                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 99-1940
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of South Dakota.
Kenneth Goings,                         *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: October 19, 1999

                                  Filed: January 4, 2000
                                   ___________

Before WOLLMAN, Chief Judge, HEANEY and LOKEN, Circuit Judges.
                             ___________

WOLLMAN, Chief Judge.

      Kenneth Goings appeals the sentence imposed pursuant to his plea of guilty to
involuntary manslaughter, challenging the district court’s1 decision increasing his
criminal history category, departing upward for injuries arising out of his offense of
involuntary manslaughter, and denying his request for a downward adjustment for
acceptance of responsibility. We affirm.



      1
       The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota.
                                            I.

       Goings was indicted pursuant to 18 U.S.C. §§ 1112 and 1153 for involuntary
manslaughter after he lost control of his vehicle in Indian country, killing one passenger
and injuring himself and two others. At the time of the accident, he had a blood-alcohol
level well above the legal limit and was racing another vehicle on a narrow road.
Goings turned himself in, pleaded not guilty, and was released for enrollment in an
alcohol treatment program, which he did not complete.2 Following his subsequent
arrest for violation of release conditions, Goings pled guilty and was sentenced to 41
months’ imprisonment. He now appeals this sentence.

                                            II.
                                            A.

      We turn first to the two upward departures. We review sentencing departures
under a unitary abuse-of-discretion standard. See Koon v. United States, 518 U.S. 81,
96-100 (1996); United States v. Washington, 109 F.3d 459, 462 (8th Cir. 1997).
Although this standard is “unitary,” it is also nuanced: while acknowledging that
departure questions are fact-intensive, Koon recognized that appellate courts owe no
deference to district courts concerning issues such as mathematical errors in applying
the guidelines or consideration of factors that the guidelines classify as irrelevant. See
Koon, 518 U.S. at 98 (mathematical errors), 100 (“The abuse of discretion standard
includes review to determine that the discretion was not guided by erroneous legal
conclusions.”).

      2
       The presentence report indicated that Goings was expelled from the program
and included details concerning the circumstances underlying his expulsion. However,
Goings objected to much of this evidence, and because he has not had an opportunity
to explain his objections in court, we will not treat the information as part of the record
on appeal. See United States v. Garrett, 161 F.3d 1131, 1132 (8th Cir. 1998) (district
court may not rely on objected-to PSR evidence in absence of a hearing).

                                           -2-
                                           1.

       Goings contends that the district court improperly shifted his criminal history
category from III to category IV. We disagree. The sentencing guidelines permit
courts to increase a defendant’s criminal history category where “reliable information
indicates” that the presumptive category “does not adequately reflect the seriousness
of the defendant’s past criminal conduct or the likelihood that the defendant will
commit other crimes.” See U.S.S.G. § 4A1.3 (policy statement); United States v.
Drapeau, 110 F.3d 618, 620 (8th Cir. 1997); Washington, 109 F.3d at 462. In
determining whether departure is warranted in a particular case, district courts may
consider the similarity of past offenses to the instant offense and may reasonably
conclude that there exists a heightened need for deterrence or that leniency has not been
effective. See United States v. Estrada, 965 F.2d 651, 653-54 (8th Cir. 1992); United
States v. Lang, 898 F.2d 1378, 1380 (8th Cir. 1990). It is also permissible for district
courts to take into account any “evidence of obvious incorrigibility,” including ongoing
behavior patterns observed subsequent to the instant indictment. See United States v.
Cook, 972 F.2d 218, 222 (8th Cir. 1992).

       The district court based its decision to increase Goings’s criminal history
category on the likelihood that Goings would commit other crimes in light of the
similarity of past offenses to the instant offense. Before his indictment for involuntary
manslaughter, Goings had been convicted of various crimes on seven previous
occasions.3 Because each of these prior convictions resulted in less than 60 days’
imprisonment, Goings’s presumptive criminal history category was III, based on a total

      3
        Goings’s presentence report indicated that he was convicted of the following
offenses: petty theft (3/91); driving under the influence (DUI) (1/92, 12/92, and 12/94);
possession of marijuana and/or use or possession of drug paraphernalia (2/92 and
6/93); possession of a controlled substance (12/93); and theft from a building (3/95).
The presentence report treated Goings’s 1995 conviction for theft from a building and
his 1994 DUI conviction as one offense because they arose out of the same incident.

                                          -3-
of four criminal history points for all seven offenses. See U.S.S.G. § 4A1.1(c)
(imposing a four-point “cap” for all past offenses resulting in less than 60 days’
imprisonment). Six of these seven prior offenses involved drugs or alcohol, indicating
a serious, longstanding substance abuse problem that Goings had failed to address.
Finding that this circumstance was sufficiently unusual to warrant departure, the district
court moved Goings up to category IV based on a total of seven criminal history points
(one for each prior offense). We conclude that the district court did not abuse its
discretion in doing so. Because of the similarity between Goings’s past offenses and
the current offense and the chronic nature of his substance abuse, the district court was
justified in concluding that the “capped” criminal history did not adequately reflect the
likelihood of reoffense. See U.S.S.G. § 4A1.3 (policy statement).


                                           2.

       Goings next challenges the district court’s decision to depart upward two
offense levels for each injured passenger. The revised presentence report (PSR)
reveals that two passengers, in addition to Goings and the person who was killed, were
ejected from the vehicle. One of them, Duane Brewer, suffered cracked vertebrae,
required stitches, and was hospitalized for three days. The other, Frank Goings, is
referred to simply as one of “two injured males” found at the accident scene. The
report indicates that Frank Goings was not hospitalized.4

       The sentencing guidelines contemplate departures based on “significant physical
injury” to others resulting from the offense. See U.S.S.G. § 5K2.2 (policy statement).
Section 5K2.2 also recommends that courts calibrate such departures to the seriousness


      4
        We construe Goings’s argument as challenging only the upward departure for
injuries to Frank Goings. In reference to Duane Brewer’s injuries, Goings conceded
that “[r]easonable minds could disagree as to whether cracked vertebrae constitute
significant bodily injury.” See Appellant’s Br. at 18.

                                           -4-
of the injury: “If the injury is less serious . . . a less substantial departure would be
indicated.” Id. Goings points out that the district court appears not to have followed
this recommendation in the current case: despite the difference in severity between
Duane Brewer’s injuries and Frank Goings’s injuries, the district court departed
upward the same amount – two offense levels – for each.

       We do not find the two-level departure for injuries to Frank Goings to constitute
reversible error. The provision regarding significant physical injury is not a guideline
but a policy statement. See U.S.S.G. § 5K2.2. Policy statements are binding only if
they interpret a guideline or prohibit district courts from taking a specified action. See
United States v. Levi, 2 F.3d 842, 845 (8th Cir. 1993) (citing Stinson v. United States,
508 U.S. 36, 42 (1993)). Because section 5K2.2 does neither, district courts may
choose not to follow its recommendations provided the decision to do so does not
otherwise constitute an abuse of discretion. The district court did not abuse its
discretion in this case, for the PSR’s description of Frank Goings as an “injured male”
who was “ejected” from the vehicle was sufficient to support the two-level upward
departure for his injuries.

                                           B.

       Goings contends that the district court erred by denying his request for a
downward adjustment based on acceptance of responsibility. We disagree, for we find
that the district court’s decision not to grant the reduction was not clearly erroneous.

       As an initial matter, the government notes that Goings’s written plea agreement
contained a waiver of the right to appeal this issue. Generally, we do not consider
issues that a defendant knowingly and voluntarily waived in a plea agreement. See
United States v. Stuttley, 103 F.3d 684, 686 (8th Cir. 1996); United States v. Rutan,
956 F.2d 827, 829 (8th Cir. 1992). Goings responds by contending that the
government breached its agreement to recommend a downward adjustment for

                                           -5-
acceptance of responsibility “unless there is significant evidence disclosed in the
presentence investigation to the contrary.” At the time the government entered into this
agreement it was already aware that Goings had not completed the alcohol treatment
program, and the government does not now claim that the PSR disclosed any significant
new evidence regarding acceptance of responsibility. Nonetheless, at sentencing the
government did not recommend the reduction. We do not agree with the government’s
argument that the district court did not give it an opportunity to be heard on the
acceptance issue, for after announcing its factual findings the district court asked both
the prosecutor and defense counsel if they wished to make any response to the findings,
to which the prosecutor replied, “None by the government.” We believe that the
government was obligated to call the court’s attention to the fact that it had not yet
heard the government’s position with respect to the matter of acceptance of
responsibility. This the government failed to do.

       Where it is clear that the government violated the terms of a plea bargain, the
defendant is typically given the option of withdrawing his guilty plea or demanding
specific performance. See Santobello v. New York, 404 U.S. 257, 262-63 (1971);
United States v. Barresse, 115 F.3d 610, 612 (8th Cir. 1997). Goings asks that we
remand for specific performance of the plea agreement, which is generally the preferred
remedy where breach has occurred. See Margalli-Olvera v. INS, 43 F.3d 345, 354-55
(8th Cir. 1994). “It is, however, well established that we may affirm a sentence on any
grounds supported by the record,” United States v. Varela, 138 F.3d 1242, 1244 (8th
Cir. 1998) (citation omitted), and accordingly we proceed to the merits of the district
court’s decision not to award the downward adjustment.

       We believe that remanding this case would constitute an exercise in futility. The
district court was not bound by the terms of the plea agreement. See Jones v.
Petrovsky, 631 F.2d 595, 597 (8th Cir. 1980). Moreover, a defendant is not
automatically entitled to a reduction for acceptance of responsibility on the basis of
having entered a guilty plea. See United States v. Wivell, 893 F.2d 156, 158-59 (8th

                                          -6-
Cir. 1990). Instead, the burden of proof falls upon the defendant to demonstrate that
he has accepted responsibility for his actions. See United States v. Makes Room, 49
F.3d 410, 416 (8th Cir. 1995). We review a decision not to adjust downward for clear
error. See United States v. Hawkins, 78 F.3d 348, 352 (8th Cir. 1996). Acceptance
of responsibility is a question of fact, and we will not reverse the district court on this
issue unless its conclusions are “without foundation.” See United States v. Allen, 886
F.2d 143, 146 (8th Cir. 1989); Comment to U.S.S.G. § 3E1.1(5) (“The sentencing
judge is in a unique position to evaluate a defendant’s acceptance of responsibility. For
this reason, the determination of the sentencing judge is entitled to great deference on
review.”).

       It is clear that the government’s failure to make an oral recommendation at
sentencing had little if any effect on the court’s decision to deny the reduction. The
court was aware of the terms of the plea bargain, and at sentencing Goings’s counsel
reminded the court that the government had agreed that his client should receive a
reduction for acceptance of responsibility. See Sent. Tr. at 10. The court had also read
the PSR, and the government possessed no new information beyond what the court
already knew.

        We believe that the district court’s conclusion that Goings had not demonstrated
acceptance of responsibility was well warranted by the facts of this case. The
sentencing guidelines explicitly encourage district courts to consider the defendant’s
prompt and voluntary surrender to authorities and post-offense rehabilitative efforts in
determining whether the defendant has demonstrated acceptance of responsibility. See
Comment to U.S.S.G. § 3E1.1(1). Because Goings’s crime of involuntary manslaughter
involved intoxication, his failure to complete the alcohol treatment program amounted
to evidence that he did not yet appreciate the gravity of his criminal conduct.
Moreover, Goings’s premature exit from the program constituted the violation of a
court order and served as grounds for the termination of his conditional release, leading
to his subsequent rearrest. Given these circumstances, the district court’s decision not

                                           -7-
to grant the downward adjustment was not “without foundation.” See Allen, 886 F.2d
at 146. In so holding, however, we do not mean to say that failure to complete an
alcohol treatment program will necessarily preclude a reduction for acceptance of
responsibility in every case, for there may be situations in which such a failure may be
excusable in light of the circumstances giving rise to the noncompletion of the program.

       Finally, the sentence imposed represented the bottom end of the range for offense
level 18 (41-51 months), which coincided with the top end of the range for offense level
16 (33-41 months). See U.S.S.G. § 5A (sentencing table). In announcing its intention
to depart upward, the district court stated its intention to impose a sentence at the low
end of the guideline range for offense level 18, so it is clear beyond doubt that it would
have imposed the same sentence had it granted a two-level reduction for acceptance of
responsibility. Thus, any error resulting from the government’s failure to speak up at
sentencing was harmless. See, e.g., United States v. Torres-Diaz, 60 F.3d 445, 449
(8th Cir. 1995); United States v. Simkins, 953 F.2d 443, 446 (8th Cir. 1992).

      The sentence is affirmed.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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