                                      [PUBLISH]



   IN THE UNITED STATES COURT OF APPEALS
          FOR THE ELEVENTH CIRCUIT



                No. 95-8120
        D. C. Docket No. 1:94-CR-149


UNITED STATES OF AMERICA,

                            Plaintiff-Appellee,
                   versus

HARRY LEON SMITH, III,

                         Defendant-Appellant.


Appeal from the United States District Court
    for the Northern District of Georgia

             (October 31, 1997)


Before   HATCHETT, Chief Judge,  TJOFLAT,
ANDERSON, EDMONDSON, COX, BIRCH, DUBINA,
BLACK, CARNES, BARKETT, Circuit Judges*, and
HILL**, Senior Circuit Judge.


DUBINA, Circuit Judge:


_____________________________
*Judge Frank M. Hull was appointed after this
case was orally argued, but was an active
member of the court at the time the case was
decided. She has elected not to participate
in the decisional process.

**Senior U.S. Circuit Judge Hill elected to
participate in this decision pursuant to 28
U.S.C. §46(c).




                      2
                            I.
   Appellant Harry Leon Smith, III, (“Smith”)

was indicted by a federal grand jury in the
Northern District of Georgia in a one- count
indictment. The indictment charged Smith with

running a check-kiting scheme in violation of
18 U.S.C. § 1344.         Initially, Smith entered a
plea of not guilty to the indictment but later

changed his plea to guilty.            The probation

officer recommended in her initial presentence
report (“PSR”) that Smith receive a three-

level    reduction    in    his   offense   level   for

acceptance     of    responsibility     pursuant     to
                      1
U.S.S.G. § 3E1.1.          After Smith objected to

   1
        § 3E1.1. Acceptance of Responsibility

         (a) If the defendant clearly
         demonstrates   acceptance    of
         responsibility for his offense,
         decrease the offense level by 2
                             3
   levels.
   (b) If the defendant qualifies
   for a decrease under subsection
   (a),    the     offense    level
   determined    prior     to   the
   operation of subsection (a) is
   level 16 or greater, and the
   defendant      has     assisted
   authorities in the investigation
   or prosecution of his own
   misconduct by taking one or more
   of the following steps:
      (1)   timely   providing
      complete information to
      the      government
      concerning    his    own
      involvement    in    the
      offense; or

      (2)   timely   notifying
      authorities    of    his
      intention to enter a
      plea of guilty, thereby
      permitting          the
      government   to    avoid
      preparing for trial and
      permitting the court to
      allocate its resources
      efficiently,
   decrease the offense   level   by 1
additional level.
                  4
several paragraphs of the PSR, the probation
officer withdrew her recommendation for the

reduction.   However,       at   sentencing,   Smith
still sought a reduction for acceptance of
responsibility.   The district court expressly

found that Smith had not manifested acceptance
of responsibility and denied Smith’s request.
   The district court determined that the

base offense level was 15 and sentenced Smith

to 18 months imprisonment, followed by five
years of supervised release.2       The government

then pointed out that the correct offense
level was 17, requiring a sentence in the 24-

30 month range.   The district judge admitted
his error and granted a two-level reduction



   2
         The court also ordered that Smith pay
restitution in the amount of $269,049.40 and
imposed a $50.00 special assessment.
                        5
for acceptance of responsibility so that he
would not be forced to increase the previously

imposed 18 month sentence:
      I’ll grant him the two-level decrease
      for acceptance of responsibility ....
      Because I’ve already imposed the 18
      months’ sentence and I hate to go back
      and change it and increase it. I don’t
      mind reducing it, but I hate to
      increase it.

(R3-27-28). The district court’s decision was
not based on reconsideration of its finding

that Smith failed to accept responsibility.
The    record   clearly   demonstrates      that   this

award was based on the court’s reluctance to

increase Smith’s sentence above the 18 month
term of imprisonment which the court already

had imposed. Thus, Smith received a two-level
reduction       that   he       did   not    deserve.

Surprisingly, he appealed.


                            6
      A panel of this court remanded the case to
the    district   court.        Concerned    that     the

district    court’s    decision     to    deny    the    §
3E1.1(b)     reduction     was    based      on     Smith
exercising his right to object to the PSR, the

panel    instructed      the    district     court      to
consider whether       Smith was entitled to an
additional one-level reduction for acceptance

of responsibility under U.S.S.G. § 3E1.1(b).

United States v. Smith, 106 F.3d 350 (11th
Cir.    1997)   (as   amended).    This     court    then
vacated that decision and ordered rehearing en

banc. United States v. Smith, 112 F.3d 473

(11th Cir. 1997).

                          II.
      The determination of whether a defendant
has     adequately    manifested     acceptance         of

responsibility is a flexible, fact sensitive

                           7
inquiry. See Joiner v. United States, 103 F.3d
961, 963 (11th Cir.), cert. denied, 117 S. Ct.
1857 (1997); United States v. Scroggins , 880
F.2d 1204, 1215 (11th Cir. 1989).          The panel

held that:
   [A] defendant may not be denied a
   reduction   [in   offense   level   for
   acceptance of responsibility] under §
   3E1.1 solely for exercising the right
   to challenge the legal propriety of his
   punishment under the criminal code
   and/or sentencing guidelines.... [I]t
   is impermissible to consider the
   challenge to the legal propriety of a
   sentence.

Smith, 106 F.3d at 352.       With this language,

the panel opinion went too far.      Our case law
permits a district court to deny a defendant

a reduction under § 3E1.1 based on conduct
inconsistent      with         acceptance        of
responsibility,   even       when   that     conduct

includes the assertion of a constitutional

                         8
right.      See United States v. Jones, 934 F.2d
1199, 1200 (11th Cir. 1991); United States v.
Henry, 883 F.2d 1010, 1011 (11th Cir. 1989).
In addition, frivolous legal challenges could

suggest      to     the    district    court    that     the
defendant has not accepted responsibility for
his    conduct.           Therefore,   we   hold   that    a

district court may consider the nature of such

challenges along with the other circumstances
in    the    case     when    determining      whether     a

defendant should receive a sentence reduction

for acceptance of responsibility.
      In    the   present      case,    although       Smith

referred to his objections to the PSR as
“legal objections based on legal arguments”
(R3-15), the record does not support this

characterization.            In fact, Smith, in his
objections to the PSR, contended that he did

                               9
not possess fraudulent intent with respect to
both offense conduct and relevant conduct.

These objections were factual, not legal, and
amounted to a denial of factual guilt.
          The panel opinion remanded the case to

the district court to determine whether Smith
was       entitled   to   an        additional   one-level
reduction. We see no need to remand this case

for resentencing.         Smith received a windfall

and clearly suffered no prejudice from the
                                                         3
district court’s sentencing error.
Accordingly, we affirm Smith’s sentence.

      3
       We note from the record in this case
that the government did not appeal. We assume
that is because the government, under the
terms of the plea agreement with Smith, agreed
to recommend a reduction for acceptance of
responsibility. If the government had taken
an appeal, however, we would vacate and remand
Smith’s sentence because, as previously
stated, the district court did not sentence
Smith within the correct guideline range.

                               10
AFFIRMED.




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