NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 5, 2010
Decided November 23, 2010
Before
WILLIAM J. BAUER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 10‐1087
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 09‐CR‐20019
KIMOTHY D. OWENS, Michael P. McCuskey,
Defendant‐Appellant. Chief Judge.
O R D E R
Kimothy Owens pleaded guilty to one count of possessing crack cocaine with intent
to distribute, 21 U.S.C § 841(a)(1), and one count of possessing a firearm after a felony
conviction, 18 U.S.C § 922(g)(1). The district court sentenced him to 140 months in prison,
the low end of the guidelines range. On appeal Owens argues that the district court
misapplied U.S.S.G. § 3E1.1 in denying him a 2‐level reduction for acceptance of
responsibility. We affirm the judgment.
Owens pleaded guilty just before opening statements were to begin. By then the
government had assembled its witnesses and the district court had conducted a suppression
hearing, ruled on Owens’s motion in limine, and presided over jury selection. Two months
No. 10‐1087 Page 2
later, after reviewing the presentence investigation report, Owens sent a pro se letter to the
district court complaining about his lawyer and objecting to portions of that report. He also
told the court that he wanted to withdraw his guilty plea to the gun charge. The district
court construed the letter as a motion by Owens to withdraw his guilty pleas to both
charges. At a hearing on the motion, Owens expressed confusion about the consequences of
his pleas and denied that he was guilty of the gun violation. The district court denied the
motion after concluding that Owens had been warned adequately about the consequences
of pleading guilty.
The probation officer calculated a total offense level of 28 in the presentence report,
which excluded any reduction for acceptance of responsibility. At sentencing Owens
objected to this omission, but he withdrew all of his many other objections to the
presentence report. Defense counsel conceded that “in the classic sense” there was “no
way” that Owens could expect a discount for acceptance of responsibility, and yet, counsel
asserted, the reduction was warranted because Owens had saved the district court “a day
and half of testimony” by pleading guilty and also averted a long sentencing hearing by
abandoning his remaining objections to the presentence report. The district court rejected
this argument, reasoning that pleading guilty does not show acceptance of responsibility if
the plea comes too late to save resources from being wasted. And by waiting until opening
statements were about to begin, the court continued, Owens had wasted not only the court’s
time and the government’s time but he had also inconvenienced the witnesses and members
of the venire.
Section 3E1.1 provides for a 2‐level decrease “[i]f the defendant clearly demonstrates
acceptance of responsibility.” U.S.S.G. § 3E1.1(a). The guideline also allows for an
additional 1‐level decrease “upon motion of the government stating that the defendant has
assisted authorities in the investigation or prosecution of his own misconduct by timely
notifying authorities of his intention to enter a plea of guilty, thereby permitting the
government to avoid preparing for trial and permitting the government and the court to
allocate their resources efficiently.” Id. § 3E1.1(b). On appeal Owens contends that the
district court conflated these subsections and erroneously denied him a reduction under
subsection (a) because of the timing of his guilty pleas, which he says is a relevant factor
only under subsection (b). Owens also argues that he accepted responsibility for the drug
count, if not the gun count, and that his contrition as to the one crime was enough to have
earned him the § 3E1.1 reduction. Whether a defendant accepted responsibility is a
question of fact reviewed for clear error, but arguments about the proper interpretation of
the guideline are reviewed de novo. United States v. Hollis,
230 F.3d 955, 958 (7th Cir. 2000).
In his appellate brief, Owens is vague about what he thinks the district court did
wrong in applying § 3E1.1. When pressed to explain at oral argument, Owens’s lawyer
No. 10‐1087 Page 3
principally contended that the court wrongly included the timeliness of a guilty plea as a
relevant consideration under subsection (a) of § 3E1.1. Owens assumes that the timing of a
guilty plea is relevant in assessing eligibility for the additional 1‐level decrease in § 3E1.1(b)
but is not pertinent to the inquiry under § 3E1.1(a). And since the district court cited the
lateness of his guilty pleas as a reason for denying the 2‐level decrease under subsection (a),
Owens insists that the court improperly conflated subsections (a) and (b).
We reject this reasoning. Timing is an appropriate consideration under both
subsections. The commentary to § 3E1.1 identifies “the timeliness of the defendant’s
conduct in manifesting” acceptance of responsibility as an “appropriate consideration in
determining qualification for subsection (a).” U.S.S.G. § 3E1.1 cmt. n.1(h). And if that
language was not clear enough, the commentary also identifies the function of both
subsections (a) and (b) and notes that “[t]he timeliness of the defendant’s acceptance of
responsibility is a consideration under both subsections, and is context specific.” Id. § 3E1.1
cmt. n.6. Thus we have confirmed repeatedly—as the district court said in this case—that a
last‐minute guilty plea tends not to demonstrate acceptance of responsibility.
See, e.g., United States v. Boyle,
484 F.3d 943, 945 (7th Cir. 2007) (“[P]leading guilty
eventually, rather than immediately, is specifically listed in the Guidelines as a strike
against acceptance points.”); United States v. Wallace,
280 F.3d 781, 786 (7th Cir. 2002)
(explaining that “eleventh hour” guilty plea does not warrant reduction for acceptance of
responsibility); United States v. Banks‐Giombetti,
245 F.3d 949, 954 (7th Cir. 2001) (explaining
that last‐minute guilty pleas “rarely demonstrate acceptance of responsibility”); United
States v. Sierra,
188 F.3d 798, 804 (7th Cir. 1999) (explaining that last‐minute guilty plea
typically fails to demonstrate acceptance of responsibility and instead “is generally
indicative of a defendant’s desire to escape greater punishment”); United States v. Ewing,
129
F.3d 430, 436 (7th Cir. 1997) (noting that “last minute guilty plea is not usually evidence of a
heart full of remorse”).
Owens nowhere acknowledges either the commentary to § 3E1.1 or any of our
opinions interpreting the guideline. Instead, his argument rests entirely on United States v.
Ortiz‐Torres,
449 F.3d 61 (1st Cir. 2006), and United States v. Chee,
110 F.3d 1489 (9th Cir.
1997). In each case the appellate court evaluated whether the 1‐level decrease under
subsection (b) was warranted for a defendant who already had been given a 2‐level
decrease under subsection (a) despite pleading guilty after jury selection. Ortiz‐Torres,
449
F.3d at 76; Chee,
110 F.3d at 1494. Since in these cases the disagreement between the parties
concerned subsection (b) and not subsection (a), Owens concludes that the First and Ninth
Circuits preclude sentencing courts from considering timing when deciding whether a
defendant’s conduct warrants the 2‐level adjustment under subsection (a). Owens urges us
to align ourselves with that view.
No. 10‐1087 Page 4
We reject the strained reading that Owens gives these decisions. In neither case did
the government file a cross‐appeal challenging the award of the 2‐level reduction under
subsection (a), and so neither decision can be read to reflect a conclusion by the appellate
court that the 2‐level adjustment was appropriate in the first place. We have found no
decision from these circuits or any other court that gives Ortiz‐Torres and Chee the reading
ascribed by Owens, and in fact both the First and the Ninth Circuits accept that timeliness is
a valid consideration in evaluating whether a guilty plea warrants the 2‐level reduction
under subsection (a). See United States v. Walker,
234 F.3d 780, 784 (1st Cir. 2000) (noting that
timeliness is relevant factor in evaluating whether to award 2‐level downward adjustment);
United States v. Flores,
93 F.3d 587, 590 (9th Cir. 1996) (explaining that defendant’s guilty
plea was timely for purpose of the 2‐level reduction because it came early enough to save
the government the expense of preparing for trial); United States v. Nunez‐Rodriguez,
92 F.3d
14, 22 (1st Cir. 1996) (noting that timeliness is relevant factor in evaluating whether to
award 2‐level downward adjustment); United States v. Vance,
62 F.3d 1152, 1157 (9th Cir.
1995) (observing that timeliness of guilty plea “affects both the first two points and the
third”). Like this court, the First and Ninth Circuits adhere to the letter of the commentary
to § 3E1.1.
Owens is also wrong to assert that a defendant can earn a reduction under § 3E1.1 by
accepting responsibility for a slice but not the whole criminal conduct underlying multiple
convictions. Owens reasons that his guilty plea to the drug count (whether timely or not)
was enough to get him a 2‐level reduction for that offense, and his contrition for the drug
crime, he continues, was not undermined by his attempt to withdraw his guilty plea to the
gun count. The two convictions were grouped, he explains, and since the guidelines range
was driven by the drug count, it matters not whether he accepted responsibility for the gun
count.
Owens once more presses a contention without citing a guideline, or an application
note, or a case to support it. His argument that acceptance of responsibility should be
calculated separately for different counts in a group is contrary to the application
instructions in U.S.S.G. § 1B1.9. The guidelines do “not contemplate calculating acceptance
of responsibility for each offense.” United States v. McDowell,
888 F.2d 285, 293 (3d Cir.
1989). For multiple counts, acceptance of responsibility is evaluated only after a combined
offense level has been determined. U.S.S.G. §§ 1B1.1; 3D1.5 cmt.; United States v. Thomas,
242 F.3d 1028, 1034 (11th Cir. 2001); United States v. Ginn,
87 F.3d 367, 370‐71 (9th Cir. 1996);
United States v. Kleinbreil,
966 F.2d 945, 953 (5th Cir. 1992); McDowell,
888 F.2d at 293.
Moreover, it is plain enough that the district court found that Owens had not
accepted responsibility for either count. The court properly interpreted the guidelines, and
we afford great deference to sentencing judges’ determinations of acceptance of
No. 10‐1087 Page 5
responsibility. U.S.S.G. § 3E1.1 cmt. n.5; United States v. Leahy,
464 F.3d 773, 790 (7th Cir.
2006). Nothing in the record indicated the sentencing judge erred in evaluating Owen’s
acceptance of responsibility.
The district court properly interpreted the § 3E1.1, and Owens’s contrary arguments
are without merit. Accordingly, the judgment of the district court is AFFIRMED.
