District Court Error in Granting One Level Post-Trial Acceptance Not Harmless

The Tenth Circuit in U.S. v. Lozano addressed whether the district court's error in awarding the defendant a one-level reduction for acceptance of responsibility was harmless given the circumstances. The defendant had gone to trial solely to contest a conspiracy count, expressing a willingness to plead guilty to lesser counts of distribution. After being convicted at trial of the distribution counts and acquitted on the greater conspiracy count, the defendant requested a two-level adjustment for acceptance of responsibility, to which the government objected. The district court split the proverbial baby, granting a one-level reduction instead of the two-level adjustment provided by 3E1.1.

While the government acknowledged the district court's error, it maintained that any error was harmless since the judge would simply impose the same sentence on remand. The government also contended that the post-trial reduction was inappropriate as an adjustment for acceptance of responsibility post-trial is to be used sparingly, and the defendant did not admit factual guilt on the distribution charges.

The Tenth finds that the error was not harmless, remarking that the court sentenced the defendant at the low end of the guideline range and that "hazarding a guess as to what the district court would do upon resentencing absent the erroneous downward adjustment under 3E1.1 'places us in the zone of speculation and conjecture.'"