubt that one could cancel out, say, denial of guilt with some unrelated, post-conviction good acts, and try to justify a 2- or 3-level reduction for "acceptance of responsibility." But a judge could always apply a variance, upward or downward, for any reasonable cause.

I realize that 3E1.1 contains language about "withdrawal from criminal activity" (I'm too lazy to look up the actual wording), but I would still argue that it should refer to the criminal activity that actually led to the conviction. But judges do have the authority to consider post-conviction behavior as part of the "history and characteristics" of the defendant as well as addressing the potential for recidivism, notwithstanding the guideline application.

I expect most non-lawyers would view this as pettifoggery, but whether "acceptance of responsibility" is granted or denied, as opposed to simply applying a variance or departure, could have real-life consequences. For one thing, an appeal court could find a sentence unreasonable if the acceptance adjustment is improperly withheld; also, it could have consequences in the case of a guideline that is later amended, where the amendment is applied retroactively, e.g., the crack guidelines.

Posted by: C.E. | May 27, 2012 3:18:14 PM

In Michigan, Offense Variable 19 scores points for "threasts to security, or interference with the administration of justice." Misbehavior in jail before sentencing can result in points being scored for this variable, and a longer minimum imposed as a result.

Posted by: Greg Jones | May 29, 2012 10:59:37 AM

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