Appeal from the United States District Court for the District of Columbia (No. 95cr00039-02)
Before: Wald, Williams and Tatel, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Opinion for the Court filed by Circuit Judge Williams.
Defendant raises the question whether the federal Sentencing Guidelines require a court to deny a defendant a sentence reduction for "acceptance of responsibility" when the defendant-while pleading guilty-lies about "relevant conduct." While we doubt that the guidelines create such an absolute bar to the reduction, ultimately we need not resolve the issue. The defendant's failure to preserve an objection at the time he was sentenced limits our review to plain error, which defendant has not shown.
Defendant Alfonzo Forte escaped from the District of Columbia jail on January 19, 1995 by more or less walking out of it. He was caught three days later and ultimately pled guilty to escape and conspiracy. 18 U.S.C. Section(s) 751, 371 (1994). His coconspirator was his wife and codefendant, Janice Forte, who worked at the jail as a correctional officer under the name Janice Hubbard and was on duty when Forte escaped.
At his plea hearing, Forte claimed that his wife had simply been waiting outside in a car to drive him away. His only help in getting to the car, he said, had come from his prisoner ID badge from another prison facility, which he had flashed authoritatively to a series of slow-witted guards. The government disputed Forte's account, assigning Janice Forte a more central role in the escape. The court accepted his guilty plea, as both accounts contained facts sufficient to establish his guilt.
At sentencing Forte sought a two-level reduction in his base offense level under the Sentencing Guidelines for "acceptance of responsibility" for his crimes. See U.S. Sentencing Guidelines ("U.S.S.G") Section(s) 3E1.1 (1995). The government opposed the request, presenting evidence-not disputed on appeal-supporting its prior contention that Janice Forte had done far more than drive a getaway car: she had escorted the defendant out of the jail herself, after providing him with a set of civilian clothes and a secret place in which to change into them.
The district court found that Forte had lied about the extent of his wife's participation in the escape, and that such participation was conduct relevant to his crimes. Citing this circuit's opinion in United States v. Taylor, 937 F.2d 676 (D.C. Cir. 1991), and the Guidelines themselves, the court appeared to take the view that Forte's lies, rather than being merely a factor to be weighed in determining whether Forte had truly accepted responsibility for his wrongs, absolutely compelled denial of a reduction:
But I do require and the guidelines require and the Taylor case requires a credible and complete explanation for the conduct surrounding the defendant's offense of conviction.
Because of the credible and complete explanation test, the issue for this hearing then became whose version of the escape from the D.C. jail ... would be correct.
Sentencing Hearing at 175. Forte reads this as manifesting a view that Forte's lies were absolutely fatal to his request for an "acceptance of responsibility" reduction. We assume the point in Forte's favor; if that was not the judge's meaning, he sentenced in full ...