198 F.3d 995 (7th Cir. 2000)
United States of America,    Plaintiff-Appellee,v.Carlton T. McIntosh,    Defendant-Appellant.
No. 98-4023
In the  United States Court of Appeals  For the Seventh Circuit
Argued May 21, 1999Decided January 5, 2000

Appeal from the United States District Court  for the Southern District of Indiana, Indianapolis Division.  No. 98 CR 36--David F. Hamilton, Judge.[Copyrighted Material Omitted]
Before Flaum, Kanne and Rovner, Circuit Judges.
Kanne, Circuit Judge.


1
Carlton McIntosh pleaded  guilty to one count of money laundering. The  district court sentenced him to seventy-eight  months imprisonment and three years supervised  release. While it imposed no fine, it did order  him to pay restitution in the amount of  $38,764.50. McIntosh believes the district court  improperly calculated his sentence under the  United States Sentencing Guidelines by denying  him a downward departure for acceptance of  responsibility, erroneously determining the  amount of restitution and failing to consider his  ability to pay restitution. We disagree and  affirm the sentence.

I.  History

2
In March 1997, McIntosh was serving a sentence  for a bank fraud conviction out of the U.S.  District Court in St. Louis. He was incarcerated  at the federal prison facility in Duluth,  Minnesota. Under the Interstate Agreement on  Detainers, federal officials released McIntosh to  the custody of the State of Illinois. After  pleading guilty in state court to forgery and  being sentenced to time served, he was  inadvertently released from state custody and not  returned to federal custody. McIntosh remained at  large and did not voluntarily surrender himself  to federal officials. Shortly after his mistaken  release, McIntosh was charged with escape in U.S.  District Court in Minnesota.


3
While attempting to evade capture, McIntosh  opened three accounts with Bank One in Kenosha,  Wisconsin. Two were in the name of "Irwin  Hardis," and the third was in the name of "Hardis  Investment Services." When establishing these  accounts, he deposited checks into them drawn  from accounts with either no money in them or  accounts with insufficient funds. Then, he  attempted to make withdrawals from the three new  accounts. The largest single withdrawal appears  to be a cashier's check provided to him by Bank  One in the amount of $28,900.00 from the "Hardis  Investment Services" account.


4
U.S. Marshals apprehended McIntosh in late April  in Indianapolis. At the time of his arrest, he  was driving a 1994 BMW that he had purchased with  the Bank One cashier's check. They also recovered  from him $1,558.54 in cash.


5
Before McIntosh returned to Minnesota to face  the charges for escape, the government charged  him in the Southern District of Indiana on April  30, 1997, with a two count criminal complaint  alleging bank fraud and money laundering. An  arrest warrant was issued based on the criminal  complaint. Subsequently, the escape charge in  Minnesota was dismissed, and on May 1, 1997, the  arrest warrant issued in Indianapolis was  executed. On May 30, 1997, the government filed  a single-count information, charging McIntosh  with bank fraud under 18 U.S.C. sec. 1344. For a  period of ten months, plea negotiations ensued  between McIntosh and the government, but  ultimately McIntosh refused to enter into a plea  agreement. With the breakdown in plea  negotiations, a grand jury returned an indictment  on March 3, 1998, charging McIntosh with one  count of money laundering under 18 U.S.C. sec.  1957. On that same day, the government moved to  dismiss the pending bank fraud information. That  information was dismissed on March 16, 1998.


6
In response, McIntosh filed a motion to dismiss  based on the Speedy Trial Act, alleging that it  barred prosecution of the money laundering charge  because the government failed to try McIntosh  within seventy days of filing the charging  information and that the indictment was returned  ten months after his arrest. After holding an  evidentiary hearing, the district court denied  the motion, concluding that the bank fraud and  money laundering charges were different and that  the clock on the money laundering charge in the  indictment did not begin to run with the bank  fraud charge in the information. The district  court concluded that the government had not  exceeded the seventy-day limit with regard to the  money laundering charge because the delay  resulted from various extensions requested by  McIntosh. The district court also found "no  suggestion of bad faith on the part of the  government," but rather that "the delay that did  result was caused by protracted plea negotiations  between the parties."


7
Five days before he was scheduled for trial,  McIntosh requested to enter a plea of guilty  without a plea agreement. The district court held  an evidentiary hearing, during which it advised  him of his rights and accepted his guilty plea.  McIntosh subsequently filed pro se a request to  dismiss his counsel and set aside his guilty  plea. He contended that the government's  indictment failed to allege a federal offense  because it did not assert that the bank was  federally insured. In addition to requesting that  the district court dismiss the case with  prejudice, he claimed his court-appointed counsel  refused to act on this issue and requested new  counsel. At sentencing, however, he withdrew the  motion. In a separate motion, McIntosh objected  to the Presentence Investigation Report ("PSI")  because of its calculation of points under the  United States Sentencing Guidelines ("U.S.S.G."  or "Sentencing Guidelines") and its calculation  of restitution. The district court sentenced him  to serve seventy-eight months imprisonment and  three years supervised release and to pay  $38,764.50 in restitution to Bank One for its  direct losses due to his criminal activity.

II.  Analysis

8
McIntosh appeals his sentence and the assessment  of restitution. First, he claims the district  court erred when it denied him a two-level  decrease under U.S.S.G. sec. 3E1.1(a) for  acceptance of responsibility. Second, he contests  the district court's order of restitution,  contending that no evidence supports the amount  Bank One lost, that he should be credited for the  property the government confiscated when he was  arrested, and that the court failed to consider  his economic status when imposing the order.

A.  Acceptance of Responsibility

9
McIntosh's first challenge to his sentencing  involves the district court's denial of a two-  level decrease in his base offense level for  acceptance of responsibility in accordance with  U.S.S.G. sec. 3E1.1(a). We review a district  court's factual determination regarding  acceptance of responsibility for clear error. See  United States v. Jones, 52 F.3d 697, 700 (7th  Cir. 1995). We will reverse the finding only if  the record contains no evidence providing a  foundation for it. See id. The district court is  entitled to great deference in making these  determinations because it is "in a unique  position to evaluate a defendant's acceptance of  responsibility." U.S.S.G. sec. 3E1.1 cmt. 5. "The  question of whether a defendant has accepted  responsibility for his crimes is a factual one,  depending largely on credibility assessments of  the sentencing judge." United States v. Rosalez-  Cortez, 19 F.3d 1210, 1218 (7th Cir. 1994)  (quoting United States v. Skinner, 986 F.2d 1091,  1100 (7th Cir. 1993)).


10
Under U.S.S.G. sec. 3E1.1(a), a district court  may grant a defendant who "clearly demonstrates  acceptance of responsibility for his offense [a]  decrease [in] the offense level by 2 levels." The  accompanying commentary explains that a district  court may consider, but is not limited to, the  truthfulness of the admission, the false or  frivolous denial of additional relevant conduct,  voluntary termination or withdrawal from the  criminal conduct or association, voluntary  payment of restitution prior to adjudication of  guilt, voluntary surrender to authorities  promptly after commission of the offense,  voluntary assistance to authorities in recovering  the fruits and instrumentalities of the offense,  voluntary resignation from offices held during  the offense, post-offense rehabilitation efforts,  and timeliness of manifestation of acceptance of  responsibility. See id. cmt. 1. Simply pleading  guilty does not entitle a defendant to an  automatic reduction. See id. at cmt. 2. The  burden, however, rests with the defendant who  enters a guilty plea to establish that he is  entitled to a reduction. See United States v.  Taylor, 72 F.3d 533, 549 (7th Cir. 1995),  dismissal of post-conviction relief affirmed by  142 F.3d 440 (7th Cir. 1998).


11
In light of our deference to district courts,  "[w]e have refrained from formulating categorical  tests, preferring to leave it to the sentencing  judges to apply common sense to the testimony  they hear and the defendants they observe."  United States v. Dvorak, 41 F.3d 1215, 1217 (7th  Cir. 1994). When the district court considers  this type of decrease, it should assess the  defendant's "demonstration of 'genuine remorse,'  or 'conscience.'" Id. "A judge may determine that  a defendant has failed to accept responsibility  by finding that he failed to demonstrate  truthfulness and remorse prior to 'the final hour.'"  Rosalez-Cortez, 19 F.3d at 1219 (quoting United  States v. Osborne, 931 F.2d 1139, 1155 (7th Cir.  1991)). "A 'grudging and incomplete admission,  accompanied by an excuse to minimize his own  culpability, does not indicate acceptance of responsibility.'"  Id. at 1220 (quoting United States v. Aquilla, 976 F.2d 1044, 1053 (7th Cir. 1992)).


12
The transcript of the sentencing hearing reflects the district court's reluctance to  accept McIntosh's plea as indicative of true  remorse. Specifically, the district court stated:


13
At this point I'm not persuaded that Mr. McIntosh  has accepted responsibility for his conduct,  given the developments in this case up to today,  and I would be happy to hear anything [the  defense] has to say on that subject. Ordinarily,  someone who pleads guilty will be entitled to a  two level reduction for acceptance of  responsibility. And I think in all prior cases I  have given that adjustment--to someone who has  pled guilty--at the bottom. However, I believe  the district court is called upon to make some  assessment of whether the defendant reflects some  moral recognition of the wrongfulness of his  conduct and acceptance of the appropriate  punishment for that conduct, and at this point I  have serious doubts as to whether that's  appropriate here.


14
In response, McIntosh's attorney attempted to  explain McIntosh's belief that he wanted to admit  his guilt and also desired to "be dealt with  [according to] his interpretation of being  treated justly and fairly." McIntosh also  addressed the court, stating that "all I've been  trying to do is get this process over with, over  with, over with" since he first spoke with  federal officials in May 1997. The court,  however, expressed disbelief as to the sincerity  of McIntosh's comments:


15
How do you reconcile what you just told me, Mr.  McIntosh, with the effort to have the case  dismissed on speedy trial grounds, and your  communication two or three weeks ago asking to  have the indictment dismissed because it didn't  say that Bank One is insured by the F.D.I.C.?


16
The district court heard arguments from both  sides as to whether McIntosh attempted to  manipulate the system or merely attempted to  exercise his constitutional rights. McIntosh  claims that his motion under the Speedy Trial  Act, in which he sought to have the case  dismissed based on the ten months of failed  negotiation between himself and the government,  arose from being treated unfairly by the  government. The government characterized the  motion differently: "It is our belief that Mr.  McIntosh is attempting to manipulate the system  and he has done that from the beginning."


17
The government also explained that the plea  negotiations involved a deal for a guilty plea to  bank fraud charges or the government would seek  to indict McIntosh for money laundering. "When  push came to shove, and Mr. McIntosh got every  single term he wanted in the plea agreement, [as  a witness testified during the hearing on the  Speedy Trial Act motion], he said no, I'm not  signing. In essence [he] put everyone in a trick  bag for that."


18
The government further reminded the court that  after agreeing to plead guilty to the money  laundering charge, McIntosh "at the 11th hour .  . . [attempted another] manipulation where he's  seeking to dismiss the charges rather than go  through with this prior conduct." McIntosh closed  the discussion on this issue with the district  court by denying that the initial plea agreement  was stacked completely in his favor.


19
After hearing these arguments, the district  court stated its findings:


20
[A]s I indicated earlier--I have, I believe in  all prior cases involving guilty pleas, granted  [a downward deduction for acceptance of  responsibility]. I do not believe it is  appropriate in this case. I want to explain what  I am considering in making that judgment and what  I am not considering. I am not considering the  give and take in plea negotiations. I am not  considering objections raised to the presentence  report's guideline calculations . . . I think  that--that anybody is entitled to do that and  [that] does not affect the acceptance of  responsibility issue, unless they're arguing in  essence the scope of relevant conduct in the  particular case or that it may be relevant. What  I do find difficult--well, for me impossible to  reconcile with genuine remorse in this case--is  Mr. McIntosh's efforts to seek dismissal in this  case on speedy trial act grounds, and then on an  extraordinarily technical reading of the  indictment even after he had pled guilty. I think  [the government's] use of the phrase trick bag or  attempted trick bag is correctly accurate in  describing the attempted manipulation of the  system here. And for that reason, I don't believe  that Mr. McIntosh has exhibited the kind of  remorse that would entitle him to 3E1.1  reductions, although he has admitted the  technical elements of the offense charged here.


21
On appeal, McIntosh argues that the district  court's reasoning is improper because it denied  him the decrease as a way to punish him for  exercising his constitutional right to a speedy  trial, challenging a defective indictment, and  his repetitive pattern of conduct. He believes  his "early" admission of guilt coupled with a  complete and truthful admission of it entitle him  to the reduction. We disagree.


22
Initially, we observe that the statements by  the district court at sentencing demonstrate that  it did not consider McIntosh's four convictions  for bank related offenses during a period of four  years as a basis for rejecting his acceptance of  responsibility. Nevertheless, the district court  has a responsibility to look at the whole picture  when making its determination of whether a  defendant has genuine remorse.


23
In determining a defendant's sincerity, the  district court has an opportunity to observe a  defendant "firsthand" during the course of a  criminal case. That assessment, of  course, is  aided by the knowledge of a defendant's prior   conduct, background, and experience (typically  through a PSI), which is used to place the  physical observations of the defendant by the  court in a broader context. Determining  believability cannot be accomplished in a vacuum.


24
Here, it was no doubt significant for the  district court to know that, in carrying out a  series of crimes, McIntosh habitually employed  deceit. In conning financial institutions through  a pattern of deception, McIntosh used seven  aliases and five bogus social security numbers.


25
In addition, the criminal charge at issue here  hardly represents McIntosh's first encounter with  the judicial process. For example, in 1994,  McIntosh pleaded guilty to one count of bank  fraud in the U.S. District Court in St. Louis in  accordance with a plea agreement that  acknowledged his acceptance of responsibility  pursuant to U.S.S.G. sec. 3E1.1. While awaiting  sentencing on his plea of guilty, his bond was  revoked for again engaging in a bank fraud scheme  while released pending sentencing. After serving  the twelve-month sentence of incarceration handed  down by the federal court in St. Louis, McIntosh  began a period of supervised release. The  supervised release was revoked in 1995 based on  criminal activity involving bank fraud committed  during the term of supervision. These factors  would certainly be useful to place in context  McIntosh's profession of remorse in this case and  conduct during the course of the proceedings  below.


26
Thus, with foregoing in mind, we examine the  other two grounds raised by McIntosh--his  allegation that in denying acceptance of  responsibility the district court improperly  focused on his speedy trial challenge and his  contention that the indictment for money  laundering was defective. From the circumstances  of the sentencing hearing, it is clear that the  district court did not penalize him for seeking  these remedies. Rather, the district court  considered these two motions as part of the  larger procedural history of the case.


27
A district court may consider procedural history  and whether a defendant has attempted to  manipulate the system when determining whether  that defendant has sincerely accepted  responsibility under the Sentencing Guidelines.  See United States v. Trussel, 961 F.2d 685, 691  (7th Cir. 1992). While a defendant may not be  denied a decrease for exercising his  constitutional rights automatically, see United  States v. Purchess, 107 F.3d 1261, 1269 (7th Cir.  1997), the filing of pre-trial motions may be  inconsistent with an acceptance of  responsibility. See United States v. Robinson, 20  F.3d 270, 275 (7th Cir. 1994). Determining  whether a defendant is manipulating the judicial  system or simply exercising her rights turns on  factual findings and the credibility of the  defendant, both of which are "uniquely suited to  the intuition and experience of the district  judge." Purchess, 107 F.3d at 1269.


28
In this case, the district court did not rush  to judgment; it considered arguments from both  sides as well as the prior discussions regarding  both motions. The court did not express concerns  about the fact that McIntosh had filed and argued  the motions, but rather the context in which he  had raised them. In filing the motion based on  the Speedy Trial Act, McIntosh sought to have the  case dismissed because of the government's  failure to try him on the bank fraud charge  alleged in the criminal information and  subsequent procurement of an indictment for money  laundering ten months after the filing of the  initial information. He, however, was partially  responsible for the delay because of the extended  period during which he and the government tried  to reach a plea agreement. We do not question his  right to walk away from negotiations that he  finds unacceptable. However, this conduct  discloses a lack of acceptance of responsibility.  He claims to have admitted guilt early on. Yet he  actually attempted to avoid prosecution by  raising the issue of delay that existed because  of his own actions and not from the government  acting in bad faith.


29
The situation involving the second motion for  dismissal also creates considerable doubt as to  McIntosh's sincerity. After having pleaded guilty  and acting pro se, he sought a dismissal,  claiming that the indictment failed to allege a  federal offense because it did not refer to Bank  One as insured by the F.D.I.C. Pleading guilty  then attempting to obtain a dismissal on a  frivolous point is disingenuous and wholly  inconsistent with acceptance of responsibility.


30
As the district court determined, these motions  were not genuine attempts to exercise legal  rights, but rather were calculated maneuvers to  avoid ultimate responsibility. The district court  was entitled to doubt the credibility of McIntosh  based on the whole picture before it, and its  assessment was not clearly erroneous. Thus, we  find no reason to disturb the district court's  ultimate findings and conclusions.

B.  Restitution Order

31
McIntosh also takes exception to both the  amount the district court ordered him to pay in  restitution to Bank One and the manner in which  the district court considered his financial  status. He claims that the district court  improperly accepted the PSI calculation of the  amount of loss to Bank One without requiring the  government to present evidence and that the court  failed to credit him with the value of the BMW  and cash taken from him when he was arrested in  Indianapolis. In addition, he asserts that the  district court did not consider his indigent  status when it imposed restitution while  simultaneously waiving the criminal fine without  explanation and required the payment to be  immediate.


32
The district court included restitution payments  as part of McIntosh's sentence pursuant to the  Mandatory Victim Restitution Act ("MVRA"), 18  U.S.C. sec. 3663A. We generally review a district  court's imposition of an order of restitution for  abuse of discretion. See United States v.  Brierton, 165 F.3d 1133, 1139 (7th Cir. 1999).  Because McIntosh only objected to the PSI's  failure to include the value of the BMW and cash  recovered from him in the calculation of  restitution and he did not raise his other  objections to the trial court, we review these  aspects of the order of restitution for plain  error only. See United States v. Moore, 127 F.3d  635, 637 (7th Cir. 1997).


33
The MVRA requires courts to include restitution  to the victims as part of the sentence for  defendants convicted of specific crimes,  including property crimes such as money  laundering. See 18 U.S.C. sec.sec. 3663A(a)(1),  (c)(1)(A)(ii). The district court may determine  the amount of restitution based on the loss to  the victim. See id. at sec. 3663A(b)(1)(B); see  also Brierton, 165 F.3d at 1139. The court may  not consider the defendant's financial status  when calculating this amount. See United States  v. Szarwark, 168 F.3d 993, 997 (7th Cir. 1999).  The government bears the burden of establishing  the amount of loss sustained by the victim. See  18 U.S.C. sec. 3664(e). The district court  resolves any disputes between a defendant and the  government regarding the amount by a  preponderance of the evidence. See id.


34
McIntosh's first complaint about the restitution  order is that the government presented no  evidence as to the amount of loss Bank One  incurred because of McIntosh's actions. McIntosh,  however, did not object to the lack of evidence  on this point either in his written objections to  the PSI or during the sentencing hearing. Because  he failed to contest the amount initially, he has  forfeited his right to challenge its accuracy  before this Court. See United States v. Newman,  144 F.3d 531, 542 n.11 (7th Cir. 1998). Even if  he had not forfeited this issue, McIntosh's  challenge would still fall short. At sentencing,  the district court referred to the PSI, which  contained information regarding Bank One's losses  and McIntosh's financial circumstances. A court  may accept the facts in a PSI as true, unless the  defendant produces some evidence, more than mere  denials, questioning the PSI's accuracy. See  Purchess, 107 F.3d at 1268. McIntosh made no such  challenge, and thus, the district court did not  err by relying on the PSI as support for the  amount Bank One lost due to McIntosh's criminal  activities.


35
McIntosh's other challenge to the district  court's assessment of the amount of restitution  also fails to pass muster. He claims the district  court refused to provide him with credit for the  property (the BMW and $1558.54 in cash) that the  U.S. Marshals seized when they arrested him.  Contrary to McIntosh's assertions, however, the  district court specifically addressed this point  during his sentencing hearing: "The defendant  will be entitled to credit on the restitution for  property that is already in the government's  custody." When the government objected by  pointing out that McIntosh had not signed over  the property nor had it been forfeited, the court  stated: "[I]f he does, he'll be entitled to  credit for it." This excerpt establishes that the  district court did do exactly what McIntosh  claims it did not. We find no error here.


36
The second way in which McIntosh alleges the  district court erred with respect to the order of  restitution focuses on the manner by which the  court considered his financial status. In his  first challenge on this subject, McIntosh asks us  to remand the case because the district court did  not provide an explanation for why it ordered  restitution when it chose to waive a fine.


37
"In each order of restitution, the court shall  order restitution to each victim in the full  amount of each victim's losses as determined by  the court and without consideration of the  economic circumstances of the defendant." 18  U.S.C. sec. 3664(f)(1)(A); see also United States  v. Grimes, 173 F.3d 634, 639 (7th Cir. 1999). The  court, however, should take the defendant's  economic circumstances into account when  considering the manner in which or schedule  according to which the defendant will be ordered  to pay the restitution. See 18 U.S.C. sec.  3664(f)(2); see also Szarwark, 168 F.3d at 997.  The MVRA, enacted in 1996, does not permit a  district court to exercise discretion as to  whether it imposes restitution upon a defendant;  the statutory language clearly states that it  must. See 18 U.S.C. sec. 3663A(a)(1); see also  Brierton, 165 F.3d at 1139.


38
In contrast to the MVRA, the Victim Restitution  Act provides district courts with discretion when  ordering restitution. See United States v.  Zaragoza, 123 F.3d 472, 478 (7th Cir. 1997). If  a court chooses to impose such an order and  simultaneously waives a fine because of the  defendant's economic circumstances, the court  must explain its reasoning. See United States v.  Murphy, 28 F.3d 38, 42 (7th Cir. 1994); United  States v. Berman, 21 F.3d 753, 759 (7th Cir.  1994). The imposition of a fine, like restitution  under the Victim Restitution Act, is within the  discretion of the district court. See 18 U.S.C.  sec. 3572. Thus, waiving a fine because of a  defendant's financial status and imposing an  order of restitution in light of that same status  creates a potential contradiction in sentencing.  In such circumstances, we require the district  court to provide some explanation for the  discrepancy to avoid unexplained contradictions  in judgment. See Berman, 21 F.3d at 759.


39
When a district court orders restitution  pursuant to the MVRA, no such contradiction  exists. The imposition of an order of restitution  is mandatory under the MVRA, but the decision to  waive a fine is discretionary. By imposing  mandatory restitution and waiving the fine, the  district court is merely following Congress's  mandates. While this approach may appear to  foster a contradiction, it is one that Congress  created, not the district court. In addition, we  find no reason that moves us to require a  district court to point out this inherent fact  each time the court reaches such a conclusion.  Thus, we find no error by the district court as  to its imposing restitution under the MVRA and  waiving a fine without providing an express  reason.


40
McIntosh's final objection to the district  court's order of restitution based on his  financial status relates to the court's decision  to require him to pay the restitution  "immediately," even though it had waived a fine  based on his lack of financial resources. We find  no merit to this challenge. "'[I]mmediate  payment' does not mean 'immediate payment in  full;' rather it means 'payment to the extent  that the defendant can make it in good faith,  beginning immediately.'" United States v.  Jaroszenko, 92 F.3d 486, 492 (7th Cir. 1996). The  district court ordered that the restitution be  paid immediately and that McIntosh should "notify  the probation officer of any material changes and  economic circumstances [that] might affect his  ability to pay restitution." Thus, the district  court has given McIntosh the opportunity to  explain his financial circumstances to the  probation officer if problems arise. The  probation officer can then ask the district court  to amend the order of restitution accordingly or  make the order more specific. We have approved  similar approaches in the past, see id.; see also  United States v. Ahmad, 2 F.3d 245, 249 (7th Cir.  1993), and McIntosh presents us with no reason  that we should consider it error now.


41
In sum, the district court did not err when  imposing the order of restitution.

III.  Conclusion

42
We find that the district court did not err by  refusing to grant a two-level downward departure  for acceptance of responsibility because it  determined that McIntosh had attempted to  manipulate the judicial system and did not  express true remorse regarding his actions. Nor  do we believe the district court erroneously  imposed an order of restitution that requires  McIntosh to compensate Bank One for the loss it  entailed due to his fraudulent scheme because  McIntosh failed to object to the amount imposed  at trial and the district court correctly applied  the statutory provisions of the MVRA. Thus, we  AFFIRM the sentence imposed by the district court.


43
ILANA DIAMOND ROVNER, Circuit Judge, dissenting in part.


44
We  have reached a troubling point in our sentencing  jurisprudence when we allow defendants to be  given longer prison terms--here at least fifteen  months longer1--based on the legal challenges  they have made to matters unrelated to their  guilt. I join my colleagues today in affirming  the restitution provisions of McIntosh's  sentence. But I respectfully part ways with them  on the acceptance of responsibility question.


45
When a court denies a defendant credit for  acceptance of responsibility, it typically is  because he has refused to genuinely admit his  guilt. That is not so here. From virtually the  outset of this prosecution, Carlton McIntosh has  candidly acknowledged his criminal misdeeds to  the government, and ultimately of course he did  so to the court when he formally pleaded guilty.  This course of conduct constitutes "significant  evidence of acceptance of responsibility." See  U.S.S.G. sec. 3E1.1, comment. (n.3) (1998); see  also id. (n.1(a)). The district judge nonetheless  refused him a sentencing reduction for acceptance  of responsibility, not because of anything he  said or did not say about his criminal conduct,  but because he filed two motions (one of them  through his attorney) seeking dismissal of the  indictment on legal grounds. I cannot join my  colleagues in endorsing this aspect of the  sentence.


46
I agree that under the right circumstances, the  content of a defendant's motion, objection, or  other pleading can reflect a refusal to accept  responsibility for his actions. Our prior  decisions recognize that when a defendant makes  arguments that, in effect, contest his  responsibility for the offense of conviction or  conduct that is relevant to it (see U.S.S.G. sec.  1B1.3), the district court is free to deny him  the sentencing reduction under Guidelines section  3E1.1(a) just as it may when the defendant, in  allocution, deflects blame for his actions. See,  e.g., United States v. Purchess, 107 F.3d 1261,  1266-69 (7th Cir. 1997) (defendant's objections  to pre-sentence report challenged facts related  to relevant conduct); United States v. Trussel,  961 F.2d 685, 691 (7th Cir. 1992) (defendant  filed motion seeking to withdraw guilty plea  based on assertions in conflict with statements  he made under oath at change of plea hearing).  But we have never before today suggested that a  defendant may be denied credit for acceptance of  responsibility based solely on legal or  procedural arguments that in no way question his  own conduct. Although my colleagues, like the  district judge, posit that McIntosh pursued his  motions in a manner that was inconsistent with  taking responsibility for his crime (ante at 1002), the record simply does not bear them out on  that point. The decision to affirm the district  court without that support sets an alarming  precedent that may discourage attorneys from  vigorous advocacy on behalf of their clients and  penalize defendants for their uninformed, pro se  pleadings.


47
My colleagues rightly emphasize at the outset  that the district court's assessment of a  defendant's acceptance of responsibility is  entitled to great deference. Ante at 999. I could  not agree more. Judge Flaum, Judge Kanne, and I  have all sat where Judge Hamilton sits today. We  know first-hand the weighty burden of sentencing.  Collectively, we have looked across the bench  hundreds of times at the face of a person we are  about to send to prison. We have seen the teary  eye and trembling hand, heard the quaking voice.  We have noted the declaration of remorse, the  passionate pledge that this crime was the last.  And we have witnessed more than one such  defendant later return to crime at the first  opportunity. Experience has therefore taught us  that not all expressions of remorse are genuine;  and yet we also know how hard it can be to  determine which ones are real. So if this were a  case in which Judge Hamilton had listened to  McIntosh's allocution, looked him in the eye, and  found sincerity lacking in his expressions of  culpability and remorse, then I would be the  first to say to say that we should defer to his  judgment. See, e.g., Purchess, 107 F.3d at 1269  (Rovner, J.); see also United States v. Zaragoza,  123 F.3d 472, 480 (7th Cir.), cert. denied, 522  U.S. 923, 118 S. Ct. 317 (1997); United States v.  Dvorak, 41 F.3d 1215, 1217 (7th Cir. 1994);  United States v. Kerr, 13 F.3d 203, 205 (7th Cir.  1993), cert. denied, 511 U.S. 1060, 114 S. Ct.  1629 (1994).


48
In this case, however, the district judge cited  two--and only two--reasons for finding that  McIntosh had not accepted responsibility for his  crimes, and those are the legal challenges that  he raised in his Speedy Trial Act motion and his  pro se motion to dismiss the indictment. If our  deference is genuine, then it is on those two  motions that we must focus. There were, as my  colleagues note, other factors argued with  respect to the acceptance assessment. But Judge  Hamilton expressly disclaimed any reliance upon  them. His words are worth repeating:


49
I am not considering the give and take in plea  negotiations. I am not considering objections  raised to the presentence report's guideline  calculations. . . .


50
What I do find difficult--well, for me  impossible to reconcile with genuine remorse in  this case--is Mr. McIntosh's efforts to seek  dismissal in this case on speedy trial act  grounds, and then on an extraordinarily technical  reading of the indictment even after he had pled  guilty.


51
R.47 at 23-24. My colleagues also point out that  the district court "has a responsibility to look  at the whole picture" in evaluating the  defendant's remorse. Ante at 1001. "[I]t was no  doubt significant," they reason, that "McIntosh  habitually employed deceit" in defrauding  financial institutions (ante at 1001); and his  criminal history--in particular his habit of  committing new crimes while free on bond or  supervised release from other charges--"would  certainly be useful to place in context  McIntosh's profession of remorse in this case and  conduct during the course of the proceedings  below" (id.). All well and good. But as my  colleagues candidly acknowledge, the district  judge in fact did not consider McIntosh's prior  crimes in deciding whether he had genuinely  accepted responsibility. See ante at 1001. We must  therefore resist the urge to bolster the district  court's findings with rationale that it might  have, but did not, articulate. We do as great a  disservice to the discretion of the lower court  when we posit grounds that the district judge  never relied on as when we ignore those on which  the judge actually did rely.


52
I turn first to the Speedy Trial Act motion.  One might think, after reading the sentencing  transcript and the majority opinion, that  McIntosh spent ten months driving a hard bargain  with the government and then, ignoring the fact  that he himself was partly responsible for the  protracted nature of the plea negotiations, did  a sudden about face and filed a surprising and  essentially inappropriate motion invoking the  Speedy Trial Act. See ante at 1001-02. In other  words, to quote the prosecutor, McIntosh "put  everybody in a trick bag . . . ." R.47 at 20. I  have no doubt that the Speedy Trial Act motion  was indeed a surprise, for if there is one thing  that this record makes crystal clear, it is that  no one was paying any attention whatsoever to the  speedy trial clock. As to the propriety of the  motion, two points must be made. First, as the  record reveals, a serious Speedy Trial Act  question was presented in this case. Second,  although it was McIntosh's counsel who filed and  prosecuted the Speedy Trial Act motion, the  district court never made the inquiry required by  our opinion in Purchess before holding McIntosh  himself responsible for this motion.


53
It might surprise the reader, as it did me, to  learn that in the ten months that passed between  the filing of the information and the grand  jury's subsequent return of an indictment,  McIntosh did not appear in court so much as once.  See R.11, Docket Sheets for Case No. IP97-CR-  0070-01-H/F. No petition to enter a plea of  guilty was filed with the information, as is  typically the case. See R.19 at 4. Indeed,  McIntosh was never asked, on the record, how he  wished to plead to the information. In apparent  violation of 18 U.S.C. sec. 3161(a), the case was  never scheduled for trial. R.19 at 5. No hearing  was conducted during this period to ascertain the  status of the case. R. 11, Docket Sheets for Case  No. IP97-CR-0070-01-H/F. And at no time was an  order entered tolling the 70-day period in which  the Speedy Trial Act requires a trial. Id.; see  18 U.S.C. sec. 3161(c)(1).


54
Under these circumstances, it is not at all  hard to appreciate why the new attorney appointed  to represent McIntosh after the indictment was  filed concluded that there was a Speedy Trial Act  problem here. Neither he nor anyone else, of  course, was under any illusion as to what had  been going on for ten months--everyone understood  that a guilty plea had been anticipated, that the  plea negotiations were complex, and that  ultimately talks had broken down. But the fact  that close to a year had passed without a plea,  without so much as a status hearing, without any  order establishing reasons for tolling the speedy  trial clock, all but invited his motion to  dismiss. And it was far from clear that the  motion lacked merit. The parties' memoranda  below, as well as the transcript of the  evidentiary hearing that the court conducted on  the motion, reflect sharply divergent views,  indeed a general befuddlement, even as to the  threshold question of when and whether the speedy  trial clock had begun to run. See R.11 at 4-5; R.  15 at 8; R. 19 at 9; R.54 at 41, 46-48, 50, 51,  54-58; see also id. at 59 (district judge: "I'm  not going to try to rule today, I assure you,  given the puzzle this presents under various  provisions of the Speedy Trial Act."). The  government, for example, argued not that the  lengthy plea negotiations had stopped the speedy  trial clock, but rather that the clock had never  begun to tick. R.15 at 8. That remarkable view  Judge Hamilton quite rightly rejected. See R.19  at 9-10, citing, among other cases, United States  v. Bailey, 957 F.2d 439, 443 (7th Cir.), cert.  denied, 505 U.S. 1229, 112 S. Ct. 3053 (1992).  Indeed, Judge Hamilton himself ultimately agreed  that the 70-day period on the bank fraud charge  contained in the information had, in fact,  expired and that the Speedy Trial Act had thus  been violated. R.19 at 10. He simply concluded  that a dismissal of the original information, had  it been sought before the indictment was filed,  would appropriately have been granted without  prejudice, leaving the door open to the charge of  money laundering that was later asserted in the  indictment. R.19 at 13. As a practical matter,  then, Judge Hamilton did not believe it  appropriate to grant the motion to dismiss the  indictment, notwithstanding the Speedy Trial Act  violation. Id. at 13, 14-15.2


55
The most that can be said in criticism of the  Speedy Trial Act motion is that McIntosh and his  counsel waited until so late in the day to file  it. Yet, the reasons for the delay in pursuing  the motion are clear and, so far as the record  reveals, they have nothing to do with McIntosh  himself. First, speedy trial disputes typically  arise when, as here, the court and counsel fail  to make a contemporaneous record as to the status  of the speedy trial clock. When the court  conducts regular status hearings in advance of  trial, identifies the matters (such as pretrial  motions) that will toll the clock, and ascertains  that everyone is on the same page as to the time  remaining for trial, there will not be the kinds  of lingering doubts and questions that invite an  eleventh-hour Speedy Trial Act motion. I realize,  of course, that Judge Hamilton did keep track of  the case informally, through his staff. See R.15  at 4; R.54 at 36. But had he made an appropriate  record while the plea negotiations were ongoing,  he would have obviated any need for an after-the-  fact inquiry as to whether and when the speedy  trial clock had expired. Second, when McIntosh's  current counsel came into the case--after the  plea negotiations had come to an impasse and the  grand jury had returned the indictment--he  recognized the speedy trial question in short  order and pursued it promptly. See R.13 at 2  para.para. 5-6. It turns out that McIntosh's  previous counsel, much like the prosecutor, had  labored under the impression that the speedy  trial clock had not begun to run with the filing  of the information (see R.19 at 9; R.54 at 41,  46-48, 50, 51, 54-58)--an understanding that was  in error. See R.19 at 9-10. Third, as the  testimony presented to Judge Hamilton on this  issue makes clear, McIntosh himself never agreed  to waive his rights under the Speedy Trial Act.  R. 54 at 41. Consequently, I fail to see how he  can be blamed for asserting those rights even at  a late date, when his counsel did not recognize  the speedy trial problem any sooner.


56
Equally troubling is the fact that the court  held McIntosh responsible for the speedy trial  motion without ever ascertaining the extent to  which McIntosh, as opposed to his counsel, was  responsible for the motion. See United States v.  Purchess, supra, 107 F.3d at 1268-69. In  Purchess, we recognized the possibility that an  attorney may make certain factual assertions on  behalf of his or her client--concerning the  offense of conviction or relevant conduct, in  particular--that are inconsistent with the  defendant's acceptance of responsibility. Id. at  1266-67. Yet, "the assessment of acceptance of  responsibility is typically an assessment  personal to the defendant." Id. at 1267 (emphasis  mine). Therefore, where the defendant is  otherwise silent as to his attorney's  representations, the court has a duty to inquire  whether the defendant understands and agrees with  what his attorney is saying. Id. at 1268-69. If  so, the attorney's words "can be and should be  attributed to [the defendant]." Id. Absent such  an endorsement by the defendant himself, the  assertions should be disregarded. Id. Here, of  course, the speedy trial motion made no factual  assertions at all regarding McIntosh's conduct;  it was simply an assertion of his statutory right  to a speedy trial. I have my doubts as to whether  such legal or procedural challenges, absent a  showing of bad faith, are even relevant to the  acceptance of responsibility determination. See,  e.g., Purchess, 107 F.3d at 1267 ("the district  court should not deny the reduction for  acceptance simply because the defendant  challenges a legal conclusion drawn from the  facts the defendant admits"); see also United  States v. Wright, 133 F.3d 1412, 1416 (11th Cir.)  (Kravitch, J., dissenting) ("because such a  holding would create constitutional infirmities  in the Sentencing Guidelines, other circuits have  concluded that legal challenges alone cannot form  the basis for a denial of a downward adjustment  for acceptance of responsibility") (collecting  cases), cert. denied, 119 S. Ct. 217 (1998). But  assuming that they are, the district court was  obliged before holding McIntosh responsible for  the motion to confirm on the record that McIntosh  himself fully appreciated and embraced the  motion. Purchess, 107 F.3d at 1268-69. Having  failed to make this inquiry of McIntosh, the  court could not rely upon the speedy trial motion  as a basis for denying McIntosh credit for  acceptance of responsibility.


57
The other motion that the district court cited  as evidence that McIntosh had not accepted  responsibility for his offense was a pro se  motion, made by way of a letter, that in relevant  part asked the court to dismiss the indictment  because it did not allege that Bank One, from  which McIntosh had defrauded the money, was a  federally insured institution. See 18 U.S.C.  sec.sec. 1957(a) & (f)(1), 1956 (c)(6); 31 U.S.C.  sec. 5312(a)(2). Judge Hamilton deemed the motion  inconsistent with acceptance of responsibility  because, based on "an extraordinarily technical  reading of the indictment," it sought to dismiss  the prosecution after McIntosh had already  pleaded guilty. R.47 at 24. Once again, however,  when one considers carefully what the record  reveals about McIntosh's pro se motion, one finds  no support for the notion that McIntosh was  attempting to deflect responsibility for his  criminal acts.


58
First, the argument that McIntosh advanced in  the motion was that the indictment, in omitting  to allege that Bank One was insured by the  Federal Deposit Insurance Corporation, failed to  state a federal offense. In pleading guilty, of  course, McIntosh had waived any non-  jurisdictional defects in the indictment. E.g.,  United States v. Cain, 155 F.3d 840, 842 (7th  Cir. 1998). So one might argue that a belated  attempt to capitalize on such defects amounts to  an inappropriate attempt to make an end run  around the plea. But McIntosh's motion posited a  jurisdictional defect in the indictment, and we  have held that the defendant retains the right to  raise such fundamental defects even after  pleading guilty. United States v. DiFonzo, 603  F.2d 1260, 1263 (7th Cir. 1979), cert. denied,  444 U.S. 1018, 100 S. Ct. 672 (1980); accord  United States v. Spinner, 180 F.3d 514, 516 (3d  Cir. 1999) (collecting cases); see also Fed. R.  Crim. P. 12(b)(2) (motions asserting that  indictment fails to state offense "shall be  noticed by the court at any time during the  pendency of the proceedings"). The Guidelines  themselves recognize that the defendant is  entitled to pursue an issue unrelated to factual  guilt without forfeiting credit for acceptance of  responsibility. Thus, the commentary acknowledges  that even a defendant who insists on a trial may  yet be eligible for the reduction if he does so  "to assert and preserve issues that do not relate  to factual guilt (e.g., to make a constitutional  challenge to a statute or a challenge to the  applicability of a statute to his conduct)."  U.S.S.G. sec. 3E1.1, comment. (n.2). Thus,  McIntosh had every right to question the  jurisdictional sufficiency of the indictment  notwithstanding his guilty plea.


59
Second, to the extent that the motion lacked  merit, as the district court suggested, one must  note that McIntosh himself withdrew the motion at  the very outset of the sentencing hearing, when  the court first mentioned it. R.47 at 2. As  McIntosh explained to the court: "I talked it  over with my attorney and I found out that I was  maybe wrong about the situation." Id. So McIntosh  did precisely what Rule 11 directs a litigant to  do in the civil context when he has filed a  frivolous pleading--he retracted it. See Fed. R.  Civ. P. 11(c)(1)(A). Actually, so far as the  record reveals, he did the civil rule one better,  by withdrawing the motion before either the court  or the government indicated that they viewed the  motion as lacking merit. See id. In a civil case,  such prompt action typically would grant the  filer of the pleading "safe harbor" from  sanctions, and for the obvious reason--the  parties and the court are spared the effort and  expense of litigating a groundless contention.  See Rule 11, Advisory Committee Notes (1993  Amendments).3 Here the withdrawn motion, in  conjunction with the Speedy Trial Act motion,  bought McIntosh another fifteen months in jail.


60
Third, the motion in no way disputes McIntosh's  criminal conduct. Because McIntosh himself  authored the motion, I have no quarrel with the  court's authority to consider what the motion had  to say about his remorse and acceptance of  responsibility. A defendant certainly can be held  responsible for his own choices; and if he opts  to file a pleading that takes issue with his  factual guilt, the court can treat that as direct  evidence that he has not come to terms with his  crime. See, e.g., United States v. Trussel,  supra, 961 F.2d at 691 (district court properly  relied on assertions made in defendant's pro se  request to withdraw guilty plea). In this  respect, McIntosh's pro se motion stands on a  different footing than the Speedy Trial Act  motion that his attorney filed; there is, in  other words, no need for the type of inquiry that  Purchess demands. See 107 F.3d at 1268-69. Yet,  McIntosh's motion posited a jurisdictional defect  in the indictment, nothing more.


61
The most for which McIntosh can legitimately be  criticized, then, is filing a motion without  seeking or heeding the advice of his attorney. I  can certainly appreciate why a court might find  that course of action frustrating; and had  McIntosh not withdrawn the motion, the district  judge would have been within his rights to insist  that McIntosh either leave the motions practice  to his counsel or choose to proceed without  representation. See Hayes v. Hawes, 921 F.2d 100,  102 (7th Cir. 1990). But I am perplexed as to why  a single pro se pleading, which had nothing  whatsoever to say about the defendant's factual  culpability and which was voluntarily withdrawn  before the court wasted so much as a minute of  time addressing it, could be construed as a  refusal to accept responsibility. The reality is,  defendants often harbor suspicions at one point  or another that their attorneys are not  vigorously pursuing every possible argument on  their behalf. Regrettably, those doubts are  sometimes justified. E.g., Hall v. Washington,  106 F.3d 742 (7th Cir.), cert. denied, 522 U.S.  907, 118 S. Ct. 264 (1997); Mason v. Hanks, 97  F.3d 887 (7th Cir. 1996). I don't find it at all  surprising that someone like McIntosh, after  spending a few hours in a law library, would  think the indictment flawed in this case. The  statute, after all, criminalizes a particular  kind of "monetary transaction," defined as a  transaction that, among other things, takes place  through a "financial institution," which a series  of cross-references in turn reveals to be a  federally insured bank. See 18 U.S.C.  sec.sec.1957(a) & (f)(1); 1956(c)(6); 31 U.S.C.  sec. 5312(a)(2)(A); 12 U.S.C. sec. 1813(h).  Because the indictment is devoid of any  allegation concerning Bank One's insured status,  a reasonable layperson--for that matter, an  inexperienced lawyer-- might readily think the  indictment deficient. McIntosh's capable counsel  saw the hole in the argument--Bank One in fact is  a large, federally insured bank, and even if the  indictment were technically flawed in failing to  so allege, dismissal would be a pyrrhic victory  given the government's ability to supersede the  indictment. See R.47 at 3-4. Sooner rather than  later, McIntosh came to appreciate this point.  See id. at 4-5 ("I thought that the indictment  didn't read a federal charge, but he informed me  the indictment could be superseded, so that's why  I agree with my lawyer at this point in time and  go on with sentencing."). No harm was done, and  no false protestation of innocence was made.


62
A final notion remains--that irrespective of  their merits, the Speedy Trial Act motion and the  motion attacking the indictment evinced an effort  to "manipulate" the system. Ante at 1001-02; R.47  at 24. Filing motions and invoking a variety of  legal rights in an effort to outmaneuver one's  opponent and secure a favorable outcome is a  staple in both civil and criminal cases. If that  conduct amounts to manipulation, then  manipulation is the hallmark of our adversarial  system of justice. Unless and until conducting  oneself like a lawyer becomes a basis for meting  out longer prison terms, the mere fact that a  defendant files a motion that, if successful,  might result in the dismissal of the case cannot  legitimately suffice to deny him credit for  acceptance of responsibility.


63
As our cases make clear, the only  "manipulation" that is relevant to acceptance of  responsibility is a motion, objection, or  argument that in some way contests the  defendant's factual guilt. That is the common  theme sounded in each of the three precedents  that my colleagues cite: Trussel, Purchess, and  Robinson. See ante at 1002. In Trussel, the  district court denied the defendant credit for  acceptance of responsibility in part because he  filed a motion to withdraw his guilty plea,  contending that the government had entrapped him  and that his lawyers had been ineffective in  pursuing this line of defense. Yet, just two  months earlier, at the change of plea hearing,  the defendant had indicated under oath that he  was "fully satisfied" with his lawyers' advice  and there was nothing that he had asked of them  that they had not done. See 961 F.2d at 688-89.  In fact, the court had previously continued the  change of plea hearing so that the defendant  could discuss the entrapment defense with his  counsel. Id.


64
Against this backdrop, the district  judge believed that the motion to withdraw the  plea amounted to "prevarication" and an attempt  to "manipulate" and "whipsaw" the court. Id. at  689, 691. We agreed and found no error in the  decision not to credit the defendant for  acceptance of responsibility. We noted that "[the  defendant's] behavior was akin to (though not  exactly the same as) obstructing justice;  normally, a defendant who obstructs or attempts  to obstruct justice is not entitled to a  reduction for accepting responsibility." Id. at  691, citing U.S.S.G. sec. 3E1.1 (comment.) (n.4).  In Purchess, the defendant's attorney filed  written objections to the pre-sentence report  contesting certain facts involving his relevant  conduct and pursued those objections at the  sentencing hearing; meanwhile the defendant  himself remained silent. In passing sentence, the  district judge refused to credit the defendant  for acceptance, in part because the defendant,  through his counsel, had contested his relevant  conduct. See 107 F.3d at 1264-65. On appeal, we  characterized this defense strategy as an attempt  "to manipulate the Guidelines." Id. at 1267. We  thus agreed that the district court could refuse  to grant the acceptance reduction based on that  strategy, so long as the court first ascertained  that the defendant himself understood and  embraced his attorney's arguments. Id. at 1267-  69. Finally, in Robinson, we found no plain error  in the district court's refusal to reduce the  defendant's sentence by an additional third level  for timely acceptance of responsibility (see  U.S.S.G. sec. 3E1.1(b)(2)) based on extensive  pre-trial proceedings indicating that the  defendant had planned to challenge the  government's evidence against her. 20 F.3d at  274-75.4 In all three of these cases, then, the  motions and arguments that foreclosed the  reduction for acceptance of responsibility in one  way or another signaled the defendant's wish to  contest her criminal culpability.


65
The record in this case lends no support to the  proposition that McIntosh attempted to  "manipulate" the court or the judicial system in  the manner that our opinions on this subject have  recognized. Neither of McIntosh's two motions  purported to deny his guilt; in fact, neither one  of them addressed his conduct at all. True, both  motions sought dismissal of the case, and in that  sense they can be viewed as an effort to "beat  the rap." But both motions were based on rights  that the law guarantees to the guilty as well as  the innocent. The first was made by an attorney  who was new to the case and had an eye for a  Speedy Trial Act problem that others had missed  and which the district court itself ultimately  acknowledged. R.19 at 10. McIntosh himself  authored the second motion, but withdrew it on  his own initiative after his attorney led him to  appreciate its lack of merit. If these two  motions suffice as a basis to withhold credit for  acceptance of responsibility, then I can no  longer discern a meaningful limit on a court's  ability to penalize a defendant for asserting his  constitutional, statutory, or procedural rights.


66
I speak without the authority of a majority  today when I urge my colleagues on the district  court to tread with the utmost care in this area.  As we recognized in Purchess, the defendant is  entitled to make legal arguments without putting  at risk the credit that the Sentencing Guidelines  would normally grant him for a candid admission  of guilt. "Otherwise, the constitutional rights  to effective assistance of counsel and due  process are illusory." 107 F.3d at 1267. A court  acts well within the boundaries of its discretion  when it concludes, based on pleadings that in  some concrete way contradict the admission of  guilt, that the defendant has not genuinely  accepted responsibility for his criminal actions.  As I have explained at length, however, the two  motions that McIntosh and his counsel filed  simply do not fall into that category.


67
Because the record lends no support to the  proposition that McIntosh was attempting to shirk  blame for his conduct, I believe the appropriate  course is for us to vacate the sentence and to  remand for re-sentencing. As that is not the  conclusion my colleagues have reached, I  respectfully dissent.



Notes:


1
 The sentencing range that the district court  referenced was 63 to 78 months, based on an  adjusted sentencing level of 19 and a criminal  history category of VI. The court imposed the  maximum sentence of 78 months. Had the court  granted McIntosh the two-level reduction for  acceptance of responsibility, the sentencing  range would have been 51 to 63 months. See  U.S.S.G. Ch. 5, Pt. A (Sentencing Table) (1998).


2
 Judge Hamilton alternatively reasoned that  because the bank fraud charge contained in the  information and the money laundering charge  asserted in the later-filed indictment were  distinct offenses, any Speedy Trial Act violation  vis a vis the former would not preclude the  government from pursuing the latter. R.19 at 11-  14.


3
 Cf. United States v. Garrett, 90 F.3d 210, 214  (7th Cir. 1996) (clear error to deny third-level  credit for acceptance of responsibility based on  uncounseled, pro se motion to withdraw guilty  plea that defendant made no attempt to pursue  after it was stricken for failure to include  original signature and new attorney was appointed  to represent defendant).


4
 It is important to note, however, that the  district court did grant the defendant the  standard two-level reduction for acceptance of  responsibility that McIntosh seeks here. See 20  F.3d at 273-74. Robinson's discussion of the  defendant's pre-trial motions is therefore  limited to cases involving sentencing reductions  by a third level for defendants who give the  prosecution timely notice of their intent to  plead guilty and thereby spare the government the  need to prepare for trial. That extra reduction  is not at issue in this case.


