United States Court of Appeals For the First Circuit

No. 21-1129

UNITED STATES OF AMERICA,

Appellee,

v.

BARRY MCCARTHY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Lance E. Walker, U.S. District Judge]

Before

Thompson, Selya, and Kayatta, Circuit Judges.

Stephen C. Smith and Steve Smith Trial Lawyers on brief for appellant. Donald E. Clark, Acting United States Attorney, Julia M. Lipez and Benjamin Block, Assistant United States Attorneys, on brief for appellee.

April 12, 2022 SELYA, Circuit Judge. This is a rifle-shot appeal. In

it, defendant-appellant Barry McCarthy takes aim at the district

court's refusal to grant him a downward adjustment for acceptance

of responsibility, see USSG §3E1.1, in constructing his guideline

sentencing range (GSR). Concluding, as we do, that the defendant

is firing blanks, we affirm his sentence.

I

We start by rehearsing the relevant facts and travel of

the case. Because the defendant's sentence followed a guilty plea,

we draw the facts from the presentence investigation report (PSI

Report) and the transcript of the disposition hearing. See United

States v. deJesús,

(1st Cir. 2021); United States

v. Dietz,

(1st Cir. 1991).

In November of 2018, a consortium of law enforcement

agencies commenced an investigation into the trafficking of large

quantities of narcotics from New York to Maine. The investigation

uncovered information indicating that persons travelled from New

York to Maine to sell and distribute narcotics out of locations

called "trap houses" (where the drug traffickers often stayed).

Maine residents who made these trap houses available were

compensated with either drugs or cash. At times, these Maine

residents would act as "middlemen," completing hand-to-hand drug

transactions with retail customers.

- 2 - The probe revealed that the defendant (a Maine resident)

had allowed two New Yorkers to use his dwelling as a trap house

from at least February until May of 2019. At that time, a search

warrant for the dwelling and an arrest warrant for the defendant

were issued and executed. The defendant later confessed that an

estimated 100 to 200 grams of cocaine or cocaine base (crack

cocaine), along with other drugs, had been brought to his home

weekly for distribution.

Incident to his arrest, the defendant was charged with

maintaining a drug involved premises. See

(a)(2).

After waiving his right to a preliminary examination, the defendant

was detained at the Somerset County Jail. While detained, he

engaged in misconduct involving prison contraband. In September

of 2019, he was charged with trafficking tobacco in an adult

correctional facility in violation of Maine law. See Me. Rev.

Stat. Ann. tit. 17-a, § 757-A. He later pleaded guilty to that

charge.

In November of 2019 — a few months after he was charged

with trafficking contraband in prison — the defendant waived

indictment on the federal charge and pleaded guilty to maintaining

a drug involved premises. At the district court's direction, the

probation office prepared a PSI Report. The PSI Report — revised

in March of 2020 — recommended a total offense level of 26 and

- 3 - placed the defendant in criminal history category V. These

calculations yielded a GSR of 110 to 137 months.

In setting the total offense level, the probation

officer declined to recommend an offense-level reduction for

acceptance of responsibility. See USSG §3E1.1. Along with the

tobacco trafficking charge, the probation officer concluded that

the defendant's admissions established by a preponderance of the

evidence other offenses like trafficking in prison contraband

generally. See Me. Rev. Stat. Ann. tit. 17-a, § 757. Citing

United States v. Jordan,

(1st Cir. 2008), the probation

officer determined that the defendant's transgressions while

detained evinced a failure to withdraw from criminal conduct and

that the defendant had not clearly demonstrated acceptance of

responsibility with respect to the offense of conviction.

Sentencing was delayed due to the COVID-19 pandemic.

After some time had passed, the defendant agreed to be sentenced

in a video-conference proceeding. As a result, the disposition

hearing was held remotely in January of 2021. No objections were

interposed to the revised PSI Report, and the district court

adopted the report in full (except for a single modification

reflecting that the defendant had pleaded guilty to the tobacco

trafficking charge). The court also accepted the probation

officer's suggested guideline calculations, including the

recommendation that an offense-level reduction for acceptance of

- 4 - responsibility should be withheld. The court explained that its

ruling on that adjustment rested on the grounds adumbrated in the

PSI Report.

The district court then mulled the sentencing factors.

See

(a). Among other things, the court considered

the defendant's significant criminal history and observed that his

"inability or unwillingness to comply with the law . . . ha[d]

merely been unabated for the bulk of [his] life." After evaluating

the factors limned in

(a), the court imposed an

eighty-six-month term of immurement, which reflected a two-level

downward variance for the defendant's agreement to be sentenced

remotely and a further two-level downward departure requested by

the government. The court stated that the defendant did not

deserve any further downward adjustment and added that the sentence

imposed was "untethered" to the guideline range and would have

been the same had any of the objections regarding offense-level

adjustments been decided differently. This timely appeal

followed.

II

The defendant challenges his below-guidelines sentence

on a single ground: the district court's denial of an offense-

level reduction for acceptance of responsibility. We turn directly

to that challenge.

- 5 - The guidelines provide for a two-level reduction "[i]f

the defendant clearly demonstrates acceptance of responsibility

for his offense," USSG §3E1.1(a), and an additional one-level

reduction, on the government's motion, if — among other

requirements — the defendant has "timely notif[ied] authorities of

his intention to enter a plea of guilty," id. §3E1.1(b). The

district court determined that the defendant did not clearly

demonstrate acceptance of responsibility for his offense and,

thus, denied him any credit for acceptance of responsibility.

Our standard of review is familiar. A "sentencing

court's factbound determination that a defendant has not accepted

responsibility" is reviewed only for clear error. Jordan,

; see United States v. McLaughlin,

(1st

Cir. 2004). We will not reverse unless — after a careful review

of all the relevant facts — we are "left with a definite and firm

conviction that a mistake has been committed." Brown v. Plata,

(2011) (quotations omitted); see United States

v. Royer,

(1st Cir. 1990). The sentencing court

is steeped in the nuances of the case, and we accord substantial

deference to its determination that acceptance of responsibility

has not been shown. See USSG §3E1.1, cmt. n.5; see also deJesús,

. Despite this deference, though, questions of law,

including questions involving the interpretation of the sentencing

- 6 - guidelines, engender de novo review.1 See Jordan,

;

McLaughlin,

.

The defendant's chief contention is that his timely pre-

indictment guilty plea and related facts clearly demonstrated his

acceptance of responsibility for the offense of conviction. Given

the weight of that evidence, the defendant suggests, it was clearly

erroneous for the district court to find that his rogueries while

in prison warranted the denial of an acceptance-of-responsibility

adjustment. Although the defendant insists that his claim of error

challenges only the supportability of the district court's

factfinding, his arguments implicate questions of law. Thus, we

address those questions before addressing his core claim.

A

Notwithstanding the purely advisory status of the

sentencing guidelines, "the baseline rule is that, in calculating

a defendant's GSR, courts ordinarily should interpret and apply

the guidelines as written, looking both to the guideline

provision . . . and its associated commentary." deJesús, 6 F.4th

1A different standard obtains when a claim of error is raised for the first time on appeal. See United States v. Duarte,

(1st Cir. 2001). The parties quarrel over whether the defendant preserved his challenge to the district court's decision to deny a downward adjustment for acceptance of responsibility. We need not resolve this contretemps but, rather, assume — favorably to the defendant — that he has preserved his challenge.

- 7 - at 148 (quotations and alteration omitted). The Sentencing

Commission has provided a non-exhaustive list of factors that a

district court may consider when determining whether a defendant

has accepted responsibility for the offense of conviction. See

USSG §3E1.1, cmt. n.1. As relevant here, that list suggests that

a sentencing court may take into account whether a defendant has

"voluntar[ily] terminat[ed] or withdraw[n] from criminal conduct

or associations" when deciding whether he has accepted

responsibility. Id. cmt. n.1(B); see McLaughlin,

.

Such post-offense conduct bears on the "sincerity of a defendant's

professed acceptance of responsibility." deJesús,

.

The defendant asserts that his misbehavior while in

custody cannot — as a matter of law — outweigh the evidence

undergirding his acceptance of responsibility. In support, he

advances two reasons: the timing of his misbehavior (which

occurred before he waived indictment and entered his guilty plea)

and its triviality (a low-level misdemeanor).

The defendant's assertions rest on dual premises.

First, he argues that for criminal conduct to have purchase in the

acceptance-of-responsibility analysis, it must occur after the

entry of a guilty plea. Second, he presumes that minor offenses

necessarily bear less weight than serious offenses with respect to

the issue of whether a defendant has sincerely accepted

responsibility — so much so that low-level misdemeanors (such as

- 8 - the misdemeanor that he committed) cannot block an acceptance-of-

responsibility reduction. Neither premise withstands scrutiny.

Our precedent squarely forecloses the defendant's

argument regarding the timing of his criminal conduct. We

consistently have rejected the view that only post-plea conduct is

relevant to assessing a defendant's acceptance of responsibility

under section 3E1.1. See, e.g., Jordan,

;

McLaughlin,

; United States v. Carrington,

(1st Cir. 1996). For instance, we have explained that a

"sentencing court may appropriately consider whether [the

defendant] has voluntarily ceased all participation in criminal

activity," and we have found no reason to exempt conduct occurring

before a defendant avows contrition by entering a guilty plea.

McLaughlin,

.

We hasten to add, however, that there are boundaries on

how far back a sentencing court may reach in determining whether

a defendant has accepted responsibility. To put it bluntly, a

sentencing court "cannot go back limitlessly in time in assessing

acceptance of responsibility."

. For this purpose, a

sentencing court should not go back further than "the lodging of

a federal charge" because that is when a "defendant has been put

on notice . . . that federal prosecutors have taken an interest in

his conduct."

- 9 - Given that guidepost, we find no clear error in the

district court's consideration of the defendant's in-prison

transgressions. Those transgressions occurred after a formal

criminal complaint had been lodged and during the months before

his guilty plea in November of 2019. Because the defendant waived

his right to prosecution by indictment, he is correct in saying

that the conduct identified by the district court took place before

an indictment was handed down. But he strategically omits that he

was detained on federal charges before his misbehavior occurred,

and that detainer surely put him on notice that federal prosecutors

were interested in his conduct. We conclude, therefore, that the

district court was allowed to consider the defendant's post-arrest

conduct in assessing whether he had accepted responsibility for

the offense of conviction. The defendant has not shown any error

of law in this regard.

The defendant's second premise fares no better. We

discern no basis for a categorical rule that post-arrest conduct

amounting to no more than a low-level misdemeanor — as opposed to

more serious conduct — is necessarily less probative of the

authenticity of a defendant's acceptance of responsibility. In

point of fact, application note 1(B) makes pellucid that any

continued criminal conduct may be relevant for this purpose. That

note "extends to all criminal conduct," without any reference

either to the severity of the conduct or to its classification as

- 10 - a felony or a misdemeanor. Jordan,

; see USSG

§3E1.1, cmt. n.1(B).

Our case law confirms that criminal conduct, regardless

of its classification as a felony or a misdemeanor, may shed light

on a defendant's lack of contrition and, therefore, on his

acceptance of responsibility. We have, for example, reasoned that

post-offense conduct may be highly relevant to whether a defendant

sincerely accepted responsibility for his crime if it involves a

"high degree of insensitivity to the root causes" of the

defendant's original offense. United States v. Saxena,

(1st Cir. 2000); see Jordan,

(reasoning that

decision to drink and drive while on bail "ha[d] even more bite"

as predicate for finding lack of authentic remorse because the

defendant had "blamed his involvement" in the underlying offense

"on an escalating addiction to alcohol and drugs"). Such

insensitivity may inhere in misdemeanors as well as in felonies.

So, too, we have considered persuasive a district court's

explanation that criminal conduct "signified a lack of remorse,"

because it reflected a "breach of trust," and was "deliberate,

planned," and "required forethought." deJesús,

(quotations omitted).

These characteristics may be present in a kaleidoscopic

array of crimes, major or minor. Accordingly, we hold that the

weight accorded by a sentencing court to criminal conduct in an

- 11 - acceptance-of-responsibility analysis is not determined by the

classification of the crime but, rather, depends upon the nature

and extent of the misconduct. The defendant has not shown any

error of law in this regard.

That ends this aspect of the matter. We conclude that

a sentencing court may find — in its discretion — that criminal

conduct sheds (or does not shed) light on the authenticity of a

defendant's acceptance of responsibility regardless of whether

that conduct is classified as a felony or as a misdemeanor.

Typically, any post-offense criminal conduct may be considered as

long as it occurs after a defendant can be said to be on notice

that federal prosecutors have demonstrated an interest in his

conduct (say, by charging him). And there is no hard-and-fast

rule that criminal conduct necessarily bears less on a defendant's

claim of remorse if that conduct comprises a low-level misdemeanor

rather than a more serious crime.

B

This brings us to the defendant's remaining challenge.

He posits that the district court, when performing the acceptance-

of-responsibility analysis, clearly erred in balancing the

relevant factors. In his view, the court must have undervalued

the evidence of his acceptance of responsibility, overvalued the

evidence of his post-offense conduct, or both.

- 12 - There was no clear error. It is the defendant's burden

to convince the district court that he deserves a downward

adjustment for acceptance of responsibility. See deJesús,

; McLaughlin,

. The defendant must carry that

burden by a preponderance of the evidence, demonstrating "candor

and authentic remorse" beyond "a pat recital of the vocabulary of

contrition." Royer,

. Whether a defendant has

sincerely accepted responsibility for his crime is a fact-

intensive inquiry that involves the balancing of a variety of

factors. See USSG §3E1.1, cmt. n.1; United States v. Nuñez-

Rodriguez,

(1st Cir. 1996) ("[S]ection 3E1.1

requires the sentencing court to balance many divergent factors,

consistent and inconsistent with acceptance of responsibility."

(emphasis in original)). How the mix of factors is weighed is

uniquely within the discretion of the sentencing court. See

deJesús,

("The weighing of guideline factors is

left principally to the district court's judgment."). After all,

that court has seen and heard the defendant at first hand and

possesses a superior coign of vantage from which to evaluate

whether a defendant has expressed sincere remorse. See USSG

§3E1.1, cmt. n.5.

Though "the guidelines look with favor upon a timely

guilty plea as a plinth for an acceptance-of-responsibility

adjustment," such a plea "does not guarantee receipt of the

- 13 - downward adjustment." deJesús,

. Among other

things, a sentencing court "can weigh in the balance any new

criminal conduct committed" by the defendant after his arrest.

Similarly, the court may consider whether and to what extent

a defendant's cooperation with the government weighs in favor of

finding that the defendant clearly demonstrated his acceptance of

responsibility — but such cooperation does not guarantee that the

defendant will receive the downward adjustment. See Nuñez-

Rodriguez,

(observing that defendant's voluntary

identification of criminal associates will not always be

"reliable" indication of remorse). In the last analysis, the

weighing of all the pertinent factors is "a quintessential judgment

call." Jordan,

. Given the "great deference" due

to the sentencing court in determining the defendant's acceptance

of responsibility, USSG §3E1.1, cmt. n.5, we cannot say, on the

record before us, that the determination of the court below was

clearly erroneous.

To begin, the district court furnished an adequate basis

for its determination. The court adopted the PSI Report in its

entirety, including that report's explanation for denying the

acceptance-of-responsibility adjustment. In relevant part, the

report detailed the defendant's misconduct at the correctional

facility. It described how the defendant possessed contraband

while detained, how he attempted to share that contraband with

- 14 - another inmate, and how he lied when confronted with the evidence

of his malefactions. And the report noted that, based on this

misconduct, the defendant had been charged with a misdemeanor for

trafficking tobacco in an adult correctional facility.

The PSI Report also concluded that the defendant's

admissions supported a finding that he had committed other

misdemeanors as well. Citing Jordan, the report recommended that

the court find that the defendant had not clearly demonstrated his

acceptance of responsibility, given his criminal conduct while in

prison.2 We think that this factual basis for the denial of the

adjustment was adequate. See deJesús,

.

We add, moreover, that the district court's refusal to

grant an acceptance-of-responsibility reduction is consistent with

our precedent. We have, for example, upheld the denial of an

acceptance-of-responsibility adjustment based on attempts to

smuggle drugs into a prison, see United States v. Lagasse,

(1st Cir. 1996); see also United States v. Stebbins,

(1st Cir. 2013), and the use of marijuana in violation

2 The defendant argues that the PSI Report's reliance on Jordan is misplaced, complaining that the post-offense conduct in Jordan was much more severe than his misconduct. Moreover, the defendant in Jordan did not save the government additional expense by waiving indictment. But this plaint sets up a straw man: the PSI Report refers to Jordan only to underpin the general proposition that a district court may consider post-offense criminal conduct in assessing a defendant's acceptance of responsibility. See Jordan,

.

- 15 - of bail conditions, see United States v. O'Neil,

(1st Cir. 1991). In each of these cases — even though the

conduct may not have "compel[led] the denial of credit for

acceptance of responsibility" — a court could reasonably conclude

that the conduct was "inconsistent with [the defendant's] claimed

remorse." Lagasse,

. So it is here: the district

court supportably found that the defendant had not ceased all

criminal activity, which bespoke an insincere acceptance of

responsibility despite his guilty plea and other laudable conduct.

See deJesús,

; Jordan,

("Criminal

conduct, whatever its nature, is a powerful indicium of a lack of

contrition.").

If more were needed — and we doubt that it is — the

defendant's post-offense conduct, as described in the PSI Report,

was particularly revealing on the issue of insincerity. Not only

did the conduct involve dissembling when confronted with evidence

of wrongdoing, but it also followed a lengthy criminal past. That

criminal history, in the court's estimation, bore witness to the

defendant's unwillingness or inability to comply with the law.

Viewed through this prism, the district court could reasonably

conclude — as it did — that the post-offense conduct showed that

the defendant's willingness to plead guilty was not motivated by

remorse or contrition.

- 16 - The defendant resists this conclusion. He predicts that

if the district court's ruling is affirmed, we will have sanctioned

a per se rule that any post-arrest criminal conduct forecloses an

offense-level reduction for acceptance of responsibility. This is

evident, he says, because "it is hard to comprehend under what

factual scenario a defendant would be entitled to a reduction for

acceptance of responsibility if he committed any crime after being

charged." Such a per se rule would, he warns, undermine the

purpose of section 3E1.1 and discourage individuals from pleading

guilty.

We think this warning overblown. The district court's

determination does not mean that post-offense criminal conduct

necessarily precludes an acceptance-of-responsibility adjustment

in every case. The court's decision reflects only that in the

defendant's case, his particular transgressions in prison

outweighed his claim (which the court apparently found insincere)

that he had clearly demonstrated his acceptance of responsibility

for the offense of conviction. The court did not indicate that it

was announcing a per se rule, and we specifically hold that no

such rule obtains.

We need go no further. We hold that the district court's

decision to deny the acceptance-of-responsibility adjustment was

- 17 - not clearly erroneous.3 See Jordan,

; see also

Carrington,

. Consequently, that decision must

stand.

III

For the reasons elucidated above, the challenged

sentence is

Affirmed.

3 The government argues that even if the district court clearly erred, any such error would be harmless given that the sentencing court made clear that it would have imposed the same sentence, "untethered" to the guidelines, and without regard to its ruling on acceptance of responsibility. Because we find that the district court did not clearly err, we need not address this argument.

- 18 -