                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-29-2006

USA v. Yocum
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4468




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                    No. 05-4468
                                   ____________

                          UNITED STATES OF AMERICA

                                          v.

                               CHELSEA L. YOCUM,

                                         Appellant
                                   ____________

                   On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                               (D.C. No. 01-cr-00072-2)
                   District Judge: Honorable William W. Caldwell
                                    ____________

                     Submitted Under Third Circuit LAR 34.1(a)
                                September 13, 2006

              Before: FUENTES, FISHER and McKAY,* Circuit Judges.

                             (Filed September 29, 2006)
                                   ____________

                             OPINION OF THE COURT
                                  ____________




      *
        The Honorable Monroe G. McKay, United States Circuit Judge for the Tenth
Circuit, sitting by designation.
FISHER, Circuit Judge.

         Appellant Chelsea Yocum appeals from the 138-month term of imprisonment

imposed by the District Court. Yocum contends that although she was convicted of a

drug offense following a trial, the District Court erred in declining to grant a two-level

downward adjustment for acceptance of responsibility because the government refused to

enter with her into a plea agreement to dismiss a related firearms charge. For the reasons

set forth below, we reject Yocum’s argument and will affirm the order of the District

Court.

                                               I.

         As we write solely for the parties, and the facts are known to them, we will discuss

only those facts pertinent to our conclusion. Yocum was charged with three counts

arising out of an alleged drug trafficking conspiracy: conspiracy to distribute and

possession with the intent to distribute 50 grams or more of crack cocaine (count I);

distribution and possession with the intent to distribute 50 grams or more of crack cocaine

(count II); and possession of a firearm in furtherance of a drug trafficking offense (count

VI). Yocum entered a plea of not guilty to the charges and proceeded to trial. During the

trial, the District Court granted the government’s motion to dismiss count I of the

indictment. At the conclusion of the case, the jury convicted Yocum on count II and

acquitted her on count VI.




                                               2
         Prior to Yocum’s initial sentencing hearing, she objected to the failure of the

presentence investigation report to recommend a two-level reduction in her guidelines

offense level for acceptance or responsibility pursuant to Section 3E1.1(a) of the United

States Sentencing Guidelines. At the hearing, her attorney argued that she was entitled to

the reduction because Yocum had never disputed at trial that she had sold drugs.

According to Yocum’s counsel, she went to trial only because the government refused to

allow her to plead to the drug offense at count II in exchange for dismissing the gun

offense at count VI – the charge on which she was eventually acquitted. (App. 36-37,

84.) In essence, Yocum claimed that she had “nothing to lose” by going to trial because

the government would not accept a reasonable plea agreement. (App. 84.)

         The District Court rejected Yocum’s argument and declined to find that she had

accepted responsibility. The District Court sentenced Yocum to 150 months’

imprisonment, a fine of $2000, and a $100 special assessment.1 On appeal, we affirmed

Yocum’s conviction, but vacated and remanded her sentence pursuant to United States v.

Booker, 543 U.S. 220 (2005). See United States v. Yocum, 127 Fed. Appx. 590 (3d Cir.

2005).


         1
        The District Court fixed Yocum’s range of imprisonment at 135 to 168 months, a
finding which has not been disputed on appeal. (App. 51.) In fixing this range, the court
declined to impose a two-level enhancement under Section 2D1.1(b)(1) of the Guidelines
for an offense involving a firearm, and/or a four-level enhancement under Section
3B1.1(a) for being an organizer of a criminal enterprise. (App. 50.) Yocum’s conviction
at count II carries a minimum term of imprisonment of 120 months. See 21 U.S.C.
§ 841(b)(1)(A)(iii).

                                               3
       Yocum renewed her argument for a reduction in her offense level at her

resentencing hearing. Her attorney referenced “the extraordinary change” that had

occurred in his client since her last hearing, and he requested the court to “drop her down

a level or two for accepting responsibility for what she did and those efforts that she

made.” (App. 60.) Yocum addressed the court, stating that she “realized[d] everything

I’ve done now” and that she “accept[ed] everything.” (Id.) The District Court thereafter

decided to sentence Yocum to 138 months’ imprisonment, a 12-month decrease from the

initial sentence that was imposed. In reaching this sentence, the court told Yocum that he

wanted

       to recognize . . . the efforts that you’ve made since you’ve been in jail. I
       don’t know if they’re sincere, if they’re going to be lasting or not. But I’m
       going to make a slight adjustment in the sentence based on those
       submissions.

(App. 72-73.)

                                             II.

       Yocum appeals from her sentence on the ground that the District Court clearly

erred in failing to grant the two-level reduction in her offense level for acceptance of

responsibility.2 Although the commentary to Section 3E1.1 and our caselaw recognize


       2
         We have appellate jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.
§ 1291. We apply a clearly erroneous standard of review to the District Court’s decision
that Yocum did not accept responsibility and was not entitled to a reduction in her offense
level. United States v. Rodriguez, 975 F.2d 999, 1008 (3d Cir. 1992). This standard of
review remains appropriate in the post-Booker world of “reasonableness” review, as we
are still required to determine initially whether the District Court properly calculated the

                                              4
that the adjustment may be applicable in “rare situations” when a defendant proceeds to

trial, the adjustment is generally not warranted if a defendant “puts the government to its

burden of proof at trial.” United States v. DeLeon-Rodriguez, 70 F.3d 764, 767 (3d Cir.

1995) (finding that adjustment not warranted where the defendant “contested his guilt . . .

beyond a mere legal challenge”); see United States v. Thomas, 315 F.3d 190, 205-06 (3d

Cir. 2002); United States v. Boone, 279 F.3d 163, 193-94 (3d Cir. 2001); see also U.S.

Sentencing Guidelines Manual § 3E1.1 cmt. n.2 (stating that “the adjustment is not

intended to apply to a defendant who puts the government to its burden of proof at trial by

denying the essential elements of guilt, is convicted, and only then admits guilt and

expresses remorse”).

       This case is not one of those “rare situations” in which a post-conviction

adjustment for acceptance of responsibility is appropriate. Here, the record does not

reflect that Yocum made any pretrial proffer of guilt to the government. With respect to

count II, she contested the government’s proof at trial, cross-examined the government’s

witnesses, and argued in her summation that she was not guilty of the offense. In



applicable guidelines range under 18 U.S.C. § 3553(a)(4). See United States v. Vampire
Nation, 451 F.3d 189, 196 (3d Cir. 2006). Yocum does not argue that the sentence
imposed by the District Court was unreasonable. She appeals solely from the District
Court’s failure to grant a two-level reduction in her offense level for acceptance of
responsibility. However, to the extent that Yocum argues that the District Court should
have exercised its discretion to grant her a greater downward departure, we agree with the
government that we lack jurisdiction over the District Court’s exercise of that discretion.
U.S. v. Cooper, 437 F.3d 324, 332-33 (3d Cir. 2006); U.S. v. Denardi, 892 F.2d 269,
271-72 (3d Cir. 1989).

                                             5
addition, she brought an appeal to this court in which she attacked the sufficiency of the

government’s evidence at count II. See Yocum, 127 Fed. Appx. at 591 (stating that

Yocum argued that there “was insufficient evidence to establish that she possessed 22.5

grams of crack cocaine found in the hotel room where she was arrested”).

       Yocum’s “acceptance of responsibility” in this case refers to the remorse that she

felt after her trial and conviction, rather than her acceptance prior to going to trial. Both

she and her counsel noted her rehabilitative efforts at her resentencing hearing and urged

the District Court to reduce her sentence on that basis. That after-the-fact remorse was

rewarded by the District Court, which generously reduced her term of imprisonment by

one year when she was resentenced in accordance with Booker.

       Although Yocum’s post hoc acceptance of responsibility is commendable, a

defendant’s realization that what she did was wrong does not provide a legal basis for a

reduction in her offense level under Section 3E1.1 of the Guidelines. Accordingly, we

will affirm the sentence imposed by the District Court.




                                              6
