Splits Noted in the State High Courts - 2/25-2/26

• Is it a Fifth Amendment Violation to Deny a Sentence Reduction Under Sentencing Guideline § 3E1.1 (acceptance of responsibility) when the Defendant Remains Silent? State v. Burgess, 2008 WL 495630, *9 (N.H. Feb. 26, 2008)

This criminal appeal only raised a claim under the self-incrimination provision of the New Hampshire Constitution, rather than the Federal Constitution. The former has been interpreted more broadly than the latter, but federal precedent is used by the State courts as relevant.

In sentencing this defendant to the maximum possible sentence for his attempt to escape by using a shoelace to disable his leg restraints (interesting, this actually worked), the trial court considered the defendant's silence as a reason for not granting clemency. The Supreme Court affirmed, finding that the defendant had admitted the underlying acts and therefore there was no violation of the privilege against self-incrimination.

In the course of its determination, the New Hampshire Supreme Court noted a split of circuit authority on the interpretation of §3E1.1: "We note that a majority, if not all, of the Federal Circuit Courts of Appeal that have addressed the issue left open in Mitchell have held that it is not a Fifth Amendment violation to deny a reduction of a sentence under the acceptance of responsibility provision of the Sentencing Guidelines, section 3E1.1, because a defendant refuses to admit guilt or express remorse. See United States v. Cohen, 171 F.3d 796 (3d Cir.1999); United States v. Larkin, 171 F.3d 556 (7th Cir.1999); United States v. Villasenor-Cesar, 114 F.3d 970 (9th Cir.1997); United States v. Clemons, 999 F.2d 154 (6th Cir.1993); United States v. Frazier, 971 F.2d 1076 (4th Cir.1992); United States v. Singer, 970 F.2d 1414 (5th Cir.1992); United States v. Lyles, 946 F.2d 78 (8th Cir.1991); United States v. Rogers, 921 F.2d 975 (10th Cir.1990); United States v. Parker, 903 F.2d 91 (2d Cir.1990); United States v. Henry, 883 F.2d 1010 (11th Cir.1989); United States v. Paz Uribe, 891 F.2d 396 (1st Cir.1989). But see United States v. Frierson, 945 F.2d 650 (3d Cir.1991); United States v. Oliveras, 905 F.2d 623 (2d Cir.1990); United States v. Perez-Franco, 873 F.2d 455 (1st Cir.1989). These courts reason that, in refusing to grant a reduction of a sentence under section 3E1.1, a sentencing court is simply denying a benefit to the defendant, rather than imposing a penalty upon his exercise of the privilege."