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United States v. Green

United States Court of Appeals, Ninth Circuit

August 21, 2019

United States of America, Plaintiff-Appellee,
Jeffrey R. Green, Defendant-Appellant.

          Argued and Submitted June 12, 2019 Anchorage, Alaska

          Appeal from the United States District Court for the District of Alaska D.C. No. 3:16-cr-00063-SLG-1 Sharon L. Gleason, District Judge, Presiding

          Krista Hart (argued), Sacramento, California, for Defendant-Appellant.

          Jonas M. Walker (argued), Assistant United States Attorney; Brian Schroder, United States Attorney; United States Attorney's Office, Anchorage, Alaska; for Plaintiff-Appellee.

          Before: A. Wallace Tashima, William A. Fletcher, and Marsha S. Berzon, Circuit Judges.


         Criminal Law

         Vacating a sentence and remanding for resentencing, the panel held that the district court erred by concluding that it could not listen to the defendant's allocution before determining whether a reduction of acceptance of responsibility was warranted under the Sentencing Guidelines, and that this misapprehension was plain error that affected the defendant's substantial rights and seriously affected the fairness of the proceedings.



         Must a district court decide on a defendant's eligibility for an acceptance-of-responsibility reduction in his Guidelines level before listening to the defendant's allocution? Our answer is "No."


         On June 3, 2016, a group of police officers went to Jeffrey Green's apartment in Anchorage, Alaska, and arrested Green on an outstanding warrant. While patting him down, an officer found a loaded revolver in Green's pocket. During a later search, the officers found two pistols stored inside a safe in a storage closet accessible from the apartment. Both pistols had been reported stolen.

         The government charged Green, who had a long history of felony convictions, with a single count of possession of a firearm as a felon in violation of 18 U.S.C. § 922(g)(1). Six months later, Green pleaded guilty. During his plea colloquy, Green admitted that he possessed the single revolver found in his pocket during the arrest and that he was a felon. But Green did not admit to all the conduct alleged in the single-count indictment. He made no admissions-or statements of any kind-regarding either of the pistols found in the safe.[1] The district court found that Green's admission regarding the revolver, coupled with his admission regarding his criminal history, provided a sufficient factual basis for the plea under Federal Rule of Criminal Procedure 11(b)(3).

         After Green pleaded guilty, the district court directed the probation department to prepare a presentence report. That report concluded that Green should be assessed an offense level under the Sentencing Guidelines premised on possession of a total of three guns, two of which were stolen. See U.S. Sentencing Guidelines Manual § 2K2.1(b)(1), (b)(4)(A) (U.S. Sentencing Comm'n 2016).[2] The presentence report also concluded that Green was not entitled to any reduction for accepting responsibility because he had not admitted possession of the two pistols found in the safe. See id. § 3E1.1(a). Green objected to each of these conclusions. He primarily argued that the government "ha[d] not proven that the two additional firearms found in the storage closet were in Green's possession."

         Because Green so objected, the court held an evidentiary hearing to determine whether Green possessed those firearms. See id. § 6A1.3 cmt. At this hearing, the government introduced a recording of Green speaking to a woman by phone after he was arrested. Green asked the woman, "Did they get my safe?" The woman replied, "I don't know. There was a locksmith. They had a locksmith come there. Yes. Shane said they got into it." Green then responded: "Oh, my God." Based on this audio and other evidence introduced by the government the district court concluded that the government had shown by a preponderance of the evidence that Green possessed the two pistols, and that he should thus be assessed the offense level for possession of stolen guns and for possession of three or more guns. The court left open whether Green should be awarded a reduction for accepting responsibility pursuant to Sentencing Guidelines section 3E1.1.

         Two weeks later, on November 3, 2017, the district court held a second sentencing hearing. At the outset of this second hearing, the court entertained argument as to whether it should find that Green accepted responsibility under section 3E1.1. During argument, defense counsel told the court that Green "intends to allocute to this Court." Counsel further stated that he thought "the only way [Green will] be able to express [the] contrition [required by section 3E1.1] . . . is in that allocution."

         After hearing counsel's argument but before hearing Green's allocution the court announced its conclusion regarding the acceptance-of-responsibility reduction-that the reduction was not appropriate. The sentencing court explained that it reached this conclusion largely because it viewed this case as analogous to United States v. Ginn, 87 F.3d 367 (9th Cir. 1996), which held that an acceptance-of-responsibility reduction was appropriate only where a defendant charged with multiple counts had accepted responsibility for all of the "counts of which he is convicted." Id. at 370; cf. United States v. Garrido, 596 F.3d 613, 619 (9th Cir. 2010) (holding ...

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