Lawrence E. Lupien v. Harold W. Clarke

1The Honorable Susan Webber Wright, Chief Judge, United States District
Court for the Eastern District of Arkansas.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-2751
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
William Henry Malone, Jr., * [Unpublished]
*
Appellant. *
___________
Submitted: February 25, 2005
Filed: March 2, 2005
___________
Before WOLLMAN, MURPHY, and BENTON, Circuit Judges.
___________
PER CURIAM.
William Henry Malone appeals the sentence the district court1 imposed after
he pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). Malone argues the district court erred in not granting an acceptance-of-
responsibility reduction because (1) evidence of his acceptance of responsibility was
not overcome merely by the timing of his guilty plea, and (2) whether he had accepted
responsibility should have been submitted to a jury.

-- 1 of 2 --

-2-
We conclude Malone’s arguments have no merit. First, the district court, in
denying the acceptance-of-responsibility reduction, did not increase Malone’s
sentence beyond the presumptive Sentencing Guidelines imprisonment range--it
merely denied him a potential sentencing decrease. Thus, no Sixth Amendment
concerns are implicated. Cf. United States v. Booker, 125 S. Ct. 738, 756 (2005)
(facts that increase defendant’s sentence beyond maximum authorized by those facts
established by guilty plea or verdict, must be either admitted by defendant or
submitted to jury); United States v. McQuay, 7 F.3d 800, 802-03 (8th Cir. 1993)
(requiring defendant to incriminate self to obtain benefit of acceptance-of-
responsibility reduction does not punish him for exercise of Fifth Amendment right).
Second, the district court did not clearly err in denying the acceptance-of-
responsibility reduction, see United States v. Watson, 390 F.3d 577, 579 (8th Cir.
2004) (per curiam) (standard of review), because the timeliness of Malone’s
acceptance of responsibility--as demonstrated by his last-minute decision to plead
guilty--was a factor that the court could properly consider, see U.S.S.G. § 3E1.1,
comment. (n.1(h)).
Finally, reviewing Malone’s sentence in accordance with Booker, 125 S. Ct.
at 764-67, we find that it is reasonable. Accordingly, we affirm.
______________________________

-- 2 of 2 --