United States Court of Appeals For the First Circuit _____________________

No. 21-1785

UNITED STATES OF AMERICA,

Appellee,

v.

STEFAN R. GAUTHIER,

Defendant, Appellant. _____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge] _____________________

Before

Kayatta and Howard, Circuit Judges, and Walker, District Judge.* _____________________

Donna J. Brown for appellant. Alexander S. Chen, Assistant United States Attorney, with Jane E. Young, United States Attorney, and Seth R. Aframe, Assistant United States Attorney, on brief, for appellee. _____________________

November 18, 2022 _____________________

____________________ * Of the District of Maine, sitting by designation. WALKER, District Judge. After trial in the United States

District Court for the District of New Hampshire, a jury convicted

Stefan R. Gauthier of two counts of possession with intent to

distribute methamphetamine but acquitted him of two related

firearm charges. At sentencing, Gauthier requested credit for

accepting responsibility for the two offenses of conviction

because he had offered to plead guilty to those offenses and,

following the failure of that effort, declined to contest the

offenses at trial. The District Court denied Gauthier’s request,

concluding that Gauthier’s failure to plead guilty to the offenses

of conviction or stipulate to his culpability at trial belied his

claim to have accepted responsibility for the offenses at issue.

We see no error in the District Court’s determination, and affirm

the sentence below.

I.

On November 1, 2018, law enforcement officers observed Stefan

R. Gauthier passed out behind the wheel of a pickup truck in

Tilton, NH. Officers approached Gauthier and, upon discovering

that his license was suspended, searched him. Gauthier was found

to be in possession of 0.659 grams of methamphetamine and $1,375

in cash, and was arrested. In a subsequent search of the pickup

truck, law enforcement identified an additional 356 grams of

methamphetamine, $1,500 in cash, drug paraphernalia including

baggies and a digital scale, and a .22 caliber firearm. One month

- 2 - later, on December 2, 2018, law enforcement discovered Gauthier

passed out behind the wheel of a different vehicle, arrested him,

and found 111.1 grams of methamphetamine in his possession.

Based on this conduct, a grand jury indicted Gauthier on two

counts of possession of methamphetamine with intent to distribute.

The grand jury also indicted Gauthier on one count of being a felon

in possession of a firearm and one count of possessing a firearm

in furtherance of a drug trafficking crime, both stemming from the

presence of the firearm recovered from the vehicle during

Gauthier’s November arrest. Finally, the grand jury indicted

Gauthier on an unrelated charge of unlawfully distributing

fentanyl, based on an informant’s assertion that Gauthier provided

fentanyl that resulted in the fatal overdose of a local man

identified as N.R.

Defense counsel attempted unsuccessfully to negotiate a plea

agreement. Gauthier admitted that he was guilty of the two

methamphetamine charges and indicated his willingness to enter a

guilty plea as to those counts. However, Gauthier refused to plead

guilty on the firearm charges, insisting that the gun belonged to

his girlfriend. Gauthier also maintained that he had not provided

the fentanyl that killed N.R. and declined to plead guilty on that

charge. The record suggests that Gauthier attempted to negotiate

the dismissal of one or both of the firearm charges and the

fentanyl charge in exchange for pleading guilty to the

- 3 - methamphetamine charges. Prosecutors were unwilling to accept

Gauthier’s proposed terms.

On the eve of trial, the government moved to dismiss without

prejudice the fentanyl count against Gauthier. The court granted

the government’s motion.

At trial on the methamphetamine and firearm counts the parties

stipulated as to several factual elements of the offenses,

including stipulating as to the amount, identity, and authenticity

of the methamphetamine found in Gauthier’s possession. Gauthier

did not stipulate that he possessed or that he intended to

distribute the methamphetamine -- necessary elements of the

offenses with which he was charged -- nor did he admit, at any

point during the trial, that he was guilty of any of the counts

before the court. However, Gauthier did not attempt to rebut the

government’s arguments regarding the methamphetamine offenses and

defense counsel instead focused the examination of the

government’s witnesses on issues related to the firearm offenses.

After a brief trial, the jury convicted Gauthier of both counts of

possession of methamphetamine with intent to distribute, but

acquitted him of both firearm counts.

In advance of sentencing, Gauthier raised a number of

objections to the calculation of his offense level reflected in

the presentence investigation report. Specifically, Gauthier

requested a two-level reduction in offense level for acceptance of

- 4 - responsibility, arguing that he was entitled to the reduction in

this instance because he had admitted his guilt to prosecutors,

stipulated to the basic factual elements of the methamphetamine

offenses, and enrolled in drug rehabilitation programs following

his arrests. However, defense counsel admitted to the judge at

sentencing that Gauthier’s decision to proceed to trial on all of

the counts, rather than pleading guilty to the methamphetamine

charges while taking the firearm and fentanyl counts to trial, had

been a “tactical” judgment. Gauthier further objected to the

sentencing report’s inclusion of the fentanyl charge that had been

dismissed and the firearm charges of which he had been acquitted,

charges that the report characterized as relevant conduct for the

purpose of sentencing.

The government, for its part, opposed Gauthier’s objections.

With respect to the acceptance of responsibility credit, the

government argued that Gauthier’s failure to plead guilty to the

methamphetamine offenses precluded the availability of the

sentencing credit. The government also argued that Gauthier’s

denial of responsibility for other relevant conduct --

specifically, the fentanyl charge that was dismissed on the eve of

trial –- would render him ineligible for the acceptance of

responsibility credit even if he had otherwise expressed

contrition with respect to the methamphetamine offenses.

- 5 - Based on this record, the sentencing judge determined that

Gauthier was not entitled to the acceptance of responsibility

credit. The District Court sentenced Gauthier to 180 months

imprisonment, within the Sentencing Guideline range of 168 to 210

months and below the government’s recommendation of 210 months.

Gauthier now appeals his sentence, arguing that the District

Court erred in denying him credit for acceptance of responsibility.

II.

When reviewing a sentence on appeal, “we assay the district

court’s factfinding for clear error and afford de novo

consideration to its interpretation and application of the

sentencing guidelines.” United States v. Flores-Machicote,

(1st Cir. 2013). Because “[t]he sentencing judge is

in a unique position to evaluate a defendant’s acceptance of

responsibility,” U.S.S.G. § 3E1.1 cmt. n.5 (U.S. Sentencing Comm’n

2021), we will set aside the district court’s determination only

if it lacks an “articulable basis or foundation” in the record.

United States v. Bennett,

(1st Cir. 1994).

The Guidelines provide for a two-level decrease in a

defendant’s offense level where “the defendant clearly

demonstrates acceptance of responsibility for his offense.”

U.S.S.G. § 3E1.1(a). “In determining whether a defendant

qualifies” for the sentencing reduction, a sentencing judge makes

a holistic assessment based on a defendant’s post-offense conduct

- 6 - as well as his statements about the crime of conviction and other

relevant conduct. See U.S.S.G. § 3E1.1 cmt. n.1.

A defendant who is convicted at trial after denying “essential

factual elements of guilt” generally is not entitled to the

acceptance of responsibility reduction. U.S.S.G. § 3E1.1 cmt.

n.2. A “conviction by trial . . . does not automatically preclude”

a finding of acceptance of responsibility. Id. But “proceeding

to trial creates a rebuttable presumption” that the defendant has

not accepted responsibility, which the defendant bears the burden

of overcoming. United States v. Garrasteguy,

(1st Cir. 2009). As a result, we generally will “sustain a

district court that denies acceptance of responsibility to a

defendant who declined to plead guilty.” United States v. De Leon

Ruiz,

(1st Cir. 1995).

In “rare situations,” a defendant may be found to have

“clearly demonstrate[ed] an acceptance of responsibility for his

criminal conduct” despite having “exercise[d] his constitutional

right to a trial.” U.S.S.G. § 3E1.1 cmt. n.2. By way of example,

the guideline commentary states that a defendant who goes to trial

to raise “issues that do not relate to factual guilt” -- such as

challenges to the constitutionality or applicability of a statute

-– may be entitled to the acceptance of responsibility credit.

Id. But this is merely an example, see De Leon Ruiz,

, and we have previously recognized that a defendant who fails

- 7 - to acknowledge his factual guilt may be entitled to the acceptance

of responsibility credit “in unusual circumstances.” United

States v. Hines,

(1st Cir. 1999).

Gauthier argues that his attempt to negotiate a guilty plea

and his stipulation as to certain elements of the methamphetamine

offenses present one such unusual circumstance. But our

precedents, and persuasive authority from our sister circuits,

belie that contention. We have never reversed a district court’s

denial of the acceptance of responsibility credit where a defendant

failed to admit factual guilt at or before trial. Cf. United States

v. Ellis,

(1st Cir. 1999) (remanding for

resentencing where the defendant admitted in his opening argument

and during his testimony his role in one crime of which he was

convicted and the district court’s reasoning for denying the credit

at sentencing was unclear).

As for persuasive authority from sister circuits, we have

considered three cases involving remands for resentencing based on

the acceptance of responsibility credit despite the defendants’

failure to admit guilt through a plea or at trial. However, all

three involved factual circumstances dissimilar to our own and in

two the courts also analyzed a prior version of the sentencing

guidelines containing the following provision that has since been

removed: "A defendant may be given consideration under this section

without regard to whether his conviction is based upon a guilty

- 8 - plea or a finding of guilt by the court or jury or the practical

certainty of conviction at trial." U.S.S.G. § 3E1.1(b) (1990,

1991). See United States v. Guerrero-Cortez,

(8th Cir. 1997) (remanding for reevaluation of acceptance credit

where defendant offered to plead guilty to trafficking two

kilograms, the government refused the offer absent a plea involving

five kilograms, and the court ultimately found defendant

responsible for two kilograms)1; United States v. McKinney,

, 851-52 & nn.2-3 (9th Cir. 1994) (relying on prior guidelines

provision and remanding with instruction to award acceptance

credit where defendant tried, both before and after jury selection,

to change his plea to guilty but the court denied him the

opportunity); United States v. Rodriguez,

(3d

Cir. 1992) (relying on prior guidelines provision and remanding

for reevaluation of acceptance credit where the government revoked

two co-defendants’ plea agreements after it failed to reach a plea

agreement with the third co-defendant).2

1 The defendant in Guerrero-Cortez attempted to plead guilty to a drug crime involving a specified lesser quantity (of which he was ultimately convicted), whereas Gauthier attempted to plead guilty to drug crimes (of which he was convicted), but only if the government dismissed the related firearm counts. Unlike the defendant in Guerrero-Cortez, who would have but practically could not have plead guilty to his ultimate crime of conviction, Gauthier could have but chose not to for tactical reasons.

2 Rodriguez also specifically held, in contrast to the facts of the instant case, that the trial court "fail[ed] to consider the - 9 - By contrast, where, as here, a defendant “retain[s] the option

to plead guilty” to one or more charges while contesting others,

and instead chooses “to roll the dice,” a sentencing court acts

within its discretion in finding that the defendant is not entitled

to the acceptance of responsibility credit. De Leon Ruiz,

.

We see ample support in the record for the District Court’s

finding that Gauthier had the opportunity to plead guilty and

accept all of the factual elements of the offenses of conviction

but failed to do so. The District Court noted that Gauthier

stipulated to the amounts and identity of the methamphetamine

seized from his person and did not otherwise contest the

Government’s argument with respect to the methamphetamine charges.

But the District Court reasonably concluded that this only amounted

to a partial acceptance of responsibility, given Gauthier’s

failure to admit to possessing either the methamphetamine or the

intent to distribute it. Furthermore, defense counsel

acknowledged at sentencing that Gauthier could have plead guilty

on the methamphetamine charges while contesting the fentanyl and

firearm charges, and stated that “from a tactical viewpoint

[counsel] felt it was better” for Gauthier to proceed to trial on

all charges. As we have previously made clear, this sort of pre-

reasons for which [the defendants] refused to plead."

. - 10 - trial calculation is strong evidence militating against credit for

acceptance of responsibility. See De Leon Ruiz,

.

Based on this record, it was not error to deny Gauthier the

acceptance of responsibility credit.3

III.

For the foregoing reasons, the District Court’s order

sentencing Gauthier to 180 months in prison is affirmed.

3 To the extent that the Appellant argues that the District Court mistakenly believed that it was precluded from awarding the acceptance of responsibility credit where no guilty plea was entered, we find this argument unpersuasive. In his sentencing brief, as here, Gauthier heavily relied upon the relevant guidelines commentary to establish that “[c]onviction by trial . . . does not automatically preclude a defendant from consideration for [the acceptance] reduction.” U.S.S.G. § 3E1.1 cmt. n.2. At sentencing, the District Court expressly noted that it had read Gauthier's brief, but that it agreed with the government that Gauthier was not entitled to the credit because he did not stipulate to essential elements of the charges against him. We can infer from this record that the District Court understood and applied the correct standard but concluded that Gauthier's conduct did not warrant credit for acceptance of responsibility. See United States v. Jiminez-Beltre,

, 519 (1st Cir. 2006), abrogated on other grounds, Rita v. United States,

(2007) (“[A] court's reasoning can often be inferred by comparing what was argued by the parties or contained in the pre-sentence report with what the judge did.”); see also United States v. DelPiano,

(1st Cir. 2006) (unpublished) (inferring that the sentencing court “rejected [defendant’s] request for an acceptance-of- responsibility reduction for the primary reason argued by the government,” where its denial “was consistent with [those] implicit reasons”). This situation stands in contrast to that in Ellis, in which this court vacated the defendant’s sentence and remanded for resentencing in part because it was “possible” that the district court had misunderstood and incorrectly applied the standard contained in U.S.S.G § 3E1.1. United States v. Ellis,

(1st Cir. 1999). - 11 -