No Acceptance Reduction Where Defense Was Lack of Intent to Kill in Murder Trial

U.S. v. Tom ,--- F.3d ----, 2007 WL 2193657 (10th Cir. Aug. 1, 2007)

District court assigned a guideline acceptance reduction to a defendant who was charged with Murder 1 but convicted of Murder 2 after trial. His defense was lack of intent and lack of malice aforethought. The 10th reversed, characterizing Defendant’s trial position as claiming he lacked the general intent to kill. Thus, following long-standing precedent, Defendant did not accept responsibility under the guidelines. Any harmlessness of the error could not be determined on the record because of conflicting statements by the district court as to whether its additional variance reduction was the equivalent of a 6, 7, or 8 level reduction (and thus it was impossible to tell if the 2-level difference would be subsumed within the additional reduction). (Compare this to how certain the Arrevalo majority, below, was about the harmlessness of the district court’s Guidelines' error).

For those interested in post-Rita minutiae, in dicta the 10th cites Rita as determining that “our appellate review of the reasonableness of the sentence imposed merely asks whether the trial court abused its discretion.” It goes on to say that while there is no presumption of unreasonableness of an outside-the-Guidelines sentence, “the extremity of the variance between the actual sentence imposed and the applicable Guidelines range determines the amount of scrutiny we apply in our substantive reasonableness review of such sentences.” SO, so far, the 10th is not abandoning its Cage-type of substantive review of extreme variances.