               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 15a0002n.06

                                         No. 13-6011

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                  FILED
                                                                            Jan 05, 2015
UNITED STATES OF AMERICA,                      )                        DEBORAH S. HUNT, Clerk
                                               )
        Plaintiff-Appellee,                    )         ON APPEAL FROM THE
                                               )         UNITED STATES DISTRICT
v.                                             )         COURT FOR THE EASTERN
                                               )         DISTRICT OF KENTUCKY
JAMES RAYMOND KENNEDY,                         )
                                               )
                                                                 OPINION
        Defendant-Appellant.                   )
                                               )


Before: DAUGHTREY, MOORE, and CLAY, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. James R. Kennedy pleaded guilty to one

count of willfully aiding and abetting in the preparation and filing of false tax returns under

26 U.S.C. § 7206(2) and was sentenced to thirty-six months of imprisonment and one year of

supervised release. He directly appeals his sentence, arguing that the district court erred in

several respects in accepting the Presentence Report’s (“PSR”) calculation of his base offense

level and in denying him an acceptance-of-responsibility reduction.        He also brings an

ineffective-assistance-of-counsel claim. For the reasons set forth in this opinion, we AFFIRM

the sentence of the district court and DECLINE to review at this time Kennedy’s ineffective-

assistance-of-counsel claim.

                               I. FACTS AND PROCEDURE

       Kennedy ran a tax-return-preparation business, J.R. Kennedy and Associates, from 2006

through April 2009. R. 55 (Plea Agreement ¶ 3) (Page ID #197). Based on his prior military
No. 13-6011
United States v. Kennedy


work experience and contacts in the aerospace industry, he held himself out as an expert in

preparing taxes for those connected to the aerospace industry. R. 90 (Sent’g Tr. at 44–45) (Page

ID #868–69). On April 14, 2011, Kennedy was indicted on twenty-three counts of willfully

aiding and abetting in the preparation and filing of false tax returns under 26 U.S.C. § 7206(2).

R. 1 (Indictment ¶¶ 1–5) (Page ID #1–5). After two days of trial, Kennedy pleaded guilty to

Count 19 of the original indictment. R. 55 (Plea Agreement ¶ 1) (Page ID #197). The plea

agreement stated that the 2011 United States Sentencing Guidelines Manual (“U.S.S.G.”) would

determine Kennedy’s guidelines range, but it also stated that “[t]he parties have no agreement as

to the applicable guidelines.” Id. ¶ 5 (Page ID #198). At sentencing, the government moved to

dismiss the remaining twenty-two counts. R. 90 (Sent’g Tr. at 20) (Page ID #844).

       The Presentence Report (“PSR”) determined Kennedy’s total offense level to be 18 and

his criminal history category to be I. R. 78 (PSR ¶¶ 26, 33) (Page ID #309–10). This yielded a

guidelines range of 27 to 33 months’ imprisonment. Id. ¶ 66 (Page ID #316). The total offense

level reflected a base offense level of 18, plus an uncontested two-level enhancement for specific

offense characteristics, minus two points for acceptance of responsibility under U.S.S.G.

§ 3E1.1(a). Id. ¶¶ 18–26 (Page ID #309). The PSR arrived at the base offense level because it

stated that Kennedy had caused a total tax loss of $345,715.32 to the United States. Id. ¶ 11

(Page ID #307). This loss corresponds to a base offense level of 18 under U.S.S.G. § 2T1.4, the

relevant guideline for 26 U.S.C. § 7206(2) offenses. Id. ¶ 18 (Page ID #309). The PSR also

considered 118 other tax returns Kennedy prepared for forty-two clients as relevant conduct in



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United States v. Kennedy


calculating this total tax loss (it discusses 119 total returns, one of which is the return in Count

19 to which Kennedy pleaded guilty). Id. ¶¶ 9–11, 67 (Page ID #307, 316).

       Kennedy submitted a nine-page document called “Objections and Corrections to the

Presentence Investigation Report for James Raymond Kennedy” dated May 9, 2013 to the

probation officer preparing the PSR. Id. at 16–25 (Page ID #319–28). In relevant part, he

objected to the accuracy of the total tax-loss figure, id. at 21 (Page ID #324), and the PSR’s

inclusion of the 118 other tax returns as relevant conduct, contesting the PSR’s description of

these returns as including illegitimate or inflated deductions, id. at 17 (Page ID #320). The PSR

includes an Addendum addressing the objections filed by Kennedy. Id. at 26 (Page ID #329). It

states that before the probation officer submitted the final PSR, Kennedy, “both in person and

through counsel, withdrew the majority of his objections,” including his challenge to the tax-loss

calculation. Id. The Addendum states that Kennedy still “objects to the factual statements” in

paragraph ten of the PSR “in regards to the fraudulent deductions”—one of the paragraphs

describing the relevant conduct of the 118 other false tax returns—and notes that “[t]his

objection remains unresolved and does impact the guidelines.” Id. at 27 (Page ID #330).

       The government submitted a letter to the probation officer objecting to the PSR’s

acceptance-of-responsibility recommendation. Id. at 29–31 (Page ID #332–34). The probation

officer declined to reconsider its recommendation, but noted that “absent any clear authority, the

probation officer believes this is an issue best for the Court to decide.” Id. at 32 (Page ID #335).

The government continued to object to the acceptance-of-responsibility recommendation in its



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Sentencing Memorandum. R. 69 (Gov’t’s Sent’g Mem. at 3–6) (Page ID #249–52). Kennedy

did not address either the tax-loss calculation or the relevant conduct of the 118 other tax returns

in his Sentencing Memorandum. R. 67 (Def.’s Sent’g Mem.) (Page ID #222–31).

       The district court held a sentencing hearing on July 18, 2013. Kennedy did not object to

anything in the PSR at the sentencing hearing.         After hearing from the government and

Kennedy’s trial counsel, the district court denied Kennedy an acceptance-of-responsibility

reduction. R. 90 (Sent’g Tr. at 19) (Page ID #843). The court pointed to (1) the fact that

Kennedy “pled guilty on the third day of a trial”; (2) the now-withdrawn objections Kennedy

submitted to the PSR that the court characterized as “maintain[ing] his innocence”; and

(3) letters submitted in support of Kennedy, including from his family and Sergeant Major

Hubert “quoting the defendant in denying his responsibility for illegal conduct and basically just

saying that he made mistakes and didn’t want to fight the government.” Id. at 18–19 (Page ID

#842–43). The district court then sentenced Kennedy to thirty-six months of imprisonment and

one year of supervised release. Id. at 48 (Page ID #872).

       Kennedy appeals the district court’s sentence. He makes fives claims: (1) that the

district court abused its discretion in relying on the tax-loss calculation in the PSR; (2) that the

district court abused its discretion in determining that the 118 other tax returns described in the

PSR constituted relevant conduct; (3) that the district court committed an error of law in

applying the acceptance-of-responsibility guidelines; (4) that the district court clearly erred in

denying Kennedy an acceptance-of-responsibility reduction; and (5) that Kennedy’s trial



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United States v. Kennedy


counsel’s failure to review the objections Kennedy wrote to the PSR before sending them to the

probation officer and his failure to object to the PSR’s tax-loss figure amounted to ineffective

assistance of counsel. Appellant Br. at 2.

                                         II. ANALYSIS

A. Plain Error Review Applies to Kennedy’s Tax-Loss Calculation & Relevant
   Conduct Claims.

       Kennedy did not raise his tax-loss calculation or relevant conduct claims in his

sentencing memorandum or at the sentencing hearing. Under United States v. Bostic, 371 F.3d

865 (6th Cir. 2004), “sentencing arguments raised for the first time on appeal are reviewed under

the plain-error standard if the court asked ‘the parties whether they have any objections to the

sentence just pronounced that have not previously been raised.’” United States v. Brooks, 628

F.3d 791, 796 (6th Cir. 2011) (quoting Bostic, 371 F.3d at 872–73). Kennedy argues that the

standard of review on appeal should be abuse of discretion, rather than plain error, because the

district court “did not ask for any additional objections beyond those raised prior to the

pronouncement of sentence.” Appellant Br. at 18.

       After pronouncing his sentence, the district court asked, “Is there any legal objection to

the sentence as stated, [defense counsel]?” R. 90 (Sent’g Tr. at 52) (Page ID #876). Kennedy’s

counsel replied “No legal objection; no, your Honor.” Id. We have held on several occasions

that phrasing almost exactly the same as that used by the district court in this case satisfies

Bostic. See, e.g., United States v. Herrera-Zuniga, 571 F.3d 568, 577–78 (6th Cir. 2009)

(holding that “the sentencing judge complied with the Bostic rule” by “ask[ing] the parties


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No. 13-6011
United States v. Kennedy


whether they had ‘[a]ny legal objection to the sentence being imposed’”); United States v.

Blackie, 548 F.3d 395, 398 (6th Cir. 2008) (holding that “the district judge provided the parties

an opportunity to object following the imposition of the sentence” by “ask[ing] the parties if they

had ‘any legal objection to the sentence imposed’”).

       Thus, the district court properly complied with Bostic, and the standard of review is plain

error. To show plain error, “there must be (1) error, (2) that is plain, . . . (3) that affects

substantial rights[, and] (4) . . . the error seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Maliszewski, 161 F.3d 992, 1003 (6th Cir.

1998) (internal quotation marks and citation omitted).

B. The District Court Did Not Plainly Err in Relying on the Tax-Loss Calculation in
   the PSR.

       Kennedy argues that the district court erred in accepting the PSR’s calculation of total tax

loss because it is “manifestly unreliable.” Appellant Br. at 16. He asserts that “in analogous

circumstances, a threshold finding of reliability has been imposed on sentencing courts” and that

a similar requirement should be imposed on the reliability of undisputed facts in PSRs. Id. at

22–23. Such a requirement, Kennedy argues, also comports with due process. Id. at 23.

       When the facts in a PSR are undisputed, we repeatedly have held that the district court

may rely on those undisputed facts and does not need to find those facts independently. See, e.g.,

United States v. Geerken, 506 F.3d 461, 467 (6th Cir. 2007) (“When a defendant fails to produce

any evidence to contradict the facts set forth in the PSR, a district court is entitled to rely on

those facts when sentencing the defendant.”); United States v. Treadway, 328 F.3d 878, 886 (6th


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No. 13-6011
United States v. Kennedy


Cir. 2003) (“We can find no reason to require a district court to make independent findings

outside the PSR when the facts are undisputed. . . . Accordingly, we hold that a district court may

properly rely exclusively on the PSR for drug quantity when the drug quantity contained therein

is not in dispute.”).      This case law accords with Federal Rule of Criminal Procedure

§ 32(i)(3)(A), which states that a sentencing court “may accept any undisputed portion of the

presentence report as a finding of fact.” Fed. R. Crim. P. 32(i)(3)(A). It is only when the

defendant disputes a fact that “Rule 32(c)(1) and § 6A1.3 of the Sentencing Guidelines indicate

that reliance on the PSR is insufficient” and the district court must actually make its own factual

findings. Treadway, 328 F.3d at 886.

       At the same time, we have held that evidence relied on by a sentencing court must have at

least a minimum indication of reliability. Whether this line of cases applies to undisputed facts

in a PSR is less clear. In the case that Kennedy cites as analogous, United States v. Reid, 357

F.3d 574 (6th Cir. 2004), we held that “[t]he credited testimony of a single witness is sufficient

to support factual findings by a preponderance of the evidence on sentencing, which will survive

clear error review, if that evidence bears more than a minimum indicium of reliability.” Reid,

357 F.3d at 582 (emphasis added) (internal quotation marks and citation omitted). However, the

defendant had objected at sentencing that the evidence was insufficient to support the “‘felonious

use’ enhancement” at issue. Id. at 577–78. Other Sixth Circuit cases reaffirming this reliability

requirement have also focused on disputed facts. See, e.g., United States v. Denson, 728 F.3d

603, 614 (6th Cir. 2013) (“[W]hile a district court must base its findings on reliable information,



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No. 13-6011
United States v. Kennedy


a sentencing court may accept any undisputed portion of the presentence report as a finding of

fact.”) (internal quotation marks and citations omitted); United States v. Greene, 71 F.3d 232,

235 (6th Cir. 1995) (discussing this “minimum indicia of reliability” requirement as being based

in U.S.S.G. § 6A1.3(a), which focuses on situations “[w]hen any factor important to the

sentencing determination is reasonably in dispute”) (emphasis added). But at least a few cases

have asserted this threshold requirement of reliability without clearly tying it to disputed

evidence. See, e.g., United States v. Ward, 68 F.3d 146, 149 (6th Cir. 1995) (holding that when

estimating drug quantity, “the court finding must have some minimum indicium of reliability

beyond mere allegation” without specifying if that drug quantity was disputed at sentencing)

(internal quotation marks and citation omitted); United States v. Partington, 21 F.3d 714, 717

(6th Cir. 1994) (“When a defendant has pled guilty to certain counts of an indictment in

exchange for dismissal of other counts, the facts used for sentencing must have some minimal

indicium of reliability beyond mere allegation.”) (internal quotation marks and citation omitted).

       Given that Kennedy did not object to the PSR at his sentencing hearing, the district court

did not plainly err in accepting the undisputed tax-loss calculation figure.

       Moreover, Kennedy’s trial counsel appeared to agree expressly to the facts in the PSR,

which would preclude him from challenging those facts on appeal. The following exchange

occurred at the beginning of the sentencing hearing:

       THE COURT: . . . I note that there were numerous objections filed. Most of
       those have been resolved. According to my information, the only one that
       requires a resolution by the Court is Objection No. 3 to Paragraph 10 of the PSR;
       is that correct?


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No. 13-6011
United States v. Kennedy


       ...
       MR. GORDON: . . . Well, the probation officer says Objection No. 3 to
       Paragraph 10 does not impact the guidelines; however, it does offer context into
       Kennedy’s overall conduct. . . . So it really doesn’t affect the guidelines.
       ...
       THE COURT: Okay. The Court will note all objections for the record, but there
       are none raised by the defendant at this point that require a ruling from the Court,
       as they do not impact the guidelines.

R. 90 (Sent’g Tr. at 3–5) (Page ID #827–29).             Thus, Kennedy’s trial counsel’s apparent

agreement with the district court that the written objections had all been “resolved” or did not

impact the guidelines could qualify as express agreement to the facts within the PSR. “[O]nce a

defendant has ‘expressly agreed that he should be held accountable’ for the amount of drugs

involved, ‘he cannot now challenge the court’s factual finding on this issue.’” United States v.

Pruitt, 156 F.3d 638, 648 (6th Cir. 1998) (quoting United States v. Nesbitt, 90 F.3d 164, 168 (6th

Cir. 1996)).

       Assuming that a reliability requirement still applies to the tax-loss figure, we conclude

that the figure was not so patently unreliable as to fail the minimum-indicium-of-reliability

requirement.    The PSR does not explain mathematically how it arrived at the figure of

$345,715.32. R. 78 (PSR ¶ 11) (Page ID #307). Nor does the PSR explain how the illegitimate

and legitimate tax returns averages were calculated. Id. ¶ 12 (Page ID #307–08). We do note,

however, that multiplying the difference between the illegitimate-returns average and the

legitimate-returns average by 119 total tax returns yields a figure of $342,224. This figure is

close enough to the total tax-loss figure such that the latter is not patently unreliable.




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No. 13-6011
United States v. Kennedy


C. The District Court Did Not Plainly Err in Accepting the PSR’s Relevant Conduct
   Determination.

       Kennedy argues that the district court committed an error of law in accepting the PSR’s

characterization of the other 118 allegedly improper tax returns as relevant conduct. Appellant

Br. at 25. He argues that, in determining whether something is relevant conduct, “‘the conduct

should not be considered at a level of generality that would render worthless the relevant conduct

analysis.’” Id. (quoting United States v. Hill, 79 F.3d 1477, 1483 (6th Cir. 1996)). Kennedy

claims that “the PSR offers no factual detail that would have permitted the district court to move

beyond this impermissible level of generality” because “[n]owhere are the dates, improper

deductions, or tax loss amounts for each of these 119 returns described.” Id. at 25–26.

       Section 1B1.3 of the sentencing guidelines permits courts to consider “relevant conduct”

in calculating the base offense level. U.S.S.G. § 1B1.3. “For tax offenses, application note two

to § 2T1.1 states that in determining a defendant’s total tax loss, ‘all conduct violating the tax

laws should be considered as part of the same course of conduct or common scheme or plan

unless the evidence demonstrates that the conduct is clearly unrelated.’” United States v. Pierce,

17 F.3d 146, 150 (6th Cir. 1994) (emphasis added). We have held that “‘all conduct violating

the tax laws’ must refer to all relevant criminal conduct underlying the charged offense,” not

civil tax liability. United States v. Daniel, 956 F.2d 540, 544 (6th Cir. 1992).

       The evidence here does not demonstrate that the 118 other tax returns cited in the PSR

are “clearly unrelated.” Pierce, 17 F.3d at 150. Application Note 2 of § 2T1.1 provides as an

example of “same course of conduct or common scheme or plan” that “the violation in each


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No. 13-6011
United States v. Kennedy


instance involves a false or inflated claim of a similar deduction or credit.” U.S.S.G. § 2T1.1

cmt. n.2. The PSR stated exactly that: “[a] review of the returns reveals that Kennedy often

used the same amount for the same deduction on different individual’s [sic] returns, deductions

that he inflated.” P. 78 (PSR ¶ 10) (Page ID #307). The PSR also focused on criminal conduct,

describing the 118 returns as containing “falsified deductions.” Id. ¶ 9 (Page ID #307). Finally,

the PSR stated that Kennedy prepared all of these returns through his tax preparation business

“during the tax years 2004 through 2008,” which could support the existence of a “common

scheme.” Id. To the extent that Kennedy’s argument is actually with the facts in the PSR—such

as his argument that the PSR does not demonstrate that in preparing the 118 tax returns, Kennedy

actually violated the tax code, Appellant Reply Br. at 4—he runs into the same problems

discussed above with the tax-loss figure. He did not challenge these factual determinations in the

PSR. And unlike with the tax-loss figure, he does not argue that these facts are patently

unreliable. Our case law is clear that the district court was entitled to rely on these facts.

       Thus, the district court did not plainly err in accepting the PSR’s characterization of the

118 other tax returns as relevant conduct.

D. The District Court Did Not Err in Denying Kennedy an Acceptance-of-
   Responsibility Reduction.

       1. Standard of Review

       “The defendant has the burden of demonstrating by a preponderance of the evidence that

a reduction for acceptance of responsibility is warranted.” United States v. Banks, 252 F.3d 801,

806 (6th Cir. 2001). We review a district court’s determination of acceptance of responsibility


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No. 13-6011
United States v. Kennedy


under “the overall deferential scope of review set forth in Buford v. United States, 532 U.S. 59,

64–65 (2001).” United States v. Bolden, 479 F.3d 455, 464 (6th Cir. 2007). “[P]urely factual

components of the acceptance of responsibility determination” are rejected “only if . . . clearly

erroneous.”   Id.   “[T]he trial court’s determination of whether a defendant has accepted

responsibility” is “[g]enerally a question of fact.” United States v. Morrison, 983 F.2d 730, 732

(6th Cir. 1993). “However, if the only issue presented is the propriety of applying the reduction

to the uncontested facts, the decision is reviewed de novo.” United States v. Coss, 677 F.3d 278,

290 (6th Cir. 2012) (internal quotation marks omitted).

       Here, neither party contests the facts relevant to the acceptance-of-responsibility

reduction, so we review the district court’s decision de novo.

       2. The district court properly denied Kennedy an acceptance-of-responsibility
           reduction

       Kennedy argues that the district court erred in denying him an acceptance-of-

responsibility reduction. First, he argues that “[t]he district court improperly penalized [him] for

pleading guilty after two days of trial” in denying him an acceptance-of-responsibility reduction

because the court focused only on the waste of government resources in preparing for trial.

Appellant Br. at 28. In so doing, Kennedy argues that the district court misunderstood the

“concerns animating § 3E1.1(a),” which are not “concerns about the consumption of government

resources, but . . . suspicion toward the trustworthiness of post-conviction remorse.”           Id.

Manufactured remorse is not present in this case, Kennedy argues, because Kennedy pleaded

guilty after only two days of trial and “very little of the evidence presented by the government


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No. 13-6011
United States v. Kennedy


. . . demonstrated that Mr. Kennedy’s preparation of these false tax documents was willful.” Id.

at 30–31.

       Second, Kennedy argues that the district court erred because he “fully satisfied the

requirements of Section 3E1.1(a).” Id. at 32–33. He points to his guilty plea prior to conviction

by trial, and that he “repeatedly and truthfully admitt[ed] responsibility for the criminal conduct

to which he pled” at his sentencing hearing. Id. at 33. Kennedy notes that his objections to the

PSR were withdrawn and claims that he did not “‘falsely den[y], or frivolously contest[],

relevant conduct’” in that memorandum, so it should not count against a reduction. Id. at 37

(quoting U.S.S.G. § 3E1.1(a) cmt. n.1(A)). Finally, Kennedy argues that “it was improper for

the district court to give” letters from his wife and Sergeant Major Hubert “more weight than Mr.

Kennedy’s own conduct and statements” because “the guidelines themselves emphasize a

defendant’s own conduct and statements.” Id. at 38.

       We first note that Kennedy’s guilty plea standing alone is insufficient to entitle him to an

acceptance-of-responsibility reduction. As Application Note 3 makes clear, “[a] defendant who

enters a guilty plea is not entitled to an adjustment under this section as a matter of right.”

U.S.S.G. § 3E1.1 cmt. n.3. Moreover, Kennedy does not clearly fall into the category of cases

described in Application Note 3 as “constitut[ing] significant evidence of acceptance of

responsibility” because he did not plead guilty “prior to the commencement of trial.” Id.

(emphasis added). And even the “significant evidence” it describes “may be outweighed by

conduct of the defendant that is inconsistent with such acceptance of responsibility.” Id.



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No. 13-6011
United States v. Kennedy


       Turning to the factors cited by the district court, we hold that the district court did not

commit an error of law in considering the resources the government spent in undertaking two

days of trial in deeming Kennedy’s plea untimely.

       At the sentencing hearing, the district court focused on the fact that the “most if not all of

the efficiencies associated with a timely plea were at least minimized in this case” because ‘the

government prep was done, a jury was impaneled, [and] three days of evidence had been

admitted.’” R. 90 (Sent’g Tr. at 18) (Page ID #842). The district court did not discuss the timing

of Kennedy’s plea as demonstrating manufactured or insincere remorse.

       Looking first to the Sentencing Guidelines, the government rightly points out that

Application Note 1(H) invites a district court to consider “the timeliness of the defendant’s

conduct in manifesting the acceptance of responsibility” under § 3E1.1(a). U.S.S.G. § 3E1.1

cmt. n.1(H). Admittedly, this note does not explicitly link timeliness to waste of government

resources.   In contrast, Section 3E1.1(b), which allows the government to move for one

additional level of reduction if a defendant satisfies § 3E1.1(a) and “timely notif[ied] authorities

of his intention to enter a plea of guilty,” does explicitly invite consideration of waste of

government resources.      U.S.S.G. § 3E1.1(b).      The subsection links timely notification to

“permitting the government to avoid preparing for trial and permitting the government and the

court to allocate their resources efficiently.” Id. This might indicate, as Kennedy argues, that

waste of government resources can only be considered in § 3E1.1(b). Appellant Br. at 29.




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No. 13-6011
United States v. Kennedy


       However, Application Note 6 appears to distinguish “timeliness” under § 3E1.1(a) and

(b) on the basis of how early a defendant pleads guilty, and therefore how much more

government resources are saved. It states that:

       The timeliness of the defendant’s acceptance of responsibility is a consideration
       under both subsections, and is context specific. In general, the conduct qualifying
       for a decrease in offense level under subsection (b) will occur particularly early
       in the case. For example, to qualify under subsection (b), the defendant must
       have notified authorities of his intention to enter a plea of guilty at a sufficiently
       early point in the process so that the government may avoid preparing for trial
       and the court may schedule its calendar efficiently.

U.S.S.G. § 3E1.1 cmt. n.6 (emphasis added). A plausible reading of this note is that a defendant

who qualifies under subsection (b) will likely have permitted the government to avoid preparing

for trial entirely, whereas the government may have had to incur some expenses in preparing for

trial with a defendant who qualifies for subsection (a) only. This note thus suggests that waste of

government resources can be considered under both § 3E1.1(a) and (b).

       The guidelines commentary also invites consideration of manufactured remorse, as

Kennedy claims. But the commentary does not state that, once a defendant proceeds to trial,

only manufactured remorse can be considered in the timeliness factor. And Application Note 2,

which Kennedy cites, appears to be primarily focused on defendants convicted by trial. Id. cmt.

n.2 (emphasis added) (“This adjustment is not intended to apply to a defendant who puts the

government to its burden of proof at trial by denying the essential factual elements of guilt, is

convicted, and only then admits guilt and expresses remorse.”).




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No. 13-6011
United States v. Kennedy


       We previously have noted that the timing of a plea wasted government resources in

preparing for trial in holding that district courts properly denied an acceptance-of-responsibility

reduction under § 3E1.1(a). In United States v. Temple, we upheld the district court’s denial of

an acceptance-of-responsibility reduction. No. 92-5714, 1993 WL 100088 (6th Cir. Apr. 5,

1993) (unpublished disposition). We explicitly noted that “it is apparent that the attorneys for

both sides had prepared their cases for a one-and-a-half-day trial” in holding that the district

court properly considered the defendant’s guilty plea “on the day his case was set for trial”

untimely. Id. at *4. Similarly, in United States v. McClellan, we upheld the district court’s

denial of an acceptance-of-responsibility reduction under § 3E1.1(a) in part because the

“defendant did not give timely notice of his intention to plead guilty.” No. 96-6593, 1998 WL

165145, at *5 (6th Cir. Mar. 30, 1998) (unpublished disposition). We noted the extra resources

that had to be expended because the defendant pleaded guilty before trial only after being

apprehended while fleeing the jurisdiction. Id. (“For example, defendant’s flight from Tennessee

extended the proceedings by more than four months. It required courts in two jurisdictions to go

through additional efforts in petitioning the revocation of his bond, executing arrest warrants,

conducting additional initial appearances, and appointing multiple attorneys.”).

       Similarly, we hold that the district court did not commit an error of law in citing the

statements attributed to Kennedy in his letters of support in denying him an acceptance-of-

responsibility reduction.




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No. 13-6011
United States v. Kennedy


       The district court properly cited the letters of support from Kennedy’s wife and Sergeant

Major Hubert as inconsistent evidence indicating that Kennedy did not accept responsibility for

his crime. We have held that “[m]erely expressing regret for the consequences of the criminal

conduct, without admitting wrongful intent, does not constitute acceptance of responsibility

within the meaning of the Guidelines.” United States v. Genschow, 645 F.3d 803, 813 (6th Cir.

2011) (emphasis added).     The two letters of support indicate that Kennedy did not admit

wrongful intent.   Instead, he characterized his guilty plea as necessary in the face of the

government’s greater resources and his inept attorney, and described his conduct as “mistakes.”

       In Kennedy’s wife’s letter of support, she wrote that, “As he told me the morning he

accepted the plea agreement, ‘When you’ve got the full force and unlimited resources of the

United States government against you, how can you really fight it?’” R. 68-1 (Ex. A at 11)

(Page ID #245). Sergeant Major Hubert wrote:

       I have spoken with Mr. Kennedy right after he took the plea agreement and asked
       him why he took this agreement. He stated to me that his attorney went into court
       totally unprepared to defend him and that on some level he had to take
       responsibility because he did make mistakes in some of the returns, but that’s
       what they were, mistakes.

Id. at 8 (Page ID #242) (emphasis added). Similar language has been held to indicate denial of

criminal intent. Genschow, 645 F.3d at 813–14 (pointing to the defendant’s statement that

“while I now recognize that this Court has determined my actions to have been wrong, I continue

to believe that I acted honorably and in good faith.”); United States v. Hughes, 283 F. App’x 345,

353 n.6 (6th Cir. 2008) (noting that “our reading of the record did not reveal any indication that



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United States v. Kennedy


Hughes accepted responsibility for his actions[,]” in part because of his statement “during the

allocution that he ‘made a mistake, honest mistake.’”).

       We have at least once looked to the defendant’s conduct as reflected in letters of support

submitted on the defendant’s behalf as relevant to the acceptance-of-responsibility

determination. See United States v. Montague, 519 F. App’x 337, 338–39 (6th Cir. 2013) (“The

record shows that Montague has convinced his family of his innocence, as both his mother and

aunt made statements indicating that Montague was only in this position because he accepted a

ride from the wrong people on the day of his arrest.”).

       Moreover, Kennedy’s argument that the letters are not reflective of his conduct—what

should be the focus of the guidelines—is misplaced. The district court relied on the letters only

to the extent of what the authors reported that Kennedy had told them about his reason for

pleading guilty. R. 90 (Sent’g Tr. at 19) (Page ID #843) (emphasis added) (“[L]etters submitted

in the record quoting the defendant in denying his responsibility for illegal conduct and basically

just saying that he made mistakes and didn’t want to fight the government certainly are not

indicative of someone who understands the wrongfulness of his actions, accepts responsibility

for them, and is even sorry for them.”). Thus, the district court properly remained focused on

Kennedy’s conduct and whether his conduct revealed that he had accepted responsibility.




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       In sum, hold that the district court properly denied Kennedy an acceptance-of-

responsibility reduction given his untimely plea and the statements attributed to him in his letters

of support.1

E. The Record is Insufficient to Evaluate Kennedy’s Ineffective-Assistance-of-
   Counsel Claim.

       Finally, Kennedy raises an ineffective-assistance-of-counsel claim. Appellant Br. at 39.

Kennedy alleges two errors. First, he points to his trial counsel’s alleged failure to review the

written objections Kennedy prepared to the PSR before sending them to the probation officer.

He argues this amounted to a breach of attorney-client privilege as well as a breach of an

attorney’s obligation to review the PSR with his client and “advise the client of the impacts

communication with probation might have on sentencing outcomes.” Appellant Br. at 40–41.

He argues that his trial counsel’s action prejudiced him because the objections became part of the

record and the district court cited those objections in denying him an acceptance-of-

responsibility reduction. Id. at 42–43. Second, Kennedy points to his trial counsel’s failure to




       1
         We reach this conclusion without resolving Kennedy’s claim that the district court
improperly considered his withdrawn objections to the PSR. Though Kennedy’s claim is not
without merit, there is sufficient evidence in the record demonstrating that the district court
would have properly denied Kennedy an acceptance-of-responsibility reduction even without
considering his withdrawn objections to the PSR, and therefore we do not resolve this aspect of
Kennedy’s arguments. See, e.g., United States v. Cook, No. 97-5943, 1999 WL 220116, at *4
(6th Cir. April 7, 1999) (unpublished disposition); United States v. Hurst, No. 92-6316, 1993 WL
272514, at *6 n.1 (6th Cir. July 21, 1993) (unpublished disposition); United States v. Guarin,
898 F.2d 1120, 1123 (6th Cir. 1990) (Jones, J., concurring). Nor do we resolve the parties’
dispute over statements made at the sentencing hearing after Kennedy was denied the
acceptance-of-responsibility reduction.

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No. 13-6011
United States v. Kennedy


object to the “patently unreliable tax loss calculations at sentencing,” id. at 43, the adoption of

which “potentially resulted in a significant increase in the applicable sentencing range,” id. at 44.

       To prevail on an ineffective-assistance-of-counsel claim, a defendant must demonstrate

that his trial “counsel’s performance (1) ‘fell below an objective standard of reasonableness’ and

(2) was prejudicial, i.e., ‘but for counsel’s unprofessional errors, the result of the proceeding

would have been different.’” United States v. Franklin, 415 F.3d 537, 556 (6th Cir. 2005)

(quoting Strickland v. Washington, 466 U.S. 668, 693–94 (1984)). We generally do not address

claims of ineffective assistance of counsel on direct appeal. See, e.g., United States v. Bradley,

400 F.3d 459, 462 (6th Cir. 2005) (citing cases). “However, there is a narrow exception to the

general rule that ineffective assistance claims may not be considered on direct appeal—namely,

when the existing record is adequate to assess properly the merits of the claim.” Franklin,

415 F.3d at 555–56 (internal quotation marks and citation omitted).

       The record here does not appear to fall within the “narrow exception” to the general rule

of declining to consider ineffective-assistance-of-counsel claims on direct appeal. There is

certainly more evidence than is typically the case on direct appeal of problems with Kennedy’s

trial counsel’s performance. Kennedy’s trial counsel appeared to imply that he had failed to

review Kennedy’s objections to the PSR at all before sending them to probation:

       The objections that were filed by Mr. Kennedy. I was not in the office for a
       couple of days then. I said, “Let’s get the objections in.” We got them in, we
       filed them. We sent them. We then had a meeting with the Probation Office. We
       went over the objections. We made a decision together that those are not
       appropriate objections.



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No. 13-6011
United States v. Kennedy


R. 90 (Sent’g Tr. at 13) (Page ID #837). And Kennedy’s statement later in the sentencing

hearing that he had “thought that [his trial counsel] was going to review those [objections] and

give me counsel before those objections went in [to probation]” would seem to support this. Id.

at 32 (Page ID #856). However, it is not clear if Kennedy’s trial counsel had previously

discussed the PSR with Kennedy or the objections Kennedy eventually articulated in written

form. If he had not, this would seem to cast significant doubt on there being any valid strategic

reason for sending in Kennedy’s written objections unreviewed. But the record is insufficient to

determine this. Nor is it clear whether Kennedy’s trial counsel had previously discussed with

Kennedy how he might use any objections Kennedy conveyed to him in court. Thus, it is not

certain if Kennedy’s written objections were protected by the attorney-client privilege. In short,

while there is more evidence in the record than is typically the case on direct appeal, factual

issues still remain about Kennedy’s trial counsel’s actions.

       Regarding the failure to object to the tax-loss calculation, the record does not contain any

information as to why Kennedy’s trial counsel withdrew Kennedy’s original objection to the tax-

loss calculation. Thus, it is not possible to determine whether Kennedy’s counsel had no

strategic reason for doing so. See United States v. Gilmore, 387 F. App’x 613, 617 (6th Cir.

2010) (“The court declines to rule on Gilmore’s ineffective assistance claim on direct appeal

because the existing record is not adequate to evaluate whether Gilmore’s counsel had a strategic

reason to withdraw his objection to the PSR’s drug quantity.”).




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United States v. Kennedy


                                   III. CONCLUSION

       For the reasons set forth above, we AFFIRM the sentence of the district court and

DECLINE to review Kennedy’s ineffective-assistance-of-counsel claim.




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