Outcome:The full Court vacated the panel opinion, ordered rehearing en banc, and affirmed the sentence.
Description:Harry Leon Smith, III, pleaded guilty to running a check-kiting scheme, and was sentenced pursuant to the Federal Sentencing Guidelines. The probation officer initially recommended in her presentence report that Smith receive a three-level reduction in his offense level for acceptance of responsibility pursuant to § 3E1.1, but later withdrew the recommendation after Smith objected to several paragraphs of the report. At sentencing, the judge refused to award Smith acceptance of responsibility, and on appeal a panel of the Eleventh Circuit Court of Appeals vacated Smith's sentence and remanded the case for resentencing. According to the panel, the sentencing judge improperly considered Smith's objection to the presentence report in denying acceptance. The full Court vacated the panel opinion, ordered rehearing en banc, and affirmed the sentence. The en banc Court ruled that it was not improper for a sentencing court to refuse to grant acceptance of responsibility based on a defendant's objections to his presentence report PSR; the refusal to award a reduction under § 3E1.1 may be based on conduct inconsistent with acceptance of responsibility, even when that conduct includes the assertion of a constitutional right. Ms. Weil drafted the successful en banc brief, and orally argued the case before the full Court.