Defendant Who Contested Insanity At Trial Not Entitled to Acceptance Adjustment

US v. Herriman, 2014 WL 114515, No. 12-7085 (10th Cir. 1/14/14)(Published). Defendant planted a bomb near a gas pipeline. He later voluntarily turned himself and confessed. He went to trial with the defense of not guilty by reason of insanity. The jury did not agree and convicted him. He asked for acceptance of responsibility at sentencing. The court did not agree and declined the adjustment. The denial of the acceptance adjustment is the sole issue. The Tenth affirms. The court discusses the differences between challenges to the mens rea element of a defense and the presentation of an insanity defense. The first must be proved by the government beyond a reasonable doubt, while the second must be proved by the defendant by clear and convincing evidence. In this case, the parties disputed whether the defendant was insane at the time he planted the bomb. Thus, he contested the factual issue of his sanity at the time he planted the bomb and did not merely go to trial to preserve an issue relating to the elements of his offense (as in US v. Gauvin). Therefore, the defendant was not entitled to the acceptance adjustment. Furthermore, the court's findings were sufficient.